~Relationship between Fundamental Rights and Directive

Principles of State Policy

Submitted by

Shourya Malhotra
BBA.LLB
Division A


Of
Symbiosis Law School, NOIDA
Symbiosis International University
PUNE


In

November, 2011


Under the guidance of
Ms. Ashmita Bisarya
Course in Charge,
Constitutional Law
Symbiosis Law School,
NOIDA-201301



C E R T I F I C A T E


The project entitled 'Relationship between Fundamental Rights and Directive Principles Ior
State Policy submitted to the Symbiosis Law School, NOIDA Ior Special Contracts as part
oI internal assessment is based on my original work carried out under the guidance oI Ms.
Ashmita Ma`am Irom 11th November, 2011 to 20th November, 2011. The research work
has not been submitted elsewhere Ior award oI any degree.

1. The material borrowed Irom other sources and incorporated in the thesis has been duly
acknowledged.

2. I understand that I myselI could be held responsible and accountable Ior plagiarism, iI any,
detected later on.






Signature oI the candidate


Date: 20
th
November, 2011

ACKNOWLEDGMENT


I would like to thank my ProIessor oI Ms. Ashmita Bisarya, Ior her sincere and dedicated
support system that she provided in pursuance oI the successIul completion oI this project.

I would also like to thank my colleagues Ior helping me critique my project at every point oI
time.


Thank You.

















INDEX

Introduction

Fundamental Rights are sacrosanct

Fundamental Rights and Directive Principles are complimentary

Directive Principles are the spirit of the constitution

Conclusion









INTRODUCTION
The Relationship between the chapters on Iundamental rights and directive principles Ior state
policy has intrigued the legal community ever since the promulgation oI the Constitution. The
courts have moved through various phases in their eIIorts to uphold the intention oI the Iramers
oI the Constitution, and also to address the problems Iacing modern day India. Through the
years three views on the relationship between rights and directive principles developed. The
Iirst is that the Iundamental rights carry more weight and should be given preIerence in the
event oI conIlict. The second is that the two are oI equal importance, and that under all
circumstance they should be harmonized. The third is that directive principles are central to the
governance oI the country and should thereIore carry more weight than Iundamental rights.
Since the inception oI the constitution it was clear that some stress would develop between the
interests oI the individual at micro level and the interests oI the community at macro level. The
individual rights at the micro level cannot be magniIied to interIere and impede the
acceleration oI macro directs and dynamics otherwise the dynamism oI Indian people moving
along as a nation to complete the unIinished Indian revolution will be lost.
1

In essence, the diIIerences between the chapters on Iundamental rights and directive principles
can be summarized as Iollows:
O Fundamental rights prevent the state Irom acting, while directive principles provide a
Iramework within which the state is required to act.
O Fundamental rights can be directly enIorced by the courts by means oI sanctions, while the
directive principles are explicitly described as non-justiciable` by the Constitution. Their
enIorceability depends on political and moral pressure. And they can be oI direct legal
consequences only in terms oI interpretation.
O Fundamental rights are, due to their justiciable character, more exact and speciIic than the
directive principles, which are Iairly vague general and programmatic.
The obvious question arising Irom these two chapters is which one takes preIerence iI an
irreconcilable conIlict occurs? The constitution at Iace value makes it clear that in the event oI
such conIlict the Iundamental rights are enIorceable while the directives are not.
2
Sir B N Rau,
one oI the constitutional advisors to the constituent assemble, proposed that iI individual rights

1
5botmo
2
oJ2
were in conIlict with those relating to state policy aimed at the welIare oI all the people, the
general welIare should prevail`.
3
The proposal was not accepted by the constituent assemble
and as a consensus those who argued that the directive principles should be non-justiciable
won the day`.
Although the state is thereIore under an obligation to implement the directives, it still has to
adhere to the other constitutional provisions, including those on Iundamental rights.
4
No
legislation even that aimed at IulIilling the directive principles may inIringe on Iundamental
rights.
5
Should the directives and Iundamental rights not be in direct conIlict, the courts have to
construe them as harmoniously as possible?
Through the years the courts have adopted various attitudes to the relationship between
Iundamental rights and directive principles. Initially Iundamental rights were sacrosanct` and
sovereign to directive principles. Later the courts stressed the interpretative harmony and
nexus, and Ior the past decade they have tended to uphold legislation which, even though it
may limit Iundamental rights, Iurthers the ideals oI the directive principles. The various
attitudes oI courts in their eIIorts to interpret the Constitution accurately are discussed below.

