By Arpit Agrawal :
The Constitution of India is not the free gift of the British Parliament. It is the end product of the research and discussion by a body of eminent dedicated representatives of the people. They prepared it after ransacking all the recognized Constitutions of the world and picking the greatest out of them keeping in view the aims and aspirations of freedom fighters. Throughout the freedom struggle, the mandate for Fundamental Rights was in forefront. The country was united that we should include all human, political, civil, economic, cultural and social rights. The Fundamental Rights envisioned by the Indian National Congress were eventually divided into two; (i) Political and Civil Rights; and (ii) Social and Economic Rights. The former are labelled Fundamental Rights and the latter are termed Directive Principles of State Policy. This division was adopted from Irish Constitution. The Universal Declaration of Human Rights and parts III and IV of the Constitution of India have much in common. The Universal Declaration of Human Rights was adopted on December 10, 1948. Within a year, the Constitution of India was adopted by the Constituent Assembly on November 26, 1949. Some Human Rights figure in Part III as Fundamental Rights and some others in Part IV as Directive Principles of State Policy. While Part III orders the State not to violate the Fundamental Rights, Part IV mandates the State to apply the Directive Principles in making laws. Article 32 and 226 provide for the execution of Fundamental Rights by Courts. However, Article 37 says that the provisions contained in Part IV shall not be enforceable by any court but the principles in that laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
It is interesting to note that although Fundamental Rights and Directive Principles appear in the Constitution as diverse entities, there was no such demarcation made between them during the period prior to the framing of the Constitution. Granville Austin in his book said; “both types of rights had developed as a common demand, products of the national and social revolutions, of their almost inseparable intertwining, and of the character of Indian Politics itself”. They were both placed on the same pedestal and treated as falling within the same category compendiously described as “Fundamental Rights” .
In the words of Justice Bhagwati, “It is not possible to fit Fundamental Rights and Directive Principles in two distinct and strictly defined categories, but it may be stated broadly that Fundamental Rights represent civil and political rights while Directive Principles embody social and economic rights. Both are clearly part of the board spectrum of human rights”
Fundamental Rights are of great importance for individual freedom, but these Fundamental Rights are a very minimal set of rights and therefore, human rights, which are derived from the inherent dignity of the human person and cover every aspect of life and no just a small number of preferred freedoms against the State, have tremendous significance. For the large number of people in a developing country like India, who are poor, downtrodden and economically backward, the only solution for making Fundamental Rights meaningful would be to restructure the social and economic, social, and cultural rights. The International Human Rights Conference called by the United Nations General Assembly in 1968 declared that ‘Since human rights and fundamental freedom are indivisible, the full realisation of Civil and Political rights without the enjoyment of economic, social and cultural rights is impossible.’
Parts III and IV taken together can be described as containing the philosophy of the Constitution. This philosophy can be described as the philosophy of the state of social service. The preamble and the Guiding Principles of State Policy reflect the undeniable anxiety of the authors of the Constitution as a powerful instrument for the economic improvement of the people and the improvement of their conditions. Equally remarkable in all relevant provisions is their determination to achieve this result in a democratic way through the rule of law. In other words, the provisions of Part III and Part IV considered in the light of the preamble emphasize the need to improve the social and economic conditions of the people and to attempt that task with the maximum permissible individual freedom guaranteed in the citizens.
The theme of Fundamental Rights and Directive Principles is to create socio-economic conditions where there will be distributive justice for all. The fundamental rights protect individual liberty, socioeconomic structure of the society. Directive Principles are the embodiment of the ideas and aspirations of the people of India and constitute the goals towards which the people expect the state to march for their attainment.
Views of Constitutional Makers – Jawaharlal Nehru and B.N. Rau
Nehru’s understanding of the relationship between Fundamental Rights and Directive Principles was mainly inspired by his sense of commitment of the goal of Constitutional realisation of a new Socioeconomic order in the country under which all people would have their basic needs fulfilled and all would enjoy their fundamental human freedom. This finds ample reflection in the following observation :
At present, the most important and important issue in India is how to solve the problem of the poor and the hungry. Wherever we turn, we are faced with this problem. If we can not solve this problem soon, our entire paper Constitution will become moot.
However, interestingly enough, although Mr. Pandit Jawaharlal Nehru, for that matter, most of the Constitutionmakers, was aware of the Constitutional obligation of the State to legislatively implement Directive Principles, he did not seem to visualise possible conflict between Part III rights and Part IV precepts. It was only Sir B.N. Rau who entertained doubts as to the efficacy of the unenforceable imperfect positive obligations in the face of the justiciable Fundamental Rights, particularly the right to property. In order to remedy the situation he suggested the addition of a new provision which reads as under:
“No law which may be made by the State in discharge of its duty under the first paragraph of this section and law which may have been made by the State in pursuance of the principles of Policy now set forth in Chapter III of this part shall be void merely on the ground that it contravenes the provisions of section or inconsistent with the provisions of Chapter II of this Part”.
