CHAPTER - IX

Fundamental Rights Qualified

> Preamble, The Key to Open the Mind of the Makers.

> Doctrinaire and Pragmatic Approach of Socialism.

> Democratic Socialism.

> Relationship Between Directive Principle and Fundamental Rights.

> Part - III and IV, The Conscience of Constitution and the Vehicle of
Social Revolution.

> Directive Principles As Reasonable Restrictions.

> Directive Principles Elevated.

> Art. 31B and 31C and Immunisation Certain Laws.

> Schedule IX Anathema to the Constitution.

> Fundamental Rights in Emergency.

 CHAPTER - IX

FUNDAMENTAL RIGHTS QUALIFIED; -

Preamble (Justice, Liberty, Equality, Dignity) and Fundamental Rights.

1:1 Any discussion on fundamental rights under Indian Constitution is

not complete without reference to the Preamble, which sets out different
objects and necessary background to understand the nature and function
of the Constitution. Preamble provides a guide to the state and its organs,
which shall function in commensuration with the preamble to realize the
goals and ideal, so set out. It points to the socio-politico-legal nature of the
Constitution. It can be designated as the miniature reflection of the
Constitution. It embodies the philosophy and fundamental value upon
which the Constitution is founded. It visualizes certain ideals to be
realized in course of time setting the task before the State and declaring
by delineating an area to function and by declaring the nature of the State
and the Constitution.

If we throw light on the history of the preamble, we would find

that, although it appears at the very beginning of the Constitution but it
was passed and adopted at last and only after draft articles of the
constitution were adopted. So it is significant to note that the preamble
was drafted and adopted after much mature deliberation and carefully
chosen words to give effect to the entire thought and content of the
Constitution. Again if, with the assumption that preamble provides the
guidance to the political development of the nation, keeping in view the
aspiration of the people, move deep into the history, we would find its
lineage in the freedom struggle and then in the objective resolution of the
constitution assembly.

The freedom movement of India was not free from any object or
idea, rather it was very clear as to establish a free sovereign India with
Constitution of its own based on democratic tradition to establish just
social and economic order free from exploitation of any kind, to remove
poverty and ignorance and to ameliorate the common man in general.
They (freedom fighters) were clear in their sight to attain political
freedom and to bring about a social revolution ending poverty, ignorance,
exploitation and build a society based on justice and equity. After
attaining independence the foremost task before the Constituent
Assembly, while Preparing a Constitution for India, was to formulate the
objectives and the guiding principles those were to from the basis of the
Constitution reflecting democratic spirit, and such objectives were
formulated in the from the objective resolution which were later
accommodated in spirit in the Preamble with minor modification. The
objective resolution (the relevant ones) as moved in the Assembly read as:

"(5) Wherein shall be guaranteed and secured to all the people of

India justice, social, economic and political; equality of status, of
opportunity, and before the law; freedom of thought, expression, belief
 317

faith, worship, vocation, association and action, subject to law and public
morality; and

(6) wherein adequate safeguards shall be provided for minorities,

backward and tribal areas, and depressed other backward classes; and

After a number of meeting the drafting committee felt the

Preamble should be restricted to defining the essential features of the new
state and its basic socio-political objectives..........," 12 and finally
formulated the
Preamble as:

"We the people of India, having solemnly resolved to constitute

India into a Sovereign Democratic Republic and to secure to all its
citizens:
justice, social, economic and political;
Liberty of thought, expression, belief, faith and workshop;
Equality of status and of opportunity and to promote among all;
Fraternity assuring the dignity of the individual and the unity of the
Nation...
The word Secular', 'Socialist' and 'Integrity were added by 42nd
Amendment in 1976.

The deliberation on the historical aspect of the Preamble reveals

that establishment of sovereign democratic, republic was the sole object
of the founding father so as to realize the goal of just social and economic
order based on justice, equality and freedom. The preamble reflects the
entire Constitution and its spirit in a miniature form. It is perfect in tune
with the Constitution mirroring its contents, ideal and aspiration. The
intent and purposes contained in the Preamble, in the light of its history,
are of immense significance, but it received a raw deal at the hand of
judiciary in re. Berubari Union and Exchange of Enclaves3 In this case the
court observed:

"There is no doubt that the declaration made by the people of India

in exercise of their sovereign will in the Preamble to the constitution is, in
the words of Story, 'a key to open the mind of the makers' which may
show the general purpose for which they made the several provisions in
the Constitution; but nevertheless the Preamble is not a part of the
Constitution, and as Willoughby has observed about the Preamble to the
American Constitution,' It has never been regarded as the source of any
substantive power conferred on the Government of the United States of
any if its departments. Such powers embrace only those expressly granted
in the body of the Constitution and such as may be implied from those so
granted.'

1. Shiva Rao, B: The framing of Indian Constitution A Study p,122

2. Ibid, at p.128
3. AIR 1960 SC 845
 318

Further the Court observed; "What is true about the powers is

equally true about the prohibitions and limitations"

As to the observation that the preamble is not a part of

Constitution the Supreme Court grossly overlooked and neglected the
history of the Preamble, Which clearly establish that the Constituent
Assembly accepted the Preamble as a part of the Constitution and as to
the other observation that Preamble has never been regarded as the
source of any substantive power, it did not take full notice of the
discussion by the said authorities, because Story in his Commentaries on
the Constitution of the United States state :

"There does not seem any reason why in fundamental law on

Constitution should not be given to the intention of the framers, as stated
in the Preamble. And accordingly we find that it has been constantly
referred to by statesmen and jurists to aid them in the exposition of its
provisions." (P444)
(Quoted by Sikri C.J. in Fundamental Right case)

Further Story states at pages 447-448:

"And the uniform doctrine of the highest judicial authority has

accordingly been, that it was the act of the people and not of the states;
and that it bound the latter as subordinate to the people. " Let us turn,"
said Mr. Chief Justice Jay, " to the Constitution. The people therein
declare, that their design in establishing it comprehended six objects: (1)
To form a more perfect union; (2) To establish justice, (3) To insure
domestic tranquility, (4) To provide for the common defence; (5) To
promote the general welfare; (6) To secure the blessings of liberty to
themselves and their posterity. " It would" he added, " be pleasing and
useful to consider and trace the relations, which each of these objects bear
to the others; and so show that collectively they comprise everything
requisite with the blessing of Divine providence, to render a people
prosperous and happy." In Hunter Vrs. Martin. (Wheat, R 305, 324), the
Supreme Court say, (as we have seen) the Constitution of the United
States was ordained and established, not by the states in their sovereign
capacity, but emphatically as the Preamble of the Constitution declares,
by the people of the United States," and language still more expressive
will be found used on other solemn occasion." (Quoted by Sikri C.J. in
Fundamental Rights case)

The preamble has been of much help in construing the

Constitutional provisions. In Behram Khushed Pesikaka Vrs. The state of
Bombay 1, which was relied upon by Sikri C.J. in Kesavananda Bharati
case, Mahajan C.J. referring to part III of the constitution observed:

1. AIR 1955 SC 1Z3

 319

"We think that the rights deserved as fundamental rights are a

necessary consequence of the declaration in the preamble that the people
of India have solemnly resolved to constitute India into a sovereign
democratic republic and to secure to all its citizens justice, social economic
are political; liberty of thought, expression, belief, faith and worship;
equality of status and of opportunity. These fundamental rights have
been put in the Constitution merely for individual benefit, though
ultimately they came into operation in considering individual rights. They
have been put there as a matter of public policy and the doctrine of
waiver can have no application to provisions of law which have been
enacted as a matter of constitutional policy."

Similarly, the Supreme Court in re Kerala Education bill, 1957 1

observed:"To implement and Fortify these supreme purpose set forth in
the preamble, part - III of our constitution has provided for us certain
fundamental rights".

Relaying upon the above discussed authorities and decisions and

holding the Berubari decision wrong, Sikri C.J. in Kesavananda Bharati's
case observed

"It (Preamble) was expressly voted to be a part of the

Constitution".

Further he held: "It seems to me that the Preamble of our

Constitution is of extreme importance and the Constitution should be
read and interpreted in the light of the grand and noble vision expressed
in the preamble". 2

As to the importance of preamble Shelat and Grover J.J. in

Kesavananda Bharati's case observed.

"The constitutional makers gave to the Preamble the pride of

places. It embodied in a solemn form all the ideals and aspirations for
which the country had struggled during the British regime and a
Constitution was sought to be enacted in accordance with the genius of
the Indian people. It certainly represented an amalgam of schemes and
ideas adopted from the Constitutions of other countries. But the constant
strain, which runs though out each and every article of the Constitution is
reflected in the Preamble which could and can be made sacrosanct. It is
not without significance that the Preamble was passed only after draft
articles of the Constitution had been adopted with such modifications as

1. AIR 1958 SC 956

2. AIR 1973 SC 1461.,, P,1506
 320

were approved by the Constitution Assembly. The Preamble was,

therefore, meant to embody in a very few and well defined words the key
to the understanding of the constitution." 1

Further they held: "To our mind, it hardly makes any substantial
difference whether the Preamble is a part of the Constitution, or not. The
Preamble serves important purposes. Firstly, it indicates the source from
which the Constitution comes viz., the people of India. Next it contains
the enacting clause which brings into force the Constitution In the third
place, it declares the great rights and freedoms, which the people of India
intended to secure to all citizens and the basic type of Government and
polity which was to be established. From all these, if any provision in the
constitution had to be interpreted and if the expressions used therein
were ambiguous the Preamble would certainly furnish valuable guidance
in the matter...." 2

Mathew J. in Kesavananda Vrs. State of Kerala observed:

"The Preamble to our constitution shows that it was to secure these

rights that the Constitution was established, and that, by and large, the
Fundamental Rights are a recognition of the "pre - existing natural
rights".

Further, he states: "As the Preamble indicates, it was to secure the

basic human rights like liberty and equality that the people gave unto
themselves that the people gave unto themselves, the Constitution and
these basic rights are an essential feature of the Constitution; the
Constitution was also enacted by the People to secure justice, political,
social and economic".3

In Keshavananda Bharati Case, 7 out of 3 judges held that the

objectives specifies in the Preamble contain the basic nature of our
Constitution which cannot be amended in exercise of the power of
amendment under Article 368.

Prior to Kesavananda case the Supreme Court had already started

realizing the significance of the Preamble although with a belief that
Preamble was not a part of the Constitution. In Sajjan Singh Vrs. State of
Rajasthan 4, Hidayatullah J. Observed:

1. Ibid, at p.1577
2. Ibid, at P1580
3. Ibid, at P1952
4. AIR 1965 SC 845
 321

"The Preamble of the Constitution is equally vital to our body

politic. It does not make any grant of power but it gives a direction and
purpose to the Constitution which is reflected in part - III and IV." 1

The above discussion and the changed attitude of the judiciary

established that the Preamble is of utmost importance in the Indian
constitutional set up, representing the wishes and aspiration of sovereign
people of Indian and mirroring the conceptual framework of the
Constitution. It serves as the compass to navigate the Constitutional ocean
to reach the national destination of just social and economic order based
on egalitarianism and of creating a free and dignified citizenry based on
libertarianism. Preamble espouses certain national values upon which to
build a free and vibrant nation, democratic, socialistic secular in nature.

Such values are Justice Liberty, Equality, Dignity and all these value are
broad concepts attached to fundamental rights of man. Those are words
of power and passion, which have inspired great revolution in the past.

