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Introduction

The justiciability of Fundamental Rights and non-justiciability of Directive Principles on the one
hand and the moral obligation of State to implement Directive Principles (Article 37) on the
other hand have led to a conflict between the two since the commencement of the Constitution.
In the Champakam Dorairajan case (1951), the Supreme Court ruled that in case of any conflict
between the Fundamental Rights and the Directive Principles, the former would prevail. It
declared that the Directive Principles have to conform to and run as subsidiary to the
Fundamental Rights. But, it also held that the Fundamental Rights could be amended by the
Parliament by enacting constitutional amendments acts.

As a result, the Parliament made the First Amendment Act (1951), the Fourth Amendment Act
and the Seventeenth Amendment Act to implement some of the Directives. The above situation
underwent a major change in 1967 following the Supreme Court's judgement in the Golaknath
case (1967). Whenever conflicts arise between fundamental rights and directive principles,
fundamental rights prevail over the directive principles because, in terms of Arts. 32 and 226,
fundamental rights are enforceable by the courts.

If a law is in conflict with a fundamental right, it is declared void by the Supreme Court. But no
law can be declared void on the ground that it is violative of a directive principle. In 1951, in
Champakam Dorairajan vs. the state of Madras, the Supreme Court held “The chapter on
Fundamental Rights is sacrosanct and not liable to be abridged by any legislative or executive
act. The Directive Principles of State Policy have to conform and are subsidiary to the chapter on
Fundamental Rights.”

OBJECTIVE OF THE STUDY

1.To analyze and understand the concepts of Fundamental rights and DPSPs individually

2.To find out the relationship between the two concepts of Fundamental Rights and directive
Principles of State Policy.

3. To study the tussle of the legislature and Judiciary regarding both the concepts

4. To study in brief some important court judgments which lead to the current situation of the
Fundamental Rights and DPSPs

5. To critically evaluate if Fundamental Rights and DPSPs are conflicting or complementary.

SCOPE OF THE STUDY

This project covers Fundamental Rights and Directive Principles of State Policy as two
individual concepts. The project later sees the merging of both these concepts and the conditions
that prevailed in India when the tussles over Fundamental Rights and Directive Principles of
State policy took place. This project, though in brief also discusses some famous cases which
were of utmost importance in the formation of current laws and scenarios.

ORIGIN OF FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE


POLICY

Although, the Fundamental Rights and the Directive Principles of State Policy (hereinafter
DPSPs) appear in the Constitution distinct entities, historically both had a common origin.
Initially, the leaders of the Independent Movement had drawn no distinction between the positive
and the negative obligations of the State. Both had developed as a common demand, as products
of social and national and social revolutions, of their almost inseparable intertwining and
character of the Indian politics itself. The demand for certain minimal individual rights dates
back to 1895, when the Indian National Congress was formed. Indians wanted the same rights
and privileges as that enjoyed by the British in India. The first explicit demand for the
fundamental rights was made in the Constitution of India Bill, 1985. Article 16 of the Bill laid
down a variety of rights including free speech, free-state education etc. The objective of
guaranteeing certain undeniable rights or irrevocable rights against oppression was at the back of
the resolution of Madras Congress in 1927 which provided setting up of a committee to draft ‘a
Swaraj Constitution of India’ on the basis of Declaration of Rights and the Nehru Report,
produced by the Committees headed by Motilal Nehru, in 1928. A genesis of many provisions
which has been included under Directive Principles in the Constitution of 1949, found its place
in the Nehru Report, under the heading of Fundamental Rights.

The idea that some of the rights that are to be incorporated in the Constitution might be non-
justiciable was clearly formulated, for the first time in the Sapru Committee Report, in 1945,
though it left the further development of that idea to legal experts . It observed that the rights are
to be divided in such a manner that “breaches of some may form the subject of judicial
pronouncement, and the breaches of others may be remedied without resort to the courts."

The inclusion of non-justiciable rights in the sub-committee on Fundamental Rights was met
with mixed reactions, some being pessimistic, while others optimistic. T. T. Krishnamachari
called it as a “veritable dustbin of sentiments attaching no value." But to Ambedkar, the
Directives were like “Instruments of Instructions’, and were hailed as the essence of the
Constitution. According to him it was the most cardinal and important provision of the
Constitution.