FUADAMEA1AL RICH1S ARE SACROSAAC1
The Iirst phase aIter the promulgation oI the constitution was characterized by the supremacy
oI Iundamental rights over the directive principles. Should legislation adapted in Iurtherance oI
the directive principles inIringe on Iundamental rights, it would be declared null and void. This
attitude was summarized, 'We have seen that the directive principles are not 'law at all but
are correctly described as moral precepts or as ideals to be Iollowed in governing the country.
Whereas, the Iundamental rights conIer enIorceable legal rights, directive principles consider
no right to anyone. It is strictly not accurate to speak oI a conIlict between Iundamental rights
and laws enacted by the legislature to implement directive principles. It is obvious that in any
conIlict between constitutional and statutory rights, the Iormer must prevail.
6
The Supreme
Court held the same view in Madras v Champakam Dorairafan.
7
The court`s attitude during

J
oJ7
4
5tote of 8lbot v komesbwot 1952 5c 292
5
n M Oootesbl v 5tote of 8lbot 1958 5c 7J1
6
5eetvol
7
1951 Alk 5c 226
this phase was that the Iundamental rights were superior to directive principles. However,
beIore ruling in Iavour oI Iundamental rights- in the event oI a conIlict, the court should Iirst
attempt to harmonize the two sets oI principles.
In the Madras case the state government reserved a certain number oI places in medical and
engineering colleges on a community basis. This case provided the Iirst opportunity Ior the
courts to Iormulate their attitude towards the relationship between Iundamental rights and
directive principles. The petitioners argued that such reservations were in conIlict with the
Iundamental rights which stated that no individual shall be denied admission to an educational
institution on the grounds oI religion race caste or language.
8
The state on the other hand
argued that the places were reserved in Iurtherance oI the directive principles
9
, which aims to
protect the scheduled castes and tribes. The state believed that it was under a constitutional
obligation to give eIIect to the directive principles, and that the reservation was thereIore valid.
The Supreme Court rejected the state`s argument and ruled that the reservation was void owing
to its encroachment on Iundamental rights. The reasoning oI the court was. 'The directive
principles oI state policy, which by art 37 are expressly made unenIorceable by a court, cannot
override the provisions Iound in part 3(Fundamental Rights) which, notwithstanding other
provisions, are expressly made enIorceable. The chapter oI Iundamental rights is sacrosanct
and not liable to be abridged by any Legislative or executive Act or order, except to the extent
provided in the appropriate article in part 3. The directive principles oI state policy have to
conIorm and run as subsidiary to the chapter oI Iundamental rights, however, so long as there
is no inIringement on any Fundamental Right, There can be no objection to the state acting in
accordance with the directive principles.
10

The essence oI the court`s argument is that although the state is required by the constitution to
initiate programmes to comply with the directive principles, such action is subject to the
Iundamental rights. The state should thus be aware that 'while proIessing to implement a
directive, it cannot pass a law which is inconsistent with the provision oI part 3 (Fundamental
Rights) which is enIorceable by judicial process.
11

However, the mere Iact that a speciIic mandate contained in the Constitution is not enIorceable
does not mean that such a mandate is not oI great importance. Hedge emphasis that the