10:2 Justice:

The preamble declares in clear and unambiguous term to secure to

its citizens justice, social, economic and political. So the Preamble specifies
justice of three kinds, which is inspired by the peculiar socio-political
history of pre-independent India. Preamble does not talk of Justice in
general and abstract sense, because its sole aim was to attain certain ends,
because it was a Society/State subjugated politically with no political
rights conferred upon the people, exploited economically with the
enjoyment of economic privilege by a handful and selected few and
divided socially along caste, race, religion etc, line with a large section of
the population suffering disabilities of many sorts. So the foremost
concern of the framer of the Constitution was to set the goal in the
Preamble to ensure social, economic and political justice. By this it did not
confer any right on any body but sought to create a social order wherein
social, economic and political justice would be prevailing where the
enjoyment of fundamental right in more secured without any invasion
and infraction.

The Constitution seeks to attain this by making a broad range of

express provisions as directive principles in Arts 38 and 39 which though
not justiciable but are fundamental in the governance of the country by
obligating the state to strive in that direction.
Art - 38 - State to secure a social order for the promotion at welfare of the
people -

1. Ibid, at P 861
 322

(1) The State shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in
which justice, social, economic and political shall inform all the
institution of the national life.

(2) The tate shall, in particular, strive to minimize the inequalities in

income, and endeavour to eliminate inequalities in status, facilities
and opportunity but also amongst groups of people residing in
different areas or engaged in different vocations.

The general provisions as enumerated in Art.38 were made more

specific and categoric in which read as:

Art 39. Certain principles of policy to be followed by the State

The State shall, in particular, direct its policy towards securing -
(a) that the citizens, men and women equally, have the right
to an adequate means to livelihood;
a) that the ownership and control of the materials resources
of the community are so distributed as best to subserve
the common good;
b) that the operation of the economic system does not result
in the concentration of wealth and means of production
to the common detriment;
c) that there is equal pay for equal were both men and
women
d) that the health and strength of workers men and women
and the tender age of children are not abused and that
citizen are not forced by economic necessity to enter
avocation unsuited to their age or strength
e) that children are given opportunities and facilities to
develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are
protected against exploitation and against moral and
material
By these the Constitution lays down the foundation for welfare
state obligating the State to bring about social and economic
transformation in the lives of people.

Liberty, Equality, Fraternity & Dignity of the Individual:

The second objective declared by the Preamble is liberty. It is again

not liberty in general and abstract sense, but it is liberty of thought,
expression, belief, faith and worship. This spells out the path towards the
moral psychological freedom of man as the Preamble envisages civil and
religious liberty of man for the fuller moral growth of man. So far we
have discussed liberty as set out in the Preamble in the chapter dealing
with Arts. 19 and 25.
 323

Equality:

Equality as a goal set out in that Preamble is equality of status and

opportunity. Indian society was horizontally divided, It was a society of
unequals. The founding fathers thereafter thought to ameliorate the
conditions of the downtrodden, the underprivileged segments of the
society and recognize the naturally ordained equality of human beings.
The founding fathers scribed twin formulae: development to do away the
inequalities of status and to provide equal opportunities for so as to attain
a social order based on equality of citizenship and an equalitarian State.
In order to attain such goal the Constitution has recognized the
fundamental right to equality of man, which have been discussed in the
chapter dealing with equality clauses.

Dignity:

Liberty, euality and fraternity have to be secured and protected

with social justice, economic empowerment and political equality under
the rule of law. (S. S. Bola Vrs. B. D. Sardana L

The word Fraternity is not a mere rhetoric, but is an instrument for

assuring (a) the dignity of the individual and (b) unity and integrity of the
nation. This concept of Fraternity obviously enjoins "all this could be
possible only if the people of India as a whole were bound together by
spirit of brotherhood". (Indra Sawhney Vrs. Union of India, 12 The word
Fraternity has a two fold application - with reference to (a) the backward
classes and (b) the religious minorities. Jurist D. D. Basu in shorter
Constitution of India 13th edition at page - 10 quotes the observation of
Supreme Court in the said case that, "in a country like ours with so many
disruptive forces of regionalism, communalism and lingualism... the
unity and integrity of India can be preserved only by a spirit of
brotherhood. India has one common citizenship and every citizen should
feel that he is Indian first irrespective of other basis". Justice, Equality,
Liberty, Fraternity and Dignity as envisioned in the Preamble go hand-
in-hand in their spirit and extent. Fundamental Rights and Directive
Principles go a full length for ensuring dignity of the individual.

1:3
So the Preamble set out dreams to be realized, in a State, which
would be an independent, Sovereign, Socialist, Democratic, Secular,
Republic. (The words 'Socialist' and 'Secular' were added to this
Preamble by 42nd Amendment Act, 1976). The Preamble espouses two sets
of goal, one to realise social and collective good and the other is the

1.(199718 SCC 522

2. AIR 1993 SC 477 Para - 3
 324

growth and development of individual by conferring rights and dignity

upon him, which may appear to be opposite to each other. With
attainment of independence, the prime task before the nation was to end
poverty, ignorance, inequality and other exploitative situations, for which
the State was given the responsibility to bring about a social order based
on justice, social, economic and political, which were spelt out in the part
IV of the Constitution as Directive Principles which serve as a socio­
economic charter of the Nation in contradistinction to Fundamental
Rights of man which serves as a bill of rights. But it was realised that the
desired goal of socio-economic reformation and justice could not be
realized due to excessive reliance on the fundamental rights. So the
legislature (with limited constituent power) the brought about the 42nd
amendment amending the Preamble and added the word Socialist inter
alia to it to pursue the goal of social and economic justice in more
pronounced way. The addition of the word Socialist was not to introduce
a new ideology to the Constitution, because the very concept was already
inherent with the constitution. The concept was already in practice
though not in the strict doctrinaire way. The concept of socialism is not
new to the constitution because it is rooted to the Indian soil since the
days of freedom struggle but in a variant form. This concept (Socialist) to
Indian society (distinctly different from any community ideology) means
to end poverty, exploitation, ignorance and not to promote absolute state
monopoly. And it is to be established by democratic means not by
revolutionary ways. By the introduction of the word Socialist, the
Legislature sought to democratic socialism, which harmonises the
individual interests and public or social interests. By this introduction the
idea of democratic socialism was made express which was implicit in the
Constitution.

It is pertinent to note here that pt. Nehru, the patriot, statesman,

the 1st Prime Minister of India favoured socialism with its Indian
interpretation, which recognizes and identifies itself with private
enterprises, development of individual personality and the maintenance
of human dignity, (ref. Socialism Capitalism, Monopoly Capital,by
Jawaharlal Nehru, Nehru's Economic Philosophy by V.K.R.V. Rao
Mainstream vol - XLVI No.48 (Nov.15.2008)

With this it became more pronounced that the State of India is a

socialist democratic republic. The Preamble mandates the State pursue
the path of social democracy. The expression social democracy has been
defined by International encyclopedia of social sciences vol -1.4. p.113 as:

"The democratization of the society itself as expressed by its

manners and customs, and particularly by the belief in what Bryce called
"equality of estimation that is, equal treatment and equal respect for ■
 325

every man. It should not be confused with "socialist democracy" which is

a policy enforced by the State upon the society." 1 (quoted)

The concept of socialism under Indian constitution came for

discussion and accepted in practice even before the 42nd Amendment in
Akadasi padhan Vrs. state of Orissa 2 wherein validity of a state law
creating State monopoly under Article 19 (6) was challenged. In this case
the court disapproved of construing important constitutional provisional
in a literal way and observed per Gajendragadkar J.:

"....... the task of construing important constitutional provisions

like Art. 19(6) cannot always be accomplished by treating the said
problem as a mere exercise of grammar. In interpreting such a provision,
it is essential to bear in mind the political or economic philosophy
underlying the provision in question, and that would necessarily involve
the adoption of a liberal and not a literal and mechanical approach to the
problem. With the rise of the philosophy of socialism the doctrine of State
ownership has been often discussed by political and economic thinkers.
Broadly speaking, this discussion discloses a difference in approach. To
the Socialist, nationalisation or state ownership is a matter of principle
and its justification is the general notion of social welfare. To the
rationalist, nationalisation or state ownership is a matter of expediency
dominated by considerations of economic efficiency and increased output
of production. This latter view supported nationalisation only when it
appeared clear that State ownership would be more efficient, more
economical and more productive. The former approach was not very
much influenced by these consideration, and treated it as a matter of
principle that all important and nation - building industries should come
under State control. The first approach is doctrinaire, while the second is

pragmatic. The first proceeds on the general ground that all national
wealth and means of producing it should come under national control
whilst the second supports nationalisation only on grounds of efficiency
and increased out put."

Further Gajendragadkar J. : observed " The amendment made by

the legistature in Art. 19 (6) shows that according to the Legislature a law
relating to the creation of State monopoly should be presumed to be in the
interests of the general public. Art. 19(6) (ii) clearly shows that there is no
limit placed in the power of the State in respect of the creation of State
monopoly... In other words the theory underlying amendment in so far
as it relates to the concept of State monopoly, does not appear to be based
on the pragmatic approach, but on the doctrinaire approach which
socialism accepts...."

l.Swarup, Jagadish Constitution of India (vol 1) 2nd edn p.58

2. AIR 1963 SC 1047 (1053,1054)
 326

Art. 19 (6) (ii) came into being by the constitution (1st) amendment
1951 which empowers the State to create monopoly in its favour, which
came in for discussion in the above case as paving the direct way for
socialism. So the concept of socialism has been expressly in practice since
1st amendment, though it was implicit in Constitution by the Directive
Principles of State Policy.

The concept of socialism as developed as a State ideology in the

Akadasi Padhan's case and observation made by Gajendragadkar J. in
this regard was reinforced by the Supreme Court in successive cases. In
Excel Wear Vrs. Union of India1 the court observed :

"The difference pointed out between the doctrinaire approach to

the problem of socialism and the pragmatic one is very apt and may
enable the courts to lean more and more in favour of nationalisation and
State ownership of an industry after the addition of the word 'Socialist' in
the preamble of the constitution. But so long as the private ownership at
an industry is recognized and governs an overwhelmingly large
proportion of our economic structure, is it possible to say that principles
of socialism and social justice can be pushed to such an extreme so as to
ignore completely or to a very large extent the interests of another section
of the public namely the private owners of the undertakings? Most of the
industries are owned by limited companies in which a number of share­
holders both big and small, holds the shares. There are creditors and
depositors and various other persons connected with or having dealings
with the undertaking! Does socialism go to the extent of not looking to the
interests of all such persons? The Government or the Government
company is the owner. If they are compelled to close down, they,
probably, may protect the labour by several other methods at their
command, even, sometimes as the cost of the public exchequer. It may not
be always advisable to do so but that is a different question. But in private
sector obviously the two matters involved in running it are not on the
same footing. One part is the management of the business done by the
owners or their representatives and the other is running the business for
return to the owner not only for the purpose of meeting his livelihood or
expenses but also for the purpose of the growth of the national economy
by formation of more and more capital. Does it stand to reason that such
rigorous provisions like those contained in the impugned sections all
these interests should be completely or substantially ignored? The
question posed are suggestive of the ansewer?