The enumeration of the fundamental rights and the non-justiciable directives was also performed
by Sir B.N. Rau, in his draft of Fundamental Rights, presented by him in the Fundamental Rights
Sub-Committee, which was appointed by the Constitution. It was pointed out by him that some
of the provisions could not be enforced by legal action in courts of law, like the rights to work,
leisure, and the like guaranteed under the Soviet Constitution (1936), by Articles 118-121. He
therefore divided the rights in the draft into two groups- Group A and Group B. Group B
included the Fundamental Rights which were to be “enforced by legal action". These rights later
came to embodied in Part III of the Constitution. In Group A on the other hand, Sir B.N. Rau
included the non-justiciable rights, which though could not be enforced by an individual in a
court of law, was yet to be a part of the Constitution because of their educational value.

In the Draft Constitution, the fundamental rights were included in Part III, which consisted of
Articles 7-27, while the non-justiciable rights were placed under Part IV, with the heading
Directive Principles of State Policy, which consisted of Articles 28-40. It was emphasized that
the need for incorporating the directives in the Constitution was because they were “fundamental
in the governance of the country". The Drafting Committee and the Constituent Assembly did
not accept the amendment proposed by Sir B.N. Rau which would have given primacy to laws
made to implement Directive Principles, which conflicted with one or more Fundamental Rights.
Though Dr. Ambedkar admitted that the Directive Principles have no legal force, he was not
prepared to admit that they were useless.
Soon after the commencement of the Constitution, an undue emphasis was laid on the
unenforceability of the Directive Principles without taking into account their importance and the
constitutional duty imposed upon the State to implement them. The judicial attitude towards the
relationship between Part III and Part IV is discussed in the next section.

FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY

The Fundamental Rights in Indian constitution acts as a guarantee that all Indian citizens can and
will live their lives in peace as long as they live in Indian democracy. They include individual
rights common to most liberal democracies, such as equality before the law, freedom of speech
and expression, freedom of association and peaceful assembly, freedom of religion, and the right
to constitutional remedies for the protection of civil right. An important feature of the
constitution is the Directive Principles of State Policy. Although the Directive Principles are
asserted to be "fundamental in the governance of the country," they are not legally enforceable.
Instead, they are guidelines for creating a social order characterized by social, economic, and
political justice, liberty, equality, and fraternity as enunciated in the constitution's preamble. The
Forty-second Amendment, which came into force in January 1977, attempted to raise the status
of the Directive Principles by stating that no law implementing any of the Directive Principles
could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights.
The amendment simultaneously stated that laws prohibiting "antinational activities” or the
formation of “antinational associations” could not be invalidated because they infringed on any
of the Fundamental Rights. It added a new section to the constitution on "Fundamental Duties"
that enjoined citizens "to promote harmony and the spirit of common brotherhood among all the
people of India, transcending religious, linguistic and regional or sectional diversities." However,
the amendment reflected a new emphasis in governing circles on order and discipline to
counteract what some leaders had come to perceive as the excessively freewheeling style of
Indian democracy. After the March 1977 general election ended the control of the Congress
(Congress (R) from 1969) over the executive and legislature for the first time since independence
in 1947, the new Janata - dominated Parliament passed the 43rd Amendment (1977) and 44th
Amendment (1978). These amendments revoked the 42nd Amendment's provision that Directive
Principles take precedence over Fundamental Rights and also curbed Parliament's power to
legislate against "antinational activities."

The important question is where there is a conflict between the fundamental rights and directive
principles, which should prevail? The Fundamental Rights are the rights of the individual
citizens guaranteed by the Constitution. The directive principles lay down various tenets of a
welfare state. The conflict arises when the State needs to implement a directive principle and it
infringes/ abridges the fundamental rights of the citizens. The chapters on the fundamental rights
& DPSP were added in order of part III and part IV of the constitution. The Fundamental rights
are justifiable and guaranteed by the constitution. The Directive principles were directives to the
state and government machinery. But they are not enforceable, by the law.

PURPOSE OF INSERTION OF PART III AND PART IV:

The framers of the Indian constitution were aware that there were other constitutions which had
given expression to certain ideals as the goal towards which the country should strive and which
had defined the principles considered fundamental to the governance of the country. They were
aware of the event that had culminated in the charter of United Nations. Universal declaration of
Human rights had been adopted by the General Assembly of the United Nations, for India was a
signatory to it. It contained a basic and fundamental rights appertaining to all men. These rights
were born of the philosophical speculation of the Greek and Roman stoics and nurture by the
jurists of ancient Rome. These rights had found expression in a limited form in the accords of
1188 entered into between King Alfonso IX and the Cortes of Leon, the Magna Carta of 1215
and the guarantees which King Andrew II of Hungary was forced to give by his Golden bull of
1822. The French National Assembly also included the “Declaration of the Rights of Man and of
the Citizen”. The first ten amendments to the constitution of the United States of America
contained certain rights akin to Human rights. Constitution of Eire, Japan also contained similar
rights and Directive principles. Section 8 of the article 1 of the U.S constitution contained a
Welfare clause empowering the federal Government to enact laws for the overall general welfare
of the people. U.S.A, the U.K and Germany had passed social welfare legislation. The framers of
the Indian constitution, therefore, headed the constitution of India with a preamble which
declared India’s goal and inserted parts III and IV in the constitution.
TUSSLE BETWEEN THE LEGISLATURE AND JUDICIARY