8
A29(J)
9
A46
10
lblJ ot 5J1
11
koqzl op clt oote 19 ot 94J
Constitution contains many important mandates which may not be enIorceable by courts oI
law, but that does not mean that they are oI lesser value than those that can be enIorced.
This line oI argument was supported in M H Qureshi v State Of Bihar, where there was a direct
conIlict between the Iundamental right to carry on a business
12
and the directive principles
which requires the state to take steps to prohibit the slaughter oI certain animals.
13
The court
argued that no law may abridge Iundamental rights, including those laws accepted in the
Iurtherance oI the directive principles. The court concluded that a harmonious interpretation
must be placed upon the Constitution, and so interpreted it means that the State should
implement the directive principles but it must do it in such a way as to not take away or
abridge Iundamental rights.
This principle was again debated in In re Kerela Education Bill, 1957.
14
In this case, a bill
required schools belonging to minorities not to charge any Iees Ior children attending primary
classes.
15
This provision made it impossible Ior minorities to carry on with educational
institutions established and administered by them. The bill made no provision Ior the state to
subsidize the schools to cover their losses. The state argued that the bill was in Iurtherance oI
the directive principles which required the state to provide Iree and compulsory education Ior
all the children up to the age oI Iourteen.
16
The court rejected the state`s reasoning and ruled
that the directive principles could not be implemented at the expense oI the minorities, and that
should the state want to implement Art 45 it would have to cover the losses suIIered by the
minorities concerned.
The Iirst phase oI Iundamental rights as being sacrosanct was thereIore characterized by the
Iollowing arguments.
17

O The constitution is supreme and all laws and executive action contradiction it, are void.
Fundamental rights constitute Iundamental law while directive principles do not. No law or
executive action which contravenes the directive principles is void.

12
A 19(1)(q) to ptoctlce ooy ptofessloo ot to cotty oo ooy occopotloo ttoJe ot bosloess
1J
A48 1be stote sboll 1oke steps fot ptesetvloq ooJ lmptovloq tbe bteeJs ooJ ptoblbltloq tbe slooqbtet of
cows ooJ colves ooJ otbet mllcb ooJ Jtooqbt cottle
14
1959 5ck 995
15
1be lssoe lo Jlspote wos cloose 20 of tbe 8lll wblcb JetetmloeJ tbot oo fee sboll be poyoble by ooy popll fot
ooy toltloo lo tbe ptlmoty closses lo ooy qovt ot ptlvote scbool
16
A45 1be stote sboll oJeovoot to ptovlJe wltblo o petloJ of teo yeots ftom tbe commeocemeot of tbls
coostltotloo fot ftee ooJ compolsoty eJocotloo fot oll cbllJteo ootll tbey complete tbe oqe of footteeo yeots
17
5eetvol op clt oote J2 ot 1622
O The directive principles constitute a moral Iramework Ior state action and should ne interpreted
harmoniously together with Iundamental rights iI possible. Should the conIlict be
irreconcilable, Iundamental rights carry more weight.
O The directive principles have not got the same constitutional standing as Iundamental rights.
Without the protection oI Iundamental rights no liberal democracy can ever be established. On
the other hand, all states have a social, political and welIare responsibility towards their people,
irrespective oI whether their constitutions contain directive principles or not.
O Fundamental rights can be implemented without hesitation. The chapter on Iundamental rights
has aIIected the whole Indian social Iabric by subjecting legislative and executive despotism
to the discipline oI Iundamental rights in order to protect basic human rights and values. The
directive principles have, owing to their voluntary nature, not had such a drastic eIIect on
government and society. Many oI the ideals contained in the directive principles have not been
attained, even by highly industrialized countries.