Referring to the preamble and the introduction of the word

'Socialist' to it and explaining the meaning of socialism the Supreme
Court in D. S. Nakara Vrs. Union of India 2 observed :

1. AIR 1979 SC 25(36)

2. AIR 1983 SC 130 (139)
 327

"..... The principal aim of a Socialist State is to eliminate inequality

in income and status and standards of life to the working people and
especially provide security from cradle to grave. This amongst others on
economic side envisaged economic equality and equitable distribution of
income. This is a blend of Marxism and Gandhism, leaning heavily
towards Gandhian socialism...."

In Valsamma Paul Vrs. Coachin University 1 the Supreme Court

quoted Dr. Amabedkar in his closing speech on the draft constitution as, "
What we must do is not to be attained with mere political democracy; we
must make our political democracy a social democracy as well. Political
democracy cannot last unless there lies on the basis of it a social
democracy." And the court observed:

"Social democracy means 'a way of life which recognizes liberty,

equality and fraternity as principles of life'. They are not separate items in
a trinity, but they form union of trinity. To diverse one from the other is to
defeat the very purpose of democracy. Without equality, liberty would
produce the supremacy of the few over the many. Equality without
liberty would kill individual initiative. Without fraternity, Liberty and
equality could not become a natural course of things. Articles 15(4) and
16(4) therefore, intend to remove social and economic inequality. Social
and economic justice is a right enshrined for the protection of society. The
right to social and economic justice envisaged in the Preamble and
elongated in the Fundamental Rights and Directive Principles of the
Constitution, in particular, Articles 14, 15, 16, 21, 38, 39, 46 of the
Constitution are to make the quality of the life of the poor,
disadvantageous and disabled citizen of the society, meaningful.........."

In Samatha Vrs. State of Andhra Pradesh 2 the court observed:

"Social and economic democracy is the foundation on which

political democracy would be a way of life in the Indian polity. Law as a
social engineering is to create just social order removing inequalities in
social and economic life, socio-economic disabilities with which poor

people are languishing, by providing positive opportunities and facilities

to individuals and groups of people".

Further the court held: "The core constitutional objective of 'Social

and economic democracy' in other words, just social order, cannot be
established without removing the inequalities in status through the rule
of law. The manadate social and economic retransformation requires that

1. AIR 1996 SC 1011 (1014)

2. AIR 1997 SC 3297 (3329)
 328

the material resources or their ownership and control should be so

distributed as to subserve the common good. A new social order, thereby,
would emerge out of the old unequal or hierarchical social order. The
legislative or executive measures therefore should be necessary for the
reconstruction of unequal social order by corrective and distributive
justice through the rule of law,"

In Secretary, Haryana State Electricity Board Vrs. Suresh 1, The

Court referring to Nakara's Case (AIR 1983 SC 130) observed;

"........ democratic socialism aims to end poverty, ignorance,

disease and inequality of opportunity. The primary impact of socialism as
a matter of fact is to offer and provide security of life so that the citizens
of the country may have two square meals a day, and maintenance of a
minimum standard of life, it is expected, would lead to be abridgement of
the gap between the haves and have-nots. The feudal exploitation and
draconian concept of law ought not to outweigh the basic structure of the
Constitution, or its socialistic status."

Further the court held: "Socialism ought not to be treated as a mere

concept or an ideal, but the same ought to be practised in every sphere of
life and be treated by the law courts as a constitutional mandate since the
law courts exists for the society and required to act as a guardian angel of
the society. As a matter of fact the socialistic concept of society is very
well laid in part-III and part-IV of the Constitution and the Constitution
being supreme, it is bouden duty of the law courts to give shape and offer
reality to such a concept.

In G. B. Pant University of Agriculture and Technology Vrs. State

of U-P. 2 endorsing many decisions like D.S.Nakara's case, Secy. H.S.E.B.
Vrs. Suresh and others the Supreme Court observed:

"There cannot possibly any doubt that socialistic concept of the

society as laid down in part-III and IV of the Constitution ought to be
implemented in the true spirit of the Constitution..........democratic
socialism aims to end poverty, ignorance, disease and inequality of
opportunity".

Now it is settled that the concept of socialism better known as

democratic socialism is deeply imbedded to our Constitution, which
covers not only equality of opportunity (social as well as economic) but

1. AIR 1999 SC 1160 (1161)

2. AIR 2000 SC 2695(2696)
 329

also liberty and fraternity as well. It brings within its fold part-III and
Part-IV of the Constitution by making a fusion between individual claim
and social good.

2:1 Directive Principles and Fundamental Rights-

Directive Principles of State Policy as enshrined in part-IV of the

Constitution are certain precepts, which inspire and guide the state action
to achieve collective goods and welfare formulating certain socio­
economic objectives to build an egalitarian State. They do not confer any
rights, neither can they be invoke as a matter of rights. But it will be too
much simplistic to say that they are simply unenforceable. They enable
the state to act in a matters of welfare measures, they lay down the
foundation of a Welfare State. As regard their relationship with the
fundamental rights, there appears to be divergence between the two,
They appear to be diametrically opposite to each other, as fundamental
rights belongs to individual and restrain the state from acting, whereas
directive principles mandates public good and welfare obligating and
enabling the State to act. But in reality that is not true, because if we turn
to their history, it would appear they are conjoined twin born of human
and socital need, became divorced later out of the sheer misconception as
to the idea that the interest of the individual clashes with that of the
interest of the society.

It is a historically realized fact that the guarantee of individual

liberties without attaining social and economic justice is a fruitless
Constitutional exercise. The Directive Principles of State policy, which is
viewed as a social, economic and cultural character, aims at the
egalitarian, communitarian and socialistic goal fostering the growth of the
Community / Society in general, which prepares the necessary ground for
the enjoyment of freedom by the individual for the growth of its multiple
potential.

"The formulation of social and economic objectives in national

Constitutions owes its origin essentially to the realization that the content
of political freedom impaired by the absence of social justice, and that
without adequate protection for social and economic rights, constitutional
guarantees of what are known as " Classical individual liberties" such as
the right to equality, liberty of person and freedom of speech and
association may lose much of their significance. This .close association
between political freedom and social justice has become a common
concept since the French Revolution. Since the end of the first world war
it has become increasingly recognized that peace in the world can be
established only if it is based on social justice". (Preamble to the
Constitution of the International Labour Organization) L This inspires
most modern Constitutions to declare such social justice oriented

1. Rao B. Shivarao The Framing of India's Constitution p.319

 330

social and economic principles emphasising the obligation of the State to

strive for such collective rights offering social security, work, education,
employment etc. As such principles require resources and time for
implementation they are put for strict legal enforcement and action, so
they are placed in the nature of a constitutional pledge that the policies of
the State will be guided by such principle and directed towards
attainment of the constitutional goal of social and economic justice.

If we delve deep into the history of the Directive Principles of State

Policy, we would find its trace in the freedom movement wherein the
leaders thought of providing the people the fullest opportunities for the
advancement in the social and economic sphere with attaining the
political freedom. "Among the fundamental rights adopted by the All
parties' conference (1928) was a provision entitling every citizen to free
elementary education and another which required the enactment of
suitable laws for maintenance of health and fitness for work of all citizens,
a living wage for every worker, the protection of motherhood, the welfare
of children and provision of assistance in old age, infirmity and
unemployment". (Nehru Report, select Documents 1,16,pp.59-60)" 1
"Similar provisions were also contained in the Declaration of
Fundamental Rights, adopted by the Indian National Congress in 1931,
which in addition, specifically declared that" in order to end exploitation
of the masses, political freedom must include real economic freedom of
the starving millions," , and that the organization of economic life must
conform to the principles of justice." (B. Pattabhi Sitaramaya, The History
of the Indian National Congress, Vol-I p.463) 2.

This establishes that the directive principles and fundamental

rights were an integrated one and there was no marked distinction
between them. It is the Sapru Committee in 1944-45, following the 1937
Constitution of Ireland, which was assigned with the responsibility of
understanding the point of views of political party and to act as a
conciliation board and to recommend a solution- of Indian's Political
problems brought to picture for the first time distinction between
fundamental rights and directive principles of State policy as justiciable
and non-justiciable respectively. B.N.Rau the constitutional Adviser
recommended to the Constituent Assembly, the classification of the said
integrated rights into two parts, one dealing with fundamental rights of
man and the other fundamental principles of state policy furthering social
good.

"There are certain rights which require positive action by the State
and which can be guaranteed only so far as such action is practicable,
while others merely require that the State shall abstain from prejudicial
action. Typical of the former is the right to work, which cannot be

1. Ibid, at p.320
2. Ibid, at p.320
 331

guaranteed further than by requiring the State, in the language of the Irish
constitution, 'to direct its policy towards securing that the citizens may,
through their occupations, find the means of making reasonable
provisions for their domestic needs'. Typical of the latter is the right,
which requires, in the language of the American Constitution, that " the
state shall not deprive any citizen of his liberty without due process of
law". It is obvious that rights of the first type are not normally either
capable, or suitable for enforcement by legal action, while those of the
second type may be so enforced".1

And finally, the proposal distinguishing justiciable rights and

rights which were mercy intended as guide and directing objectives of
state policy was approved and adopted, bringing about diversion
between the two sets of rights and thus came into being the Directive
Principles of State Policy in chapter IV of the Constitution which contains
positive commands to the State to promote social and community welfare
so as to active goal of Welfare State whereas Part-Ill contain negative
injunction.

2:2 Fundamental rights under part-III are sanctified as inviolate and

supreme vide Art.13, whereas the directive principles under Part-IV are
made fundamental in the governance of the country though are not
enforceable vide Art-37. By this, obviously there arise a situation of
conflict and contradiction when any of the directive principles, while
giving effect, curtail or limits any fundamental right. Such situation
further aggravate and accentuate the division between the Fundamental
rights and directive principles, but up to a particular point of time.

In the State of Madras Vrs. Champakam Dorairajan 2 the Supreme

Court observed, in this regard, as :

"The chapter of 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. The directive
principles of state policy have to conform to and run as 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."

In Mohd.Hanif Quarreshi Vrs. State of Bihar 3 the Supreme Court

observed:

"Article 13(2) expressly says that the State shall not make any law
which takes away or abridges the rights conferred by part-III of our
Constitution....The directive principles cannot override this categorical
restriction imposed on the legislative prior power of the State. A

1. Ibid, at p 320
2. AIR 1951 SC 276 (228)
3. AIR 1958 SC 731
 332

harmonious interpretation must be placed upon the Constitution, and so

interpreted it means that the State should certainly implement the
directive principles but it must do so in such a way as not to take away or
abridge fundamental rights".

In re Kerala Education Bill, 1957 1, the Supreme Court held the

directive principles to subserve and cannot override the fundamental
rights conferred by Part-Ill of the Constitution and observed:

"Nevertheless, in determining the scope and ambit of the

fundamental rights, relies on 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".

The above decisions saw a conflict between fundamental rights

and Directive Principles and gave prominence to fundamental rights and
talked of harmony between the two, or to neglect the directive principles.
But this not true in view of their history as discussed earlier. Originally
they were an integrated one and complementary to each other, one was
fulfilling the other . And such an approach was adopted by the Supreme
Court in its latter decision shedding the conflict approach.

In Golaknath Vrs. State of Punjab 2 Subba Rao C. J., observed: The

fundamental Rights and Directive Principles of State Policy form an
integrated whole and are elastic enough to respond to the changing need
of the society,

Hegde J. in Chandrabhavan Boarding and Lodging, Bangalore Vrs.