The question of relationship between the Directive Principles and the Fundamental rights has
caused some difficulty, and the judicial attitude has undergone transformation on this question
over time. Initially, the courts adopted a strict and literal legal position in this respect. The
Supreme Court adopting the literal interpretative approach to Art. 37 ruled that a Directive
Principle could not override a Fundamental right, and that in case of conflict between the two,
the Fundamental right would prevail over the Directive Principle. Champakam Dorairajan case,
1951 The Supreme Court in State of Madras v. Champakam Dorairajan, stated:

1. The Directive Principles should conform, and run as subsidiary, to the Fundamental rights.

2. The Directive Principles of the state policy, which by Art. 37 are expressly made
unenforceable by a court cannot override the provisions found in part III which, notwithstanding
other provisions, are expressly made enforceable by appropriate writs, orders or directions under
article 32.

3. The chapter on fundamental 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 III.

4. The Directive Principles of state policy have to conform to and run as subsidiary to the chapter
on Fundamental rights.”

ROLE OF JUDICIARY:

In the early fifties when Parliament was keen to push the Directive Principles through radical
socio-economic reforms, the judiciary put speed-breakers in the way. In the late seventies and
early eighties when the court was in a mood to give a fill-up to the Directive Principles, the
legislators, in order to have political advantage, gave complete importance to the Directive
Principles through forty second amendment. Once again the court was compelled to apply speed
breakers in the way so as to maintain harmony between Fundamental Rights and Directive
Principles which are the bed rock of the Constitution.
Thus the relation between Fundamental Rights and Directive Principles changed from time to
time in the light of judicial interpretation which can be categorised in the following ways:

1) Fundamental Rights are superior to Directive Principles

2) The nature and scope of Fundamental Rights can be determined by Directive Principles as
reasonable restrictions.

3) Directive Principles are superior to Fundamental Rights.

4) Principles of Harmonious construction.

DOCTRINE OF HARMONIOUS CONSTRUCTION:

The Supreme Court started giving a good deal of value to the Directive principles from a legal
point of view and started arguing for harmonizing the two the Fundamental rights and Directive
Principles. “Where two judicial choices are available, the construction in conformity with the
social philosophy” of the Directive Principles has preference. The courts therefore could
interpret a statute so as to implement Directive Principles instead of reducing them to mere
theoretical ideas. This is on the assumptions that the law makers are not completely unmindful or
obvious of the Directive Principles. Further the courts also adopted the view that in determining
the scope and ambit of Fundamental rights, the Directive Principles should not be completely
ignored and that the courts should adopt the principles of harmonious construction and attempt to
give effect to both as far as possible.

In Kerela Education Bill, 1958, SC observed:

1. while affirming the primacy of fundamental rights over the directive principles, qualified the
same by pleading for a harmonious interpretation of the two.

2. that “nevertheless, in determining the scope and ambit of the Fundamental rights relied upon
by or on behalf of any person or body, the court may not entirely ignore these Directive
Principles of state policy laid down in part IV of the constitution but should adopt the principle
of harmonious construction and should attempt to give effect to both as much as possible.”
Without, therefore, making the directive principles justifiable as such, the courts began to
implement the values underlying these principles to the extent possible. The Supreme Court
began to assert that there is “no conflict on the whole” between the fundamental rights and the
directive principles. ‘They are complementary and supplementary to each other.” Golak Nath v.
State of Punjab, 1967 The Supreme Court there emphasized that the fundamental rights and
directive principles formed an “integrated scheme” which was elastic enough to respond to the
changing needs of the society.

Kesavanand Bharti v State of Kerala, 1973 SC observed:

1.the fundamental rights and directive principles constitute the “conscience of the constitution”
there is no antithesis between the fundamental rights and directive principles and one
supplements the other.”

2.both parts III (fundamental rights) and IV (directive principle) have to be balanced and a
harmonized. State of Kerala v. N.M Thomas, 1976 The Supreme Court said that the Directive
Principles and Fundamental rights should be construed in harmony with each other and every
attempt should be made by the court to resolve any apparent in consistency between them.