FUADAMEA1AL RICH1S AAD DIREC1IJE PRIACIPLES ARE
COMPLIMEA1ARY

The next phase in the battle between Iundamental rights and directive principles was
characterized by eIIorts to interpret them in such a way that they are seen as complementary
and supplementary to each other. The new approach was motivated by the criticism that
previous decisions emphasised Iundamental rights to such an extent that very little came Irom
implementing the directive principles. Sharma observes that it is tragic to note that the
judiciary, when it comes to social change, has Iailed to appreciate the insights oI the
constitution and needs oI the society and has not shown evidence oI Ioresight oI the inevitable,
Iuturistic projections. He argues that our judiciary has unwillingly allowed itselI to be unduly
obsessed by static jurisprudential concepts, procedural technicalities and rules oI construction
born and grown in Ioreign soil and appropriate to other developed societies.
One oI the Iirst cases in which the Supreme Court adopted a more conciliatory approach was
that oI Saffan Singh v State of Rafasthan.
18
In this case the court heard that iI the chapter on
Iundamental rights were not amended, there was a great danger that the much needed socio
economic reIorms would not be able to take place. The court stressed that the Iact that the
Iundamental rights and directive principles Iormed the basis oI the constitution and that they
should thereIore be interpreted harmoniously. Although the court maintained that the
Iundamental rights were not amendable, a new attitude was initiated, namely that these rights
should be interpreted in the light oI the ideals set by the directive principles.
An important case in the development oI the relationship between Iundamental rights and
directive principles was Chandra Bhawan Boarding and lodging Bangalore v The state of
Mysore.
19
In this case the petitioner challenged the provisions oI the Minimum Wage Act,
1948 on the basis that it violated Art 14 oI the constitution. He alleged that the act conIerred
Unguided and uncontrolled` discretion to the government to Iix minimum wages, which
interIered with the Ireedom oI trade. The state replied that in terms oI the directive principles it
was its duty to provide a basis oI minimum wages.
The court ruled that there was no conIlict between the Iundamental rights and directive
principles and that they were complementary and supplementary. Directive principles enable
the state to place various duties on its citizens, and is such duties are not IulIilled the hopes and
aspirations aroused by the constitution will be belied iI the minimum oI the lowest oI our
citizens are not met. The court concluded that Ireedom to trade does not mean Ireedom to
exploit. The provisions oI the Constitution are not erected as barriers to progress. They provide
a plan Ior orderly progress towards the social order contemplated by the preamble to the
constitution ... while rights conIerred under Part 3
20
are Iundamental, the directives given
under Part 4
21
are Iundamental in the governance oI the country. We see no conIlict on the
whole between the provisions contained in Part 3 and 4. They are complementary and
supplementary to each other.`
This equality oI status oI the chapters on Iundamental principles and directive principles was
Iormulated as Iollows in Keshavananda Bharati v State of Kerela
22
, Perhaps the best way oI
describing the relationship between the Iundamental rights oI individual citizens, which

18
Alk 1965 5c 845
19
1970 5ck 600
20
looJomeotol klqbts
21
ultectlve ltloclples
22
197J 4 5cc 225
imposed corresponding obligations upon the state and the directive principles, would be to
look upon the directive principles as laying down the path oI the country`s progress towards
the allied objectives and aims stated in the preamble, with individual rights as the limits to that
path, which could be mended or amended by displacements, replacements or curtailments oI
enlargements oI any part according to the needs oI those who had to use that path.
The second phase was thus characterised by the Supreme Court`s view that instead oI there
being a hierarchy, the Iundamental rights and directive principles were complementary. The
reasoning in this phase was as Iollows:
O The duty oI the court is to establish and maintain a balance between the interests oI the
individual and the obligations oI the state to undertake socio-economic programmes Ior the
beneIit oI all the people.
O Rather than asking that which set oI principles carry more weight, the directive principles
should be used as an instrument to interpret and better understand the scope oI Iundamental
rights.
O The courts were inclined to be more pragmatic in comparison with the previous dogmatic
stance, which leIt very little room Ior the state to IulIil its constitutional duties.