State of Mysore 3, giving a new direction to this approach observed:

"The provisions of the Constitution are not erected as barriers to

progress. They provide a plan for orderly progress towards the social
order contemplated by the Preamble to the Constitution. They do not
permit any kind of slavery, social, economic or political. It is fallacy to
think that under our Constitution, there are rights and no duties. While
rights conferred under Part-Ill are fundamental, the directives given
under Part-IV are fundamental in the governance of the country. We see
no conflict on the whole between provisions contained in Part-Ill and
Part-IV. They are complementary and supplementary to each other. The
provisions of part-IV enable the Legislature and the Govt, to impose

1. AIR 1958 SC 956 (960/961)

2. AIR 1967 SC 1643
3. AIR 1970 SC 2042 (2050)
 333

various duties on the citizens. The provisions therein are deliberately

made elastic because the duties too be imposed on the citizens. The
provisions therein are deliberately made elastic because the duties to be
imposed on the citizens depend on the extent to which the directive
principles are implemented. The mandate of the Constitution is to build a
welfare society in which justice, social, economic and political shall
inform all institutions of our national life. The hopes and aspirations
aroused by the Constitution will be belied if the minimum of the lowest of
our citizens are not met".

Although the above observation has been criticized by H.M.Seervai

as unnecessary and forms obiter, still it is very relevant and path breaking
in the road to a welfare Society/State. The following discussion of various
decisions of the Supreme Court shall reveal the above observation to be
true and significant.

It is significant to note the valuable words of Granville Austin on

the relationship of Directive Principles of State Policy and Fundamental
Rights, which have been heavily relied upon by the Supreme Court of
India which run as :

"The Indian Constitution is first and foremost a social document.

The majority of its provisions are either directly aimed at furthering the
goals of the social revolution or attempt to foster this revolution by
establishing the conditions necessary for its achievement. Yet despite the
permeation of the entire Constitution by the aim of national renaissance,
the core of the commitment to the social revolution lies in parts-III and IV,
in the Fundamental Rights and in the Directive Principles of State Policy.
These are the conscience of the constitution.

The Fundamental Rights and Directive Principles had their roots

deep in the struggle for independence. And they were included in the
Constitution in the hope and expectation that one day the tree of true
liberty would bloom in India. The Rights and Principles thus connect
India's future, present and past, adding greatly to the significance of their
inclusion in the constitution, and giving strength to the pursuit of the
social revolution in India".1

2:3 Austin propounded the idea that parts-III and IV constitute the
conscience of the constitution and are the vehicle of social revolution and
responsible for the blooming of liberty in India.

In Kesavananda Bharati Vrs. State of Kerala 2 one of the landmark

in the constitutional history of India, the Supreme Court deliberated upon
the relationship between the Fundamental Rights

1. Austin, Granville :The Indian Constitution Cornerstone of nation p.50

2. AIR 1973 SC 1461
 334

and Directive Principles of State Policy and held them to be

supplementary to each other. After this the conflict theory was replaced
by the supplement theory establishing the fact that there exist no
antithesis between the Fundamental Rights and Directive Principles
rather they are part of an integrated constitutional scheme to attain a
desired end.

In this case shelat and Grover J. observed: "Our Constitution

makers did not contemplate any disharmony between the fundamental
rights and the directive principles. They were meant to supplement one
another. It can well be said that the directive principles prescribed the
goal to be attained and the fundamental rights laid down the means by
which goal was to be achieved".1

Hedge and Mukherjea J. after referring to atrocities committed

during world war-II, world human rights movements, Atlantic Charter,
U.N. Charter, declaration of human rights and the effect of French
Revolution on freedom and social justice observed:

"The Directive Principles and Fundamental Rights mainly proceed

on the basis of human rights. Representative democracies will have no
meaning without economic and social justice to the common man. This is
a universal experience....After all freedom is nothing else but a chance to
be better. It is this liberty to do better that is the theme of the Directive
Principles of State Policy in part-IV of the Constitution". 2

Further, they held: "Our founding fathers were satisfied that there
is no antithesis between the Fundamental Rights and the Directive
Principles. One supplements the other. The Directives lay down the end
to be achieved and Part-Ill prescribes the means through which the goal is
to be reached". 3

Ray J. observed: ".... But the Directive Principles are also

fundamental. They can be effective if they are to prevail over fundamental
rights of a few in order to subserve the common good and not to allow
economic system to result to the common detriment. It is the duty of the
state to promote common good...... The duty of the State is not limited to
the protection of individual interest but extends to acts for the
achievement of thee general welfare..........4
Further he observed:

"Parts-III and IV of the Constitution touch each other and modify.

They are not parallel to each other. Different legislation will bring in
1. Ibid, at p.1607
2. Ibid, at p.1622
3. Ibid, at p.1641
4. Ibid, at p.1707
 335

different social principles. These will not be permissible without social

content operating in a flexible manner".1

Mathew J. observed: "The object of the people in establishing the

constitution was to promote justice, social and economic liberty and
equality. The modus operandi to achieve these objectives is set out in
Parts-III and IV of the Constitution. Both parts-III and IV enumerates
certain moral rights. Each of these parts represents in the main the
statements in one sense of certain aspirations whose fulfillment was
regarded as essential to the kind of society, which the constitution-makers
wanted to build. Many of the articles, whether in Part-Ill or Part-IV,
represent moral rights which they have been recognized as inherent in
every human being in this country....what is the importance to be
attached to the fact that the provisions of Part-Ill are enforceable in a
court and the provisions of par-IV are not? Is it that the rights reflected in
the provisions of part-III are some how superior to the moral claims and
aspirations reflected in the provisions of part-IV? I think not. Free and
compulsory education under Art.45 is certainly as important as freedom
of religion under Art. 25. Freedom from starvation is as important as right
to life........ " 2

Further he observed: "It is relevant in this context to remember that

in building up a just social order it is sometimes imperative that the
Fundamental Rights should be subordinated to Directive Principles. The
makers of the Constitution had the vision of a future where liberty,
equality and justice would be meaningful ideals for every citizen. There is
a certain air of unreality when you assume that Fundamental Rights have
any meaningful existence for the starving millions.... Economic goals
have an un-contestable 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. "Tell an unprovisioned man lost in
the desert that he is free to eat, drink, bathe, read..........No one is
hindering him". For the attainment of most of these ends be might better
be in prison.... To contemporary consciousness it has become an axiom
that there can be no freedom without provision." (Roscoe Pound)3.

He further observed: "The fundamental Rights themselves have no

fixed content; most of them are more empty vessels into which each
generation must pour its content in the light of its experience. Restriction,
abridgement, curtailment and even abrogation of these rights in
circumstances not visualized by the Constitution makers might became
necessary; their claim to supremacy or priority is liable to be overborne at
particular stages in the history of the nation by the moral claims

1. Ibid, at p.1714
2. Ibid, at p.1248
3. Ibid.atp.1951
 336

embodied in Part-IV.....Judicial review of a constitutional amendment for

the reason that it gives priority value to the moral claims embodied in
part-IV over the fundamental Rights embodied in part-III is
impermissible".1

Chandrachud J.,observed : "Our decision of this vexed question

must depend upon the postulate of our Constitution which aims at
bringing about a synthesis between Fundamental Rights and the Directive
Principles of State Policy, by giving to the former a pride of place and to
the letter a peace of permanence. Together, not individually, they form
the core of the Constitution. Together, not individually, they constitute
its true conscience". 2

Now with the above observation it become crystal clear that the
Fundamental rights enumerated in part-III and Directive Principle of
State Policies enumerated in Part-IV of the Constitution constitute an
integrated one. They constitute the core of the fundamental human rights.
There is no antithesis or conflict between them, as their synthesized
implementation will only lead the nation to achieve the socialistic and
welfare goal with the dignity and liberty of the individual.

The unity and integrity of part-III rights and part-IV principles was
again upheld in Minerva Mills Vrs. Union of India 3. Chandrachuda C.J.,
delivering the majority judgment observed:

"The history of India's struggle for independence and the debates

of the Constituent Assembly show how deeply our people value their
personal liberties and how those liberties are regarded as an
indispensable and integral part of our Constitution. It is significant that
though parts-III and IV appear in the Constitution as two distinct
fasciculus of articles, the leaders of our independence movement drew no
distinction between the two kinds of state's obligations-negative and
positive".4

Further, he observed: "The goals set out in part IV have, therefore, to be

achieved without the abrogation of the means provided for by Part-III. It
is in this sense that Part-III and IV 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".5 Similar approach as
to the synthesis between Fundamental Rights & Directive Principles of
State Policy has been adopted by the Supreme Court in V. Markandeya
Vrs. State of Andhra Pradesh 6.
1. Ibid, at p.1952 and 1953
2. Ibid, at p.2021
3. AIR 1980 SC 1789
4. Ibid, at p.1805
5. Ibid, at p.1807
6 AIR 1989 SC 1308(1314)
 337

2:4 Directive Principles as Reasonable restrictions

In State of Bombay Vrs. F.N. Balsara 1 the court lent credence to

Article 47 of Part-IV to be used as a pretext to impose reasonable
restriction on 19(l)(f). Here reasonable restriction was mandated to be
imposed to give effect to a directive principle under Article 47 Which
mandates..."the State shall endeavour to bring about prohibition of
consumption except for medicinal purposes, intoxicating drinks and of
drugs which are injurious to health as per the Bombay prohibition
Act,1949, which were challenged. Dealing with the question the Court
held:

"In judging the reasonableness of the restriction imposed by the

Act, one has to be bear in the mind the directive principles of state policy
set forth in Art.47 of the Constitution,"2

Simlarly In Bijay Cotton Mills Vrs. State of Ajmer,3 the Surpreme

Court upheld the constitutional validity of the Minimum Wages Act,
1948; which was meant to give effect to directive principles of state policy
in Art.43 of Constitution. It was held that fixation of wages for labourers
did not violate freedom of trade under Art.19 (g) similar approach was
adopted in Minerva Mills Vrs. Union of India 4, Kasturilal Lakshmi
Reddy Vrs. State of I & K5 and many other cases.

2:5 Directive Principles raised to the Status of Fundamental Rights:-

A new dimension has opened up in the relationship of Directive

Principles of State policy and Fundamental rights by the various decision
of the Supreme Court, wherein the status of certain Directive Principles of
State Policy has been elevated to the status of fundamental rights, making
them enforceable.

In M. H. Hoskot Vrs. State of Maharastra 6 the Supreme Court has

held legal aid as fundamental right under Article 21 available to all needy
prisoner as a part of public justice. The court observed:

1. AIR 1951 SC 318

2. Ibid at p.328
3. AIR 1955 SC 33
4. AIR 1980 SC 1789
5. AIR 1980 SC 1992
6. AIR 1978 SC 1548
 338

This article (Art, 39, which provides for equal justice and free legal
aid under part-IV) is an interpretative tool for Art-21...Courts cannot be
inert in the face of Art. 21 and 39 A......If a prisoner sentenced to
imprisonment, is virtually unable to exercise his constitutional and
statutory right of appeal, inclusive of special leave to appeal for want of
legal assistance, there is implicit in the Court under Article 142 read with
Arts. 21 and 39A of the Constitution, power to assign counsel for the
imprisoned individual for doing complete justice.