Minerva Mills v UOI, 1980 SC observed that the fundamental rights “are not an end in
themselves but are the means to an end.” The end is specified in the directive principles.

2. Fundamental rights and directive principles together “constitute the core of commitment to
social revolution and they, together, are the conscience of the constitution.” The Indian
constitution is founded on the bedrock of “balance” between the two.

3.To give absolute primacy to one over the other is to disturb the harmony of the constitution.
This harmony and balance between fundamental rights and directive principles is an essential
feature of the basic structure of the constitution.”

4. the goals set out in directive principles are to be achieved without abrogating the fundamental
rights.

5.It is in this sense that fundamental rights and directive principles “together constitute the core
of our constitution and combine to form its conscience. Anything that destroys the balance
between the two parts will ipso facto destroy an essential element of the basic structure of our
constitution.”
FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY:
CONFLICTING OR COMPLIMENTARY

Without, therefore, making the directive principles justifiable as such, the courts began to
implement the values underlying these principles to the extent possible. The Supreme Court
began to assert that there is “no conflict on the whole” between the fundamental rights and the
directive principles. ‘They are complementary and supplementary to each other.” Since then, the
judicial attitude has become more positive and affirmative towards directive principles, and both
fundamental rights and directive principles have come to be regarded as co-equal. There is in
effect a judicial tendency to interpret Fundamental rights in the light of, and so as to promote, the
values underlying Directive Principles. This aspect of the directive principles was stressed upon
by the Supreme Court in Golak Nath. The Supreme Court there emphasized that the fundamental
rights and directive principles formed an “integrated scheme” which was elastic enough to
respond to the changing needs of the society. In Kesavanand Bharti v. State of Kerala, HEGDE
and MUKHERJI, JJ3 ., observed: “the fundamental rights and directive principles constitute the
“conscience of the constitution” there is no antithesis between the fundamental rights and
directive principles and one supplements the other.” SHELAT and GROVER, JJ., observed in
their judgment: “both parts III (fundamental rights) and IV (directive principle) have to be
balanced and a harmonized then alone the dignity of the individual can be achieved they were
meant to supplement each other.”

The Supreme Court said in State of Kerala v. N.M Thomas , that the Directive Principles and
Fundamental rights should be construed in harmony with each other and every attempt should be
made by the court to resolve any apparent in consistency between them.

ROLE OF JUDICIARY:

In the early fifties when Parliament was keen to push the Directive Principles through radical
socio-economic reforms, the judiciary put speed-breakers in the way. In the late seventies and
early eighties when the court was in a mood to give a fill-up to the Directive Principles, the
legislators, in order to have political advantage, gave complete importance to the Directive
Principles through forty second amendment. Once again the court was compelled to apply speed
breakers in the way so as to maintain harmony between Fundamental Rights and Directive
Principles which are the bed rock of the Constitution.

Thus the relation between Fundamental Rights and Directive Principles changed from time to
time in the light of judicial interpretation which can be categorised in the following ways:

1) Fundamental Rights are superior to Directive Principles

2) The nature and scope of Fundamental Rights can be determined by Directive Principles as
reasonable restrictions.

3) Directive Principles are superior to Fundamental Rights.

4) Principles of Harmonious construction.

CONCLUSION:

From the above discussion, it will be seen that the development of law regarding the conflict and
irreconcilability between fundamental rights and the directive principles, has passed through four
distinct stages. At the beginning, a strict literal interpretation was advocated and the
Fundamental Rights were would prevail over the Directive Principles. Later in course of time, a
perceptible, and a welcome change came over the judicial attitude, and the courts though
subordinated the Directives to the Fundamental Rights, took the view that the mechanism of
harmonious construction should be used to interpret the two Parts. The next stage came with the
case of Sajjan Singh, and Golak Nath, where the judiciary began expanding the Directive
Principles and interpreted the two Parts as being co-equal, and without any conflict.
Kesavananda Bharati, was a turning point in the history of Directive Principles Jurisprudence,
where for the first time the court held that the Directive principles should be given primacy over
the Fundamental Rights. This was the third stage. However, in Minerva Mills the judiciary again
went back to stating that there should be balance and harmony between Part III and Part IV, and
that none should be given a primacy over the other. Since then this has been the view taken by
the courts in the subsequent cases.

The recent trend in this regard, is that though the Directive Principles are unenforceable, and a
State cannot be compelled to undertake a legislation to implement a Directive, the Supreme
Court has been issuing directions to the State to implement the Principles. Hence various aspects
of Part IV are being enforced by the courts indirectly. Today thus, the Directive Principles no
longer remain merely a moral obligation of the Government.