DIREC1IJE PRIACIPLES ARE 1HE SPIRI1 OF 1HE COAS1I1U1IOA

The current phase oI development in the relationship between Iundamental rights and directive
principles is characterized by the activist role that the courts are playing in eIIecting socio-
economic change. This approach is based on primarily two arguments. The Iirst is that it was
the intention oI the Iramers oI the constitution that the state should not only be aware oI what
was expected oI it, but that it should have constitutional support Ior undertaking certain socio-
economic projects. The second is that, due to the conservative approach oI the courts through
the years, the state has not succeeded in eIIectively IulIilling its obligations as Iormulated in
the directive principles. The desperate conditions, in which millions oI people still Iound
themselves, necessitated a joint approach by the legislature, the executive and the judiciary to
address the intense socio- economic disparities.
The new philosophy was reIlected in the watershed case in 1977 oI Maneka Gandhi v
UOI
23
.The petitioners owned a textile company which had been nationalized under the Sick
Textile Act, 1974. The petitioners questioned the constitutional validity oI the act as well as the
amendment stated that no amendment to the constitution could be called into question by any
court and that there was no limitation on the power oI parliament to amend the constitution.
24

The court held that the amendment was void due to the Iact that parliament could not distort
the constitution out oI recognition by amending it. The petitioners argued that Iundamental
rights could not be inIringed and that the disputed art 31c virtually abrogates and destroys
Iundamental rights into normal times.
The court declared that parliament had not the power to destroy the guarantees oI the
Iundamental rights to achieve goals set by the directive principles. It concluded that the goals
set out in part 4, have thereIore, to be achieved without the abrogation oI the means provided
Ior by part 3. It is in this sense that parts 3 and 4 together constitute the core oI our
Constitution and combine to Iorm its conscience. Anything that destroys the balance between
the two parts will ipso Iacto destroy an essential element oI the basic structure oI our
constitution.
The court concluded that parliament had acted outside its authority by giving precedence to the
directive principles over the Iundamental rights oI Art 14 and 19.
This decision was questioned and over ruled by the Supreme Court in Sanfiv Coke Mfg Co v
M/s Bharat Coking Coal Ltd.
25
The court suggested that the part oI the Minerva case which
dealt with Art 31c was an obiter dictum and thereIore not binding. The court thereIore ruled
that the Coking Coal Mines Act, 1972 was protected by Art 31c oI the constitution and had
preIerence over the Iundamental rights on the basis that it gave eIIect to Art 39(6)
26
oI the
directive principles. The decision oI the court in Sanijiev Coke supports the argument that
Iundamentalness oI the directives is based on natural law and they are equally Iundamental
along with Iundamental rights.
27


2J
1978 1 5cc 248
24
AJ68
25
Alk 198J 5c 2J9
26
1he sLaLe shall endeavour Lo ensure LhaL Lhe ownershlp and conLrol of Lhe maLerlal resources of Lhe
communlLy are so dlsLrlbuLed as besL Lo serve Lhe common good
27
k ! 8eddy 'lundamenLalness of lundamenLal 8lghLs And ulrecLlve rlnclples ln Lhe lndlan ConsLlLuLlon ' 1980
!ournal Cf Lhe lndlan Law lnsLlLuLe 407
The uncertainty oI the two conIlicting decisions by the Supreme Court was settled in State of
Tamil Nadu v L Abu Kaview Bai.
28
In this case, the court held that although the directive
principles were not enIorceable, it was the duty oI the court to make a real attempt to
harmonize them with the Iundamental rights. The court reIerred to the decisions oI the
Constituent Assembly to provide Ior two separate chapters. The court emphasized that iI the
decision oI various courts over the years were compared, it was clear that the court should
make a real attempt at harmonizing and reconciling the directive principles and the
Iundamental rights and any collision the two should be avoided as Iar as possible. ThereIore, in
order Ior a statue to be upheld, a close nexus should exist between the statute and the
objectives oI the speciIic directive principle. Such a nexus should be reasonable; the protection
given to it by Art 31c becomes complete and irrevocable`.
The past decade has witnessed are evolution oI the courts role in the Iield oI Iundamental
rights and directive principles. Whereas Ior the Iirst two decades aIter the promulgation oI the
constitution the Supreme Court Iollowed a very stringent approach as to the limits oI directive
principles it has lately shown a great interest in the implementation oI DP`s/ According to
Sathe the Supreme Court no longer considers the principles as less important than
Iundamental rights in order to accommodate the directive principles.
29