In Randhir Singh Vrs. Union of India 1 the Supreme Court

observed:

"It is true that principle of equal pay for equal work is not
expressing declared by our constitution to be a fundamental right. But it
certainly is a constitutional goal...Art-14 of the constitution enjoins the
State not to deny any person equality before the law or the equal
protection of the laws and Art. 16 declares that there shall be equality of
opportunities for all citizens in matters relating to employment or
appointment to any office under the State. These equality clauses of the
Constitution must mean same thing to everyone. To the vast majority of
the people, the equality clauses of the Constitution would mean nothing if
they are unconcerned with the work they do and the pay they get. To
them equality clauses will have some substance if equal work means
equal pay. The preamble to the Constitution declares the solemn
resolution of the people of India to constitute India into a Sovereign,
Socialist, Democratic, Republic ....... The Preamble of the Constitution of
the International Labour Organization recognizes the principle of equal
remuneration for work of equal value as constituting one of the means of
achieving the improvement of conditions involving such injustice,
hardship and privation to large number of people as to produce unrest so
great that the peace and harmony of the world are imperiled. Construing
Arts.14,16 in the light of the Preamble and Art. 39(d) we are of the view
that the principle 'Equal pay for Equal work' is deducible from those
Articles and may be properly applied to cases of unequal scales of pay
based on no classification though those drawing the different scales of
pay do identical work under the same employer"

In Grih Kalyan Kendra Workers' Union Vrs. Union of India 2 the

Supreme Court observed:

"Equal pay for equal work is not expressly declared by the

Constitution as a fundamental right but in view of the Directive Principle
of State Policy as contained in Art. 39(d) of the Constitution "equal pay
for equal work" has assumed the status of fundamental right in service
jurisprudence having regard to the constitutional mandate of equality in
1. AIR 1982 SC 879(881 /882)
2. AIR 1991 SC 1173(1176)
 339

Arts.14 and 16 of the Constitution. Equal pay for equal work and
providing security for service by regularizing casual employment within
a reasonable period has been accepted by this court as a constitutional
goal to our socialistic pattern...."

Right to education is now a Fundamental Right by virtue of Art.

21A in part-III the constitution by the 86th Amendment 2002, which has
been made effective by Right to Education Act 2010. But prior to this
Right to Education was a subject of Directive principles of State Policy
and Arts. 41 and 45 were dealing with it. And prior to Art.21A's coming
into being the Right to Education was raised to the status of Fundamental
Right since ways back since 1993 by the creative interpretation of Art.21
by the Supreme Court. The Supreme Court interpreting the fundamental
right in the light of the Preamble and directive principles read right to
education into Art.21 in Unni Krishnan Vrs. State of U.P.1. In other words
the Supreme Court read a directive principle into the Fundamental Rights
making them supplementary and complementary to each other. In Unni
Krishnan's case the Court observed:

"The right to education, which is implicit in the right to life and

personal liberty guaranteed by Article 21 must be construed in the light of
directive principles in part of the Constitution. So far as the right to
education is concerned there are several articles in part IV (Articles 41,45
& 46) which expressly speak of it ... .The three Articles 45,46 and 41 are
designed to achieve the said goal among others. It is in the light of these
articles that the content and parameters of the right to education have to
be determined. Right to education, understood in the contest of Articles
45 and 41 means: (a) every child/children of this country has a right to
free education until be completed the age of fourteen years, and (b) after
children/citizen completes 14 years, his right to education is
circumscribed by the limits of the economic capacity of the State and its
development".2

Further, the court observed parts III and IV to be supplementary

and complementary to each other and fundamental rights are means to
achieve the good set in part-IV and are to be interpreted in the light of
Directive Principles.

In Air India Staturotv Corporation Vrs. United Labour Union3 the

Supreme Court observed:

"The Directive Principles in our Constitution are fore-runners of

the U.N.O. convention on Right to Development as inalienable human
right and every person and all people are entitled to participate in,

1. AIR 1993 SC 2178

2. Ibid atp.2231,2232
3. AIR 1997 SC 645 (667,668)
 340

contribute to and enjoy economic, social, cultural and political

development, in which all human rights, fundamental freedoms would be
fully realized. It is the responsibility of the State as well as the individuals,
singly and collectively, for the development taking into account the need
fuller responsibility for the human rights, fundamental freedoms as well
as the duties to the community, which alone can ensure free and complete
fulfillment of the human being. They promote and protect an appropriate
social and economic order in democracy for development. The State
should provide facilities and opportunities to ensure development and to
eliminate all obstacles to development by appropriate economic and
social reform so as to eradicate all social injustice. These principles are
imbedded, as stated earlier, as integral part of our Constitution in the
Directive Principles. Therefore the Directive Principles now stand
elevated to inalienable fundamental human rights. Even they are
justiciable by themselves. Social and economic democracy is the
foundation for stable political democracy. To make them a way of life in
the Indian polity, law as a social engineer, is to create just social order,
remove inequalities in social and economic life and socio-economic
disabilities with people are languishing;..

3:1 Article 31B And 31C and Fundamental Rights-

Article 31A, 31B and 31C appear to be exceptions or provisions to

this Fundamental Rights, in the sense that they are not withstanding
clauses. Article 31A ousted judicial review over laws restricting right to
property guaranteed under Article 31, we do not propose to discuss the
extent of Article 31A because the very Article 31 has been shifted away
from Part-Ill and enjoined in Article 300A as a non-fundamental but
Constitutional Right.

Article 31 B
Validation of Certain Acts and Regulation:-

"Without prejudice to the validity of the provisions contained in

Art. 31A none of the Acts and Regulations specified in the Ninth Schedule
nor any of the provisions thereof shall be deemed to be void, or ever to
have become void, on the ground that such Act, Regulation or provision
is inconsistent with, or takes away or abridges any of the rights conferred
by any provisions of this part, each of the said Acts and Regulations, shall
subject to the power of any competent legislature to repeal or amend it,
continue in force."

This article was not originally there in the Constitution and this
was added to the Constitution by the very Constitution (First
Amendment) Act, 1951, in order to meet certain desired ends as required
by the peculiar socio-economic condition of the nation. Provisions like
that contained in Arts 31B, 31C are quite unheard of in modern
 341

democracy, which straight way are infraction upon fundamental rights,

which leaves the constitutional governance and apparatuses in
helpless/ undone condition. Article 31B creates an absolutely immunized
zone wherein all constitutional guarantees and promises as to
fundamental rights cease to have effect. It overrides the very sanctified
inalienable fundamental rights and their enforcement. In the face of Art
31B read with Ninth Schedule Articles like 13 and 32, which are treated
bastion and fortress from where fight for fundamental rights can be
undertaken, are helpless and impotent, they are toothless to examine the
law(s) which are put in schedule IX abridging or breaching fundamental
right(s). Article 31B is an attempt to remove / nullify fundamental rights
further nullifying the constitutional recognition of sanctity of
fundamental rights as natural rights and their enforcement and
protection.

But such a provision, which basically goes against democratic and

constitutional ethos and principles, was thought of for a noble cause of
bringing about socio-economic reformation in the country. India was just
beginning it's democratic journey to ensure socio-economic justice to
citizens in democratic journey to ensure socio-economic justice to citizens,
when it felt the existing provisions may not lead the socio-economic
reformation rather those may impede its reformatory goal, so the
Parliament brought about the Constitution (1st) Amendment inserting
inter alia Arts 31A and 31B saving certain laws from challenge as to their
constitutionality. Art. 31B was came into existence with Art 31A, and as
they were conceived together, Article 31B must be construed in the light
of Art. 31 A. As their history suggest they were conceived together to
serve same purpose. The very intention behind their enactment was to
bring about and support agrarian reform so as to serve the cause socio­
economic justice. As the language of Art.31 A suggests, it was sufficient to
validate any legislation regarding subjects specified therein if it abridges
or takes away fundamental rights under Article 14 and 29,but out of
overzealousness and apprehension they desired to adopt the safest route
and created a completely immunized zone in schedule-IX for the laws
supposed to be violative of part-III rights or declared already void. As its
history suggest Art. 31B and Ninth schedule were intended to include law
covered by Art. 31A. This become apparent from the speeches of law
Minister Dr. Ambedkar and Prime Minister Jawaharlal Nehru during the
discussion on the 1st Amendment.

Regarding 9th schedule Dr. Ambedkar admitted: "it is an unusual

procedure" "... all the law that have been saved by this schedule are law
that fall under Art. 31 A" (quoted by Bhagawati J. in Minerva Mills Case)1.

Jawaharlal Nehru told the Parliament: "It is not with any great
satisfaction or pleasure that we have produced this long schedule, we do

1. AIR 1980 SC 1789 (at p.1830)

 342

not wish to add to it for two reasons. One is that the schedule consists of a
particular type of legislation, generally speaking and another type should
not come in ...... " (empharises supplied) (quoted by Bhagawati J. in
Minerva Mills ltd case1

As regards Article 31B Bhagawathi J. in Minerva Mills Ltd Vrs.

Union of India 2, observed :

"This article was introduced in the Constitution (First

Amendment) Act 1951. Article 31A as originally introduced was confined
only to legislation for acquisition of an estate or extinguishment or
modification of any rights in an estate and it saved such legislation from
attack under Articles 14, 19 and 31. Now once legislation falling within
this category was protected by Art 31 A, it was not necessary to enact
another saving provision in regard to the same kind of legislation. But,
presumably, having regard to the fact that the constitutional law was still
in the stage of evolution and it was not clear whether a law, invalid when
enacted could be revived without being re-enacted. Parliament thought
that Article 31A, even if retrospectively enacted, may not be sufficient to
ensure the validity of a legislation which was already declare void by the
courts as in Kameshwar Singh's case 3, and therefore considered it
advisable to have a further provision in Art.31B to specifically by-pass
judgments striking down such legislation. That seems to be the reason
why Art.31B was enacted and statutes falling within Article 31A were
included in the 9th Schedule. Article 31B was conceived together with
Article 31A as part of the same design adopted to give protection to
legislation providing for acquisition of an estate or extinguishment or
modification of any rights in an estate. The 9th Schedule of Art. 31B was
not intended to include laws other than those covered by Art.31A".

Further he observed: "Arts.31A and 31B were thus intended to

serve the same purpose of protecting legislation falling within a certain
category. It was a double barreled protection which was intended to be
provided to this category of legislation, since it was designed to carry out
agrarian reform which was so essential for bringing about a revolution in
the socio-economic structure of the country. This was followed by the
Constitution (fourth Amendment) Act, 1955 by which the categories of
legislation covered by Art. 31A were sought to be expanded by adding
certain new clauses after clause (a)".

Bhagawati J. discussed various constitutional amendments as to

inclusion of different Acts in 9th schedule and then came to constitutional
(29th Amendment) Act, 1972 involving two Kerala Agrarian reform

1. Ibid, at .p.1830
2. AIR 1980 1789(1830)
3. (AIR 1952 SC 252)
 343

statutes' inclusion in 9th schedule, which were subject matter of discussion

1,
the Kesavanada Bharati's case wherein the basic structure test was
advanced subject to which, only Amending power of Parliament can be
exercised and observed:

"I do not think we would be justified in re-opening the question of

validity of these constitutional amendments and hence we hold them to
be valid. But, all constitutional amendments made after the decision in
Kesavananda Bharati's case would have to be tested by reference to the
basic structure doctrine, for Parliament would then have no excuse for
saying that it did not know the limitation on its amending power. It may
be pointed out that quite a large number of statutes have been included in
the 9th Schedule by the subsequent constitutional amendments and
strategy enough, we find for the first-time that statutes have been
included which have no connection at all with Articles 31A or 31C and
this device of Art.31B which was originally adopted only as means of
giving a more definite and assured protection to legislation already
protected under Article 31 A, has been utilized for the totally different
purpose of excluding the applicability of Fundamentals Rights to all kind
of statutes which have nothing to do with agrarian reform or Directive
Principles. This is rather a disturbing phenomena."(p.l831)

Based on the above observation Bhagwati J. further observed: "....