Elucidating the main object of the inclusion of this new provision, Sir B.N. Rau stated:
The object of these amendments is to make it clear that in a conflict between the rights conferred by Chapter II which are for the most part rights of the individual, and the principles of policy set forth in chapter III, which are intended for the welfare of the State as a whole, the general welfare should prevail over the individual rights. Otherwise it would be meaningless to say, as clause 19 does say, that these principles of policy are fundamental, that is the duty of the State to give effect to them in its law.
Unfortunately, since the drafting Committee ignored Sir B.N. Rau’s suggestions, the new provision suggested by him did not find a place in the draft Constitution prepared by the Drafting Committee.
Presenting the draft Constitution to the Constituent Assembly, Dr. Ambedkar said that even if the Guiding Principles had no legal force, he was not ready either to recognize that they had no binding force or to accept that they were useless simply because they were inapplicable. Mr. Ambedkar did not express an opinion on the question of a possible conflict between fundamental rights and the guiding principles; therefore, the only available index was the non-adoption and implicit rejection by the Drafting Committee of the new provision suggested by Shri B.N. Rau who sought to give primacy to the Fundamental Principles Directive.
The Drafting Committee did not favour the idea of according supremacy to Directive Principles over Fundamental Rights and that it intended by implication that the legislative implementations of the Directive Principles was to be achieved within the framework of the Fundamental Rights. This issue was not adverted to even in the Constituent Assembly, although its members believed that inspite of their unenforceable nature, Directive Principles would have to be legislatively implemented as their implementation was mandatory .
Mr. Pandit Jawaharlal Nehru, while speaking on the Constitution (first amendment) Bill, 1951, stated:
“The Directive Principles of State Policy represent a dynamic move towards certain objective. The Fundamental Rights represent something static, to preserve certain rights which exist. Both are right. But somehow and sometimes it might so happen that the dynamic movement and that static standstill do not quit fit into each other… There is certain conflict in the two approaches, not inherently, because that was not meant.”
Fundamental Rights are superior to Directives
Soon after the commencement of the Constitution the judiciary started laying down an undue emphasis on the unenforceability of Directive Principles without taking in consideration their Fundamentalness and the Constitutional duty imposed upon the state to implement them. It gave rise to a belief that the Directive Principles were merely pious aspirations of little legal force and had to conform to and run subsidiary to the chapters on Fundamental Rights.
The first important case after the commencement of the Constitution of India on this issue was that of State of Madras v. Champakam Dorrairajan .
Constitutional Bench of the Supreme Court solemnly declared the law as follows:
“The Directive Principles of the State policy, which by article 37, are expressly made unenforceable by a court, cannot override the provisions are expressly made enforceable by appropriate writs orders or directions under article 32. The chapter of Fundamental Right is sacrosanct and not liable to be abridged by any legislation or Executive act or order except to the extent provided in the appropriate article in part III. The Directive Principles of State policies have to conform to and run subsidiary to the chapter of Fundamental Rights. In our opinion that is the correct way in which the provisions found in Part III and IV have to be understood.
However so long as there is no infringement of any Fundamental Rights to the extent conferred by the provisions in part III, there can be no objection to the state acting in accordance with the Directive Principles set out in part IV, but subject to the Legislative and Executive powers and limitations conferred on the state under different provisions of the Constitution. ”
Prof. P.K. Tripathi in his article on the Directive Principles of State Policy characterised the lawyers approach to the Directive Principles as parochial, injurious and unconstitutional. The approach dominated the judicial approach was the most damaging opinion expressed on the value and effectiveness of the Directive Principles.
The proper approach according to him was to interpret the Fundamental Rights in the light of Directive Principles, to observe the limits set by the Directive Principles on the scope of Fundamental Rights and if at all one of the two sets of principles is to conform to other, it is the fundamental rights that should be made to conform to and seek their synthesis in the Directive Principles of the state policy, not the other way round .
Scope and ambit of Fundamental Rights to be determined with the help of Directive Principles (harmonious construction)
In its second phase of interpretation, the Supreme Court placed reliance on the Directive Principles for validating a number of legislations that were found not violative of Fundamental Rights. The directive Principles were regarded as a dependable index of;
1) Public Purpose, and
2) Reasonableness of restrictions on Fundamental Rights.