The new role oI the courts is in essence the result oI years oI debate on the extent oI judicial
review as well as to what extent the courts should make themselves accessible to the
underprivileged who sudden Irom a denial oI human rights. The philosophy oI the third phase
is well summarized in Randhir Singh v Union of India
30
as 'Hitherto the equality clauses oI the
constitution, as other articles oI the Constitution guaranteeing Iundamental and other rights,
were most oIten evoked by the privileged classes Ior their protection and advancement and Ior
a Iair oI satisIactory distribution oI the buttered loaves amongst themselves. Now, thanks to a
rising social and political consciousness and the Iorward looking posture oI his court, the
underprivileged also are claiming Ior their rights.
The third and current phase oI the relationship between Iundamental rights and directive
principles has thus been characterized by the Iollowing:

28
Al8 1984 SC 723
29
SaLhe 'ConsLlLuLlonal Law' 1983 Annual Survey Cf lndlan Law 219
30
Al8 1982 SC 879
O The courts are much more aware oI and attentive to their obligation to implement socio-
economic upliItment programmes and to ensure decent welIare Ior all.
O This realization has caused the courts to be more sensitive to the obligations placed on the state
by the directive principles. The state has a duty to all its citizens to adhere to that part oI the
constitution which describes the directive principles as Iundamental to the governance oI the
country.
O The courts have thereIore been using the directives as an instrument to determine the extent oI
public interest in order to limit the extension oI Iundamental rights. In doing so they have
upheld a number oI statues on the ground oI public interest, which in other circumstances may
have been nulliIied.







CONCLUSION

The Iounding Iathers oI the Indian Constitution attempted to harmonize the seemingly
conIlicting claims oI Individual liberties and social justice.
31
Initially the independence
struggle was characterized by claims Ior protection against arbitrary state action. Later, it was
realized that the Iundamental rights would be without much meaning unless social-economic
renewal occurred. This realization was Iormulated by Nehru as, 'India`s immediate goal can
only be considered in terms oI the ending oI the exploitation oI her people. Politically, it must
mean independence and cession oI British connection, economically and socially, it must mean

31
S k Sharma !usLlce and Soclal Crder ln lndla (1984) 176
the ending oI all special class privileges and vested interests.
32
. It was thereIore realized by
the Iounding Iathers Ior those who suIIer Irom want and hunger; the so called Iundamental
rights would be meaningless and remain only paper rights. The result is that two separate
chapters, one on Iundamental rights and the other on directive principles were included in the
constitution. ThereIore, the Iollowing conclusions are drawn:
O The directive principles as such are not justiIiably enIorceable owing to the economic,
administrative, and technological and manpower obligations they place on the state, whereas
the Iundamental rights are legally backed and enIorceable.
O The directive principles are Iundamental to the governance oI the country, and state action
should be aimed at IulIilling the directives. In the Interpretation oI Iundamental rights and
legislation, the directive principles should be kept in mind to ensure that socio-economic
renewal occurs.
O The directive principles and the preamble constitute the soul, spirit and hope oI the
constitution. The aspirations oI the Iounding Iathers and the Indian nation to establish a society
in which Iundamental rights are respected but which also addresses the socio economic
realities, are summarized in the chapters on Iundamental rights and directive principles.
O The diIIerence between Iundamental rights and directive principles does not derive Irom the
Iirst generation versus second generation human rights debate. Several rights that can be
regarded as oI economic, educational and cultural value are included in the chapter on
Iundamental rights, and are thereIore justiciable.
O The directive principles are in essence constitutional letters oI instruction` to all governmental
institutions by the ultimate sovereign authority, the Indian people.





32
CuoLed by !udge 8hagwaLl ln Mlnerva Mllls LLd v uCl