In every case, therefore, where a constitutional amendment includes a
statute or statutes (excepting those covered by Art.31A or 31C) in 9*
schedule , its constitutional validity would have to be considered by
reference to the basic structure doctrine and such constitutional
amendment would be liable to be declared invalid to the extent to which
it damages or destroys the basic structure of the Constitution by
according protection against violation of any particular fundamental
right". (P. 1832)

The above observations, made by Bhagawati J., which was the

minority one in Minerva Mills Case, became the majority decision in
Waman Rao Vrs. Union of India, 2 In this case the unanimous order was
issued as :

"...we hold that all amendments to the Constitution which were

made before April 24,1973 (the date of decision of Kesavananda Bharati's
case) and by which the 9th schedule to the constitution was amended from
time to time by the inclusion of various Acts and Regulations therein, are
valid and constitutional. Amendments to the Constitution made on or
after April, 24,1973 by which the 9th schedule to the Constitution was

1. (AIR 1973 SC 1461)

2. AIR 1981 SC 271
 344

amended from time to time by inclusion of various Acts and Regulations

therein, are open to challenge on the ground that they, or any one or more
of them, are beyond the constituent power of the Parliament since they
damage the basic or essential features of the Constitution or its basic
structure..."

Delivering the judgment Chandrachud C. J. observed: "Thus, in so

far as the validity of Article 31B read with the Ninth Schedule is
concerned, we hold that all Acts and Regulations included in the Ninth
Schedule prior to April 24,1973 will receive the full protection of Art. 31B.
Those laws and regulations will not be open to challenge on the ground
that they are inconsistent with or take away or abridge any of the rights
conferred by any of the provisions of part-III of the Constitution. Acts and
Regulations, which are or will be included in the Ninth Schedule on or
after April 24,1973 will not receive the protection of Art. 31B for the plain
reason that in the face of the judgment in Kesavananda Bharati's there
was no justification for making additions to the Ninth Schedule with a
view to conferring blanket protection on the laws included therein. The
various constitutional amendments, by which additions were made to the
Ninth Schedule on or after April 24,1973 will be valid only if they do not
destroy the basic structure of the Constitution".1

It is relevant here to note that the date April 24,1973 given in the
above observations is the date which marked the enunciation of the
theory of basic structure subject to which only the Parliament can amend
the Constitution. This brought about the culmination of the process of
unfettered exercise of power to abrogate part-III rights or part-III
altogether and which can be ascribed to the very salutary doctrine of basic
structure. Now Art. 31B and schedule 9th cannot be used to abrogate the
very sacred individual right as enumerated in Part-III, which is now
limited by the basic feature doctrine.

Upholding the sanctity of fundamental rights and doctrine of basic

feature as a interdict upon the free exercise of power under article 31B
and Ninth schedule the Supreme Court reiterating its earlier standard
discussed the nature of Art. 31B and made similar observation permitting
judicial review of Ninth Schedule law in I.R.Coelho Vrs. State of Tamil
Nadu 2 as:

".... The first aspect to be borne in mind is that each exercise of the
amending power inserting laws into Ninth Schedule entails a complete
removal of the fundamental rights chapter vis-a vis the laws that are
added in the Ninth Schedule. Secondly, insertion in Ninth schedule is not

1 .Ibid, at p.291
2. AIR 2007 SC 861
 345

controlled by any defined criteria or standards by which the exercise of

power may be evaluated. The consequence of insertion is that it nullifies
entire part-III of the Constitution. There is no constitutional control on
such nullification. It means an unlimited power to totally nullify part-III
in so far as Ninth schedule legislations are concerned. The Supremacy of
the Constitution mandates all constitutional bodies to comply with the
provisions of the constitution....1 2

"Fundamental rights enshrined in part-III were added to the

Constitution as a check on the State power, particularly the legislative
power. Through Article 13, it is provided that the State cannot make any
laws that are contrary to part-III .The framers of the Constitution have
built a wall around certain parts of fundamental rights, which have to
remain forever, limiting ability of majority to intrude upon them. That
wall is the 'Basic structure' doctrine. Under Article 32, which is also part
of part-III, Supreme Court has been vested with the power to ensure
compliance of part-III. The responsibility to judge the constitutionality of
all laws is that of Judiciary. Thus, when power under Article 31B is
exercised, the legislations made completely immune from Part-III results
in a direct way out, of the check of Part-III, including that of Article 32. It
cannot be said that the same Constitution that provides for a check on
legislative power, will decide whether such a check is necessary or not. It
would be a negation of the Constitution. In Waman Rao's case, while
discussing the application of basic structure doctrine to the first
amendment it was observed that the measure of the permissibility of an
amendment of a pleading is how far it is consistent with the original; you
cannot by an amendment transform the original into opposite of what it is
2

"Indeed, if Article 31B only provided restricted immunity and it

seems that original intent was only to protect a limited number of laws, it
would have been only exception to part-III and the basis for the initial
upholding of the provision. However, the unchecked and rampant
exercise of this power, the number having gone from 13 to 284, shows that
it is no longer a mere exception. The absence of guidelines for exercise of
such power means the absence of constitutional control which results in
destruction of constitutional supremacy and creation of parliamentary
hegemony and absence of full power judicial review to determine the
constitutional validity of such exercise" .3

Taking basic structure doctrine as testing apparatus and permitting

judicial review, the Supreme Court observed: "...The basic structure
doctrine requires the state to justify the degree of invasion of fundamental
rights. Parliament is presumed to legislate compatibly with fundamental
rights and this is where judicial review comes in. The greater the invasion
1. Ibid, at p.883
2. Ibid, at p.884
3. Ibid, at p.884
 346

into essential freedom, greater is the need for justification and

determination by court whether invasion was necessary and if so to what
extent. The degree of invasion is for the court to decide. Compatibility is
one of the species of Judicial Review, which is premised on compatibility
with rights regarded as fundamental. The power to grant immunity, at
will, on fictional basis, without full judicial review, will nullify the entire
basic structure doctrine. The golden triangle (Arts. 14,19, 21) referred to
above is the basic feature of the Constitution as it stands for equality and
rule of law.

"The result of aforesaid discussion is that the constitutional

validity of the Ninth Schedule laws on the touchstone of basic structure
doctrine can be adjudged by applying the direct impact and effect test i.e.
rights test, which means the form of an amendment is not the relevant
factor, but the consequence thereof would be determinative factor".1

This brought the unguided, unregulated Art-31B and Ninth

Schedule, which was a threat to the very existence of constitution and
constitutionalism, within the vires of judicial review, balancing the
authority of constitutional functionaries /organs.

3:2 Article 31 C

Article 31C marks the beginning of a new chapter in the history of

constitutional law by shifting the focus from fundamental rights to the
directive principles of State policy. Up to the birth of the Article 31C the
fundamental rights had absolute sway/influence over the directive
principles. Up to this point fundamental rights prevailed over the
directive principles of state policy and any law enacted to give effect to
the directive principles were invalidated, if such law conflicted or
abridged any fundamental rights under part-III of the Constitution,
making part-IV of the Constitution completely subservient to the part-III
of the Constitution.

Article 31C came into being as a result of the Bank Nationalization

case (R. C. Copper Vrs. Union of India, 2, which shielded the fate of Art-31
which specifically provided that no law providing for the compulsory
acquisition or requisitioning of property which either fixed the amount of
compensation or specified the principles on which and the manner in
which compensation was to be determined and given could be called in
question in any court on the ground that compensation provided by that
law was not adequate, by pronouncing that :

1. Ibid, at p.892
2. (AIR 1970 SC 564)
 347

"The owner whose property is compulsorily acquired is

guaranteed the right to receive compensation and the amount of
compensation must either be fixed by the law or be determined according
to the principles and in the manner specified by the law. The law which
does not ensure the guarantee will, except where the grievance only is
that the compensation provided by the law is inadequate, be declared
void".1

And "The broad object underlying the principle of valuation is to

award to the owner the equivalent of his property with its existing
advantages and its potentialities.... " 2 3

Further the court held: "...Where the law provides for compulsory
acquisition of property for public purpose it may be presumed that the
acquisition or the law relating thereto imposes a reasonable restriction in
the interest of the general public. If there is no public purpose to sustain
compulsory acquisition, the law violates Art. 31 (2). If the acquisition is
for a public purpose, substantive reasonableness of the restriction, which
includes deprivation may, unless otherwise established, be presumed, but
enquiry into reasonableness of the procedural provisions will not be
excluded. For instance if a tribunal is authorized by an Act to determine
compensation for property compulsory acquired, without hearing the
owner of the property, the Act would be liable to be struck down under
Art. 19(l)(f)". 3

As the above decision stripped the State of its power and subjected
it to judicial review and part-III to act for public purpose or as per the
Directive Principles of State Policy, so the Parliament thought to bring
into book Art. 31C by the Constitution (25th Amendment) 1971 to
surmount the difficulties placed in the way of giving effect to the
Directive Principles of State Policy, and which has been amended twice in
its life as yet. Originally Art. 31C reads as : "Saving of laws giving effect
to certain directive principles-

Notwithstanding anything contained in Art.13, no law giving effect

to the policy of the State towards securing the principles specified in
clause (b) or clause(c) of Article 39 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, article 19 or article 31; and no law
containing a declaration that it is for giving effect to such policy shall be
called in question in any court on the ground that it does not give effect to
such policy;

1. Ibid, at.p.605
2. Ibid, at p.609
3. Ibid, at p.597
 348

Provided that where such law is made by the Legislature of a State,

the provisions of this article shall not apply thereto unless such law,
having been reserved for the consideration of the president, has received
his assert.

The above amendment inserting Article 31C to the Constitution

was indeed a drastic one, which took away the power of judicial review
giving precedence to few directive principles over few fundamental
rights. However the very purpose behind it was to further the growth of
nation in a socialistic pattern.

In Kesavananda Bharati Vrs. State of Kerala 1 the constitution (25th)

Amendment inter alia was challenged as being unconstitutional. And the
Court by majority held the first part of Article 31C to be valid whereas the
second part namely, "and no law containing a declaration that it is for
giving effect to such policy shall be called in question in any court on the
ground that it does not give effect to such policy", to be invalid as being
destructive of basic structure of the Constitution i.e. the judicial review.

Now with the second part being declared void, the Court will have
jurisdiction to examine any law passed to implement the directive
principles contained in Art 39 (b) and (c) as to whether there is any nexus
between such law and Art-39 (b) and (c).

Then came Constitution (42nd) Amendment Act-1976, Amending

Art-31C inter alia which runs as: "Section 4 — In articles 31C of the
Constitution, for the words, branches ,letters and figures " the principles
specified in clause(b) or clause(c) of article 39" the words and figures " all
or any of the principles laid down in part-IV shall be substituted" .

And then came 44* Amendment for better protection of

Fundamental Rights, which amended inter alia Arts. 19, 31C and omitted
Art-31.

The 42nd amendment considerably broadened the scope of Art.