In State of Bihar V. Kameshwar Singh , the Supreme Court relying upon the Directive Principles incorporated in Article 39(b) held that certain zamindari abolition laws had been passed for a public purpose within the meaning of Article 31(2). It was held that the State ownership or control over land was a necessary preliminary step towards the implementation of Directive Principles and it could not but be a public purpose. It was further held that the Directive Principles were not merely the policy of any particular party but were intended to be principles fixed by the Constitution for directing the State Policy whatever party might come into power.
The Supreme Court took a little uncertain and complicated view in Mohammed Hanif Qureshi v. State of Bihar . In this case, for the first time the Supreme Court introduced the doctrine of harmonious construction as a new technique of Interpretation in this field. But this new technique, according to S.R. Das, CJ has to be applied in such a way as not to take away or abridge Fundamental Rights.
The same view was reiterated in re Kerala Education Bill with a significant modification. Quoting his own ruling in the Champakam Case, S.R. Das, CJ observed:
“Nevertheless in determining the scope and ambit of the Fundamental Rights relied on by or on behalf of any person or body of the court may not entirely ignore these Directive Principles of state policy laid down in Part IV of the Constitution but should adopt the principles of harmonious construction and should attempt to give effect to both as much as possible.”
Justice Chinappa Reddy in A.B.S.K. Sangh (Rly) v. Union of India articulated that:
“It follows that it becomes the duty of the court to apply the Directive Principles in interpreting the Constitution and the laws. The Directive Principles should serve as the courts as a code of interpretation. Fundamental Rights should thus be interpreted in the light of Directive Principles and the latter should, whenever and wherever possible, be read into the former. Every law attached on the ground of infringement of a Fundamental Right should among other consideration, be examined to find out if it does not advance one or other of the directive principle .
Without thereby making the Guidelines justiciable as such, the courts have begun to implement the values that underpin its principles to the greatest extent possible.
Supremacy of Directive Principles
Realising not only to the importance of the Directive Principles in the context of the appalling socioeconomic conditions of the Indian society but also the inadequacy of the existing Constitutional framework for the effective implementation of the legislative measures of socio economic reform parliament sought to give primacy to Part IV over Part III of the Constitution. The first attempt in this direction was made with the enactment of the Constitution 25th Amendment Act 1971 introducing a new provision under Article 31C into the Constitution.
The first part of Article 31C provides that:
“No law which is intended to give effect to the Directive Principles contained in the Article 39(b) & 39(c) shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or 19”
The Second part of Article 31C provided that “no law containing a declaration that it is for giving effect to such policy can be called in question on the ground that it does not in Act give effect to such policy”.
The validity of the first part of Article 31C was upheld in the Fundamental Right Case33 but the second part of this article which barred the judicial scrutiny of such laws was struck down as unconstitutional.
Justice Mathew went farthest in attributing to directive principles a significant place in the Constitutional scheme. According to him:
“In building up a just social order, it is sometimes imperative that the Fundamental Rights should be subordinate to Directive Principles. Economic goals have an incontestable claim for priority over ideological ones on the ground that excellence comes only after existence. It is only if men exist that there can be Fundamental Rights .
Conclusion
Although, Article 31C was struck down in Minerva v. Union of India Part IV remains an important part of the constitution in recognizing the fundamental rights as intended by the makers of the constitution. The goals set out in Part IV have to be achieved without the abrogation of the means provided for by Part III.
Chief Justice Chandrachud in his judgement in this case said:
“The significance the perception that Part III & Part IV together constitutes the core commitment to social revolution and they together are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution.”
Justice Bhagwati, in dissenting judgement, said: “The Fundamental Rights are no doubt important and valuable in a democracy, but there can be no real democracy without social and economic justice to the common man and to create socio-economic conditions in which there can be social and economic justice to very one, is the theme of the Directive Principles. It is the Directive Principle which nourishes the roots of our democracy, provides strength and vigour to it and attempt to make it a real participatory democracy which does not remain merely political democracy but also becomes social and economic democracy with Fundamental Rights available to all irrespective of their power, position or wealth .”
The basic issue in the controversy over the relationship of Fundamental Rights with Directive Principles ultimately boils down to the choice between human freedom and unfettered socio-economic development. The founding fathers have wisely answered the question as not being that of a choice and confrontation, but of accommodation, between the two. That accommodation is exemplified by the restrictions to which all Fundamental Rights are subjected. Any resurrection of this controversy, it is submitted, is going back to square one and could hardly be sustained either on rational or practical considerations or on the decades long experiences of the nation. It is not surprising, therefore, that pleas made in support of the supremacy of one over the other sound rhetorical and fail to carry conviction.