31C, by conferring precedence to Directive Principles over the
Fundamental Rights and completely removing the power of judicial
review vis-a-vis power of the State to enact law regarding part-IV
principles, in utter disregarded to the essence of constitutionalism and
Rule of law, although with an aim to built an egalitarian, socialistic
pattern of society. This made fundamental rights subservient to part-IV
principle. With this came a change in the relationship between the part-III
rights and part-IV principles, which altered the constitutional landscape
originally thought out and planned. Now no law giving effect to any of

1. AIR 1973 SC 1461

 349

the Directive Principles can be invalidated or declared void on the ground

of inconsistency with Arts. 14 and 19.

The 42nd Amendment giving primary to Directive Principles came

in for discussion and decision as to its constitutional in Minerva Mills Ltd.
Vrs. Union of India 1, wherein the Supreme Court by majority held Sec.4
of Constitution (42nd) Amendment, substituting the words and figures "
all or any of the principles laid down in Part-IV for the words and
figures" the principles specified in Cl.(b) or Cl.(c) of Art-39 in Art. 31C, as
beyond the amending power of the parliament and is void since it
damages the basic or essential features at the Constitution and destroys
its basic structure by a total exclusion of challenge to any law on the
ground that it is inconsistent with, or takes away or abridges any of the
rights conferred by Arts. 14 or 19 of the Constitution, if the law is for
giving effect to the policy of the State towards securing all or any of the
principles laid down in Part-IV of the Constitution.

Invalidating Sec.4 of the 42nd Amendment, the Court per

Chandrachud observed: "The unamended Art. 31C forms the subject
matter of a separate proceeding and we have indicated therein that it is
constitutionally valid to the extent to which it was upheld in
Kesavananda Bharati2

"By the amendment introduced by Sec.4 of the 42nd Amendment,

provision is made in Art. 31C saying that no law giving effect to the
policy of the State towards securing " all or any of the principles laid
down in Part-IV" shall be deemed to be void on the ground that it is
inconsistent with or takes away or abridges any rights conferred by Art.
14, Art. 19 or Art. 31. It is manifest that the scope of laws, which fall
within Art. 31C has been expanded vastly by the amendment, whereas
under the original Art. 31C, the challenge was excluded only in respect of
laws giving effect to the policy of the State towards securing " the
principles specified in Cl. (b) or Cl.(c) of Art. 39 "under the amendment,
all laws giving effect to the policy of the State towards securing "all or
any of the principles laid down in Part-IV are saved from a constitutional
challenge under Arts.14 and 19 (The reference to Art-31 was deleted...)
The question for consideration in the light of this position is whether S.4
of the 42nd Amendment has brought about a result which is basically and
fundamentally different from the one arising under the unamended
article. If the amendment does not bring about any such result its validity
shall have to be upheld for some reasons for which validity of the
unamended article was upheld".3

Further the court observed: "...... To destroy the guarantees given

by Part-Ill in order purportedly to achieve the goals in Part-IV is plainly

1. AIR 1980 SC 1789(1795)

2!bid. at p.1799
3. Ibid, at p.1800
 350

to subvert the Constitution by destroying its basic structure.

"Fundamental rights occupying a unique place in the lives of

civilised societies and have been variously in our judgment as
"transcendental ", " inalienable" and " primordial" for us, it has been said
in Kesavananda Bharati, they constitute the ark of the Constitution.

"The significance of the perception that parts-III and IV together

constitute the core of commitment to social revolution and they, together,
are the conscience of the Constitution is to be traced to the deep
understanding of the scheme of the Indian Constitution. Granville
Austin's observation brings out the true position that parts-III and IV are
like two wheels of a chariot, one no less important than the other. You
snap one and the other will lose its efficacy...... In other words, the Indian
Constitution is founded on the bedrock of the balance between parts-III
and IV. 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 in an essential feature of the
basic structure of the Constitution".1

".... The goals set out in part-IV have, therefore, to be achieved

without the abrogation of the means provided for by part-III . It is in this
sense that parts-III and IV together constitute the core of our Constitution
and combine to form its conscience....

"It is in this light that the validity of the amended Article 31C has
to be examined.... Article 31C begins with a non-obstante clause by putting
Art.31 out of harm's way. It provides for a certain consequence
notwithstanding anything contained in Article 13. It then denudes
Articles 14 and 19 of their functional utility by providing that the rights
conferred by these Articles will be no bar barrier against passing laws for
giving effect to the principles laid down in part-IV. On any reasonable
interpretation, there can be no doubt that by the amendment introduced
by Sec. 4 of the 42nd Amendment, Article 14 and 19 stand abrogated at
least in regard to the category of laws described in Article 31C. The
startling consequence which the amendment has produced is that even if
a law is in total defiance of the mandate of Article 13 read with Articles 14
and 19 , its validity will not be open to question so long as its object is to
secure a directive principles..." 2

Based on the reason as given above and others, the Court observed
lastly : "....... Section 4 of the Constitution 42nd Amendment Act is beyond
the amending power of Parliament and is void since it damages the basic
or essential features of the Constitution and destroys its basic structure by
a total exclusion of challenge to any law on the ground that it is

1. Ibid, at p. 1806
2. Ibid at p.1807
 351

inconsistent with, or takes away or abridges any of the rights conferred by

Articles 14 and 19 of the Constitution, if the law is for giving effect to the
policy of the State towards securing all or any of the principle laid down
in Part-IV of the Constitution".1

A similar view as like Minerva Mills case was adopted upholding

Article 31C as stood prior to its amendment by section 4 of the
Constitution (42nd) Amendment and as not being violative of Basic
Structure in Waman Rao Vrs. Union of India 2.

4:1 Fundamental Rights and Emergency

A stable, tranquil, peaceful with no war like social climate and

good governance are conditions precedent for the effective protection and
enforcement of fundamental rights of man. So any threat to the peace and
security of the Society/State is a threat to the fundamental rights of man.
It cannot be ruled out that a modern democratic state is immune from
such threat, which may be internal as well as external having a potential
to disintegrate the State and hijack the constitutionalism and Rule of law.
And history is the standing testimony as to how situation like war,
external aggression, or internal disturbance/ rebellion, civil war or the like
have rendered impotent and helpless the constitutional machinery. As a
matter of fact it is quite possible that owing to such factors emergent
situation may arise calling for more stringent action on the part of the
Government.

Such an issue of grave importance engaged the attention of the

Constituent Assembly while framing the Constitution for the nascent
Indian democracy. The founding fathers discussed at length on the issue
and in order to meet any emergent situation like war, external aggression,
armed rebellion, threatening the security of the India or any part there of
or failure of constitutional machinery in a State or financial emergency
like emergency provisions of the Constitution conferring extraordinary
power on the Executive to Impose emergency which may be national,
state or financial, to mitigate such situations. Now a very pertinent
question as to the status of Part-Ill rights during the continuance of
Emergency arises, whether emergency can be imposed in derogation of
fundamental rights as enumerated in Part-Ill of the Constitution or not.
Articles 358 and 359 specifically deals with the question posed above by
permitting suspension of fundamental rights during emergencies. Even
such derogation of fundamental rights excepting few like rights to life etc
are permitted by documents like International covenant on human rights,
European Human rights convention.

1. Ibid, at p.1811
2. AIR 1981 SC 271
 352

Article 358 mandates the State to make any law or take any
executive action in complete derogation of Article 19 whereas Article 359
mandates the President to make order suspending by Part-Ill, excepting
rights relating to Articles 20 and 21 and all proceeding pending in any
court for the enforcement of rights as mentioned above if there exist...
These provisions are in tune with the International Law on human rights,
which recognizes certain right as natural, inalienable and non-derogable.
However these provisions give ample power to the State to limit/ abridge
the fundamental rights (excepting rights under Arts.21, 20) in order to
meet emergent, extraordinary situations, which is required of such
situations. The Supreme Court in Union of India Vrs. Bhanudas 1
observed:

"It is hardly necessary to emphasize that the provisions of the

Article 359 are designed to arm the State with special powers to meet
extraordinary situations created in times of grave national emergencies
due to war, external aggression and internal disturbance when the
security of the State nay the very existence of the nation is threatened
necessitating the subordination of individual rights to the paramount
consideration of the welfare of the State.... "

Art 358 completely takes away fundamental right in respect of

Article 19, whereas Art. 359 (I) empowers the president not to suspend or
takes away any fundamental right, but only to suspend the right to move
any court for the enforcement of Part-Ill right except Arts 20 and 21,
during the continuance of emergency .The Supreme Court in Attorney
General of India Vrs. Amrutlal Praiivandas 2 observed:

"While Cl.(l) of Art. 359 empowers the President to suspend the

enforcement of the fundamental rights named in such notification (and
any and all proceedings in that behalf in any court) it does not empower
the president to suspend the fundamental rights. Evidently, the founding
fathers did not think it necessary to clothe the president with such a
power. The words in Cl (I) are clear and unambiguous. They only speak
of suspending the enforcement of the rights themselves. There is no
justification and no basis for holding that the suspension of enforcement
of the rights means in effect the suspension of the rights themselves. If
that was the intention of the founding fathers, they would have said so
expressly. Indeed, they have stated what they mean in explicit language.
In view of the fact that the fundamental rights in Part-Ill are allowed to be
affected by a presidential order, one ought not to read anything more
than what the clause expressly says- and its language leaves no room for
any doubt. Therefore, during the period of the presidential order under
Article 359(1) suspending enforcement of certain rights conferred by

1. AIR 1977 SC 1027(1040)

2. AIR 1994 SC 2179(2196,2197)
 353

Part-Ill is in operation, the state is empowered to make any law or to take

any executive action inconsistent with such rights. All this is so because
the emergency proclaimed to meet the threat to the security of India has
to be effectively implemented. The requirements of emergency constitute
both the foundation as well as on implied limitation upon the power.
What is warranted is what is necessary for effective implementation of
emergency."

So during the proclamation of emergency under Article 359(1) the

fundamental rights of Part-Ill excepting Arts. 21 & 20 are temporarily
clouded or eclipsed for they cannot be enforced during, such period. As
soon as the order imposing emergency ceases to be operative, the right to
action for violation of fundamental rights revives immediately. As the law
stands now, a presidential proclamation imposing emergency under
Article 352 can suspend the enforcement of fundamental right in any
court except rights under Articles 20 and 21 as per Art. 359(1), which shall
remain suspended during the period of emergency or as shorter as may
be specified in the order. It means, firstly the right to enforce the
fundamental rights under articles 20 and 21 remain intact without
suspension making them non-derogable, unabridgable and hence
completely inalienable. And secondly, Art.359 (I) suggest the right to
enforcement of fundamental rights (other that Arts. 20&21) is suspended
during the proclamation of emergency and the rights are not suspended,
simply remain unenforceable means such unenforceable rights are still in
operation, hence any violation of any such rights during such emergency,
though cannot be enforced during emergency still would amount to
violation which can have a remedy or redressal, but we can infer it only
after the cessation of the emergency. So one can have right to remedy for
violation of fundamental rights during emergency only after the
emergency is lifted by another presidential proclamation. But under
Article 358, Art. 19 is totally suspended means the rights under Article 19
are suspended during emergency means, it can have no right to action in
case of its breach during the emergency even after the cessation of
emergency.

Such issues came for discussion before the Supreme Court in

Makhan Singh Vrs. State of Punjab1 and the court observed:

"The presidential proclamation under Art-359 cannot widen the

authority of the legislature or the executive; it merely suspends the right
to move to the Supreme Court on the ground that the fundamental rights
have been contravened if the said rights are specified in the order. As
soon as the order ceases to be operative, the infringement of the rights
made either by the legislative enactment or by executive action can

1. AIR 1964 SC 381

 354

perhaps be challenged by a citizen in a court of law and the same may

have to be tried on merits on the basis that the rights alleged to have been
infringed were in operation even during the pendency of the presidential
proclamation. If at the expiration of the presidential order, the parliament
passes any legislation to protect the executive action taken during the
pendency of the presidential order and afford indemnity to the executive
in that behalf, the validity and effect of such legislation may have to be
carefully scrutinized"

Relating to effect of Art. 358 on Art.19 the Court observed: "It

would be noticed that as soon as proclamation of Emergency has been
issued under Article 352 and so long as it lasts, Article 19 is suspended
and the power of the legislature as well as the executive is to that extent
made wider. The suspension of Art.19 during the pendency of the
proclamation of Emergency removes the fetters created on the legislative
and executive powers by Art.19 and if the legislature make laws or the
executive commits acts which are inconsistent with the rights guaranteed
by Art.19, their validity is not open to challenge either during the
continuance of the emergency or even thereafter. As soon as the
proclamation ceases to operate, the legislative enactments passed or the
executive actions taken during the course of said emergency shall be
inoperative to the extent to which they conflict with the rights guaranteed
under Article 19 because as soon as the emergency is lifted, Art-19 which
was suspended during the emergency cannot be challenged even after
emergency is over. In other words, the suspension of Article 19 is
complete during the period in question and the legislative and executive
action, which contravenes Art. 19 cannot be questioned even after the
emergency is over."

The suspension of enforcement of fundamental rights as envisaged

in Art.359 (I) does not automatically come with the presidential
proclamation declaring emergency, it has to be mentioned specifically in
the presidential order specifying enforcement of which specific article is
suspended. It is not necessary that all fundamental rights (except Arts 20
and 21) shall be suspended. The presidential order shall name in the said
order/notification, which fundamental right's enforcement shall be
suspended.

If we take a survey of emergency provisions as regard Arts.352,358

& 359 and their application after the Constitution came into being, we
would find that the said provisions have been applied thrice through out
the history of Independent India and amended thrice i.e. by Constitution
(Thirty eight) Amendment Act, 1975, Constitution (forty second)
Amendment Act. 1976, Constitution (forty fourth) Amendment Act, 1978.
And originally as regard fundamental rights, entire spectrum of
fundamental rights were subject of suspension in relation to their
enforcement, which were amended by the Constitution (44th)
 355

Amendment, withdrawing Arts 20 and 21 from the purview of Art.359(I)

as non-derogable fundamental rights.

The first national emergency came in the wake of Chinese attack in

India. On 26th October, 1962 the President of India issued a proclamation
of Emergency under Article 352(1) declaring that a grave emergency exists
whereby the security of India is threatened by external aggression.

The Presidential order under Article 359(1) ran as: "In exercise of
the powers conferred by C1(I) of Article 359 of the Constitution, the
president hereby declares that the right of any person to move any court
for the enforcement of the rights conferred by Arts.14,21 and 22 of the
Constitution shall remain suspended for the period during which the
emergency issued under Article 359(1) on 26th October,1962 was in force,
if such person has been deprived of any such rights under Defence of
India Act 1962 or any rule or order made there under,"

The question of violation of fundamental rights in relation to the

above presidential order and its judicial review arose in Makhan Singh
Vrs. State of Punjab1, wherein the court of discussed the scope and ambit
of Arts 358 and 359, which has already been discussed above. However
the court pointed out that the infringement of fundamental rights as a
result of presidential order U/A 359(1) can be challenged on any other
ground than those mentioned in the order like violation of any
mandatory statutory provisions or malafides etc as they fall outside the
purview of Art.359 (I) . Then in Mohd.Yakub Vrs. State of I and K 2, the
presidential order itself was challenged as the president being an
authority under article 12 and comes within the definition of the word
'state and an order passed by him under article 359(1) is law under article
13 (2), and consequently an order passed by the president under article
359 is liable to be tested on the anvil of fundamental rights enshrined in
Part-Ill of the Constitution. Also the order was challenged on other
grounds.

As to the above the court observed: "There is nothing in Art.359

which in any way limits the power of the President to suspend the
enforcement of any of the fundamental right conferred by Part-Ill. It is to
our mind quite clear that the President has the power to suspend the
enforcement of any of the fundamental rights conferred by Part-Ill and
there is nothing thereunder, which makes any distinction between one
fundamental right or another. As Article 359 stands, it seems to us, it
clearly envisages that once a proclamation of Emergency has been issued,
the security of India or any part of the territory thereof may require that
the president should suspend the enforcement of any of the fundamental
rights conferred by Part-Ill. There is in our opinion no scope for inquiry
into the question whether the fundamental right the enforcement of
which the president has suspended under Article 359 has anything to do
1. AIR 1964 SC 381
2. AIR 1968 SC 765 (768)
 356

with the security of India which is threatened whether by war or external

aggression or internal disturbance....It follows therefore that it is open to
the president to suspend the enforcement of any of the fundamental
rights conferred by P-III by an order under Article 359 and this article
shows that wherever such suspension is made it is in the interest of the
security of India and no further proof of it is necessary.

"....... The question however is whether such an order can be

considered to be a law for the purpose of Art 13(2) and tested thereunder
Art.13 (2) and Art 359 being parts of the same Constitution stand on an
equal footing and the two provisions have too be read harmoniously in
order that the intention behind Article 359 is carried out and it is not
destroyed altogether by Art.13 (2). It follows that though an order under
Article 359 may be assumed to be law in its widest sense, it cannot be law
within the meaning of Art.13 (2), for if that were so, Article 359 would be
made nugatory .... It follows therefore that an order under Article 359
derives its force from Art.359 itself and takes effect in accordance with its
tenor and cannot be affected Art.l3(2) and cannot be tested under any of
the provisions of part-III of the Constitution which it suspends. (Gulam
Sarwar Vrs. Union of India1 referred).

4:3 Again Emergency was proclaimed in 1971 in the event of Pakistani

attack and then on 26th June, 1975 the president declared emergency for
the third time on the ground that security of India was threatened owing
to 'internal disturbance'. And the presidential order runs as follows:

"In exercise of powers conferred by C1(I) of Art. 359 the president

hereby declares that the right of any person (including a foreigner) to
move any court for the enforcement of the rights conferred by Articles 14,
21 and 22 and all proceedings pending in any court for the enforcement of
the above mentioned rights shall remain suspended for the period during
which the proclamation of Emergency made under C1(I) of Art 352 on the
3rd December and 25th June are both in force."

On January 8, 1976, another presidential order was issued

suspending enforcement of Art.19. The Maintenance of Internal Security
Act (MISA) was amended making preventive detention more drastic and
draconian. "The provisions of the amended MISA covering emergency
detention were extremely drastic and India had never before witnessed
such a rigorous version of preventive detention. A stone-wall was sought
to be created around the grounds of detention. Only the administration
was to have knowledge of the grounds and none else, not even the
detainee. The provisions were so drafted as to exclude judicial review of
any case of emergency detention. The only safeguard was the self-
discipline of the government or the officers having the power to detain

1. AIR 1987 SC 1335

 357

people, the review by the government of the exercise of the power by its
officers, and four monthly review by the government of each case of
detention, and ultimately, control by the central Government".1

This resulted in large scale arrest, detention and violation of

fundamental rights, because of which a number of application, were field
in different High Courts for the issuance of writ of habeas corpus and the
High Courts held that notwithstanding the continuance of emergency and
the presidential order suspending the enforcement of fundamental rights
conferred by Articles 14, 21 and 22 the high court can examine whether an
order of detention is in accordance with the provisions of the
Maintenance of Internal Security Act, which constitute the conditions
precedent to the exercise of powers thereunder or whether the order was
malafide or was made on the basis of relevant materials by which the
detaining authority could have been satisfied that the order of detention
was necessary. These High Courts did fully understand the
jurisprudential ambit of 'procedure established by law' and the concept of
a fundamental right akin to an inalieanable human right which need be
kept above the caprices of the government of the day.

However the matter came to Supreme Court in A.D.M., Tabalpur

Vrs. S. Shukla 2 (better known as habeas corpus case)_wherein the
question before the court for determination was, First, whether in view of
the presidential orders dated June 27,1975 and January 8,1976 under Cl
(I) of Art-359 of the Constitution and writ petition under Article 226
before a High court for habeas corpus to enforce the right to personal
liberty of a person detained under the Act on the ground that the order of
detention or the continued detention is for any reason not under or in
compliance with the Act is maintainable . Second, If such a petition is
maintainable what is the scope or extent of judicial scrutiny particularly
in view of the presidential order dated 27 June, 1978 mentioning inter alia,
Article 22 of the Constitution and also in view of sub-section (9) of sect
16A of the Act (MISA).

As to the above question and overruling High Courts judgment the

court observed: "In view of the presidential order dated 27 June,1975 no
person has any locus standi to move any writ petition under Article 226
before a High Court for habeas corpus or any other writ or order or
direction to challenge the legality of an order of detention on the ground
that the order is not under or in compliance with the Act or is illegal or is
vitiated by malafides factual or legal or is based on extraneous
consideration. Further the court held:

1. Jain M. P. Indian Constitutional Law, 4th Edn. P. 731

2. AIR 1976 SC 1207
 358

"Article 21 is the sole repository of right to life and personal liberty

against, the State. Any claim to a Writ of habeas corpus is enforcement of
Article 21 and is therefore, barred by the presidential order (which has
been suspended by the presidential order under Article 359(1)".

Further it was held: "The suspension of right to enforce

fundamental right has the effect that the emergency provisions in part
XVIII are by themselves the rule of law during times of emergency. There
cannot be any rule of law other than Constitutional rule of law. There
cannot be any Pre-Constitution or post-Constitution Rule of law which
can run counter to the Constitution, nor can there be any invocation of
any rule of law to nullify the constitutional provisions during the times of
emergency".

The majority judgment however altered the very nature and

concept of the very primordial/ancient right of man enshrined in Art.21
by making it subservient to the whim of the Executive, which inter alia
other two organs has come into existence solely to serve the cause of such
rights. The majority's endorsement of wholesale suspension of Art.21
without any safeguard and treating it not as an aberration is indeed
disheartening and startling, and is a body blow to constitutional
jurisprudence. Such observation indeed strikes at the foundation of
democratic set up because Article 21 does not create the very sanctified
right to life and personal liberty, but simply embodies and codifies a very
pious, valuable right of man which has been with him since the very
existence of life of man on the earth.

However the saintly, though dissenting, voice of Khanna J.

upholding the right to life and personal liberty and limiting the power of
State in this regard is salutary and worth commending, which we have
already dealt with in the chapter (VII) dealing with Article 21.

The decision of habeas corpus case, which has been heavily

criticied by scholars across the country , was reiterated by the Supreme
Court in Union of India Vrs. Bhanu Das Krishna Gawde1.

However the salutary Constitution (forty fourth) Amendment

brought about the much needed change felt after the infamous decision in
the habeas corpus case. The 44th Amendment brought a relief by putting
the enforcement of Art.20 and 21 beyond the purview of Art.359 (I) and
nullified the effect of the judgment of the Supreme Court in the Habeas
corpus case.

(Alas, the voice of sanity, Justice H. R. Khanna had to pay the price
of his conscience, for his juristic pronouncement. His claim to be Chief
Justice as the senior most Judge of the Supreme Court was superseded
and this Jurist Judge quietly relinquished his judgeship).

1. AIR 1977 SC 1027