Fundamental Rights and Directive State Principles

When the British left India, after two-hundred years, India’s socio-economic conditions were in shambles. Large sections of the people were living below the poverty line, the peasants, labourers were exploited, the status of women was miserable, child labour, and bonded labourers were common. At that time, both the executive and judicial powers concentrated primarily on district administration, and there was no effective machinery to give justice to the poor people. The framers of the Constitution, wanted to transform India into a prosperous and literate nation. But the resources of the country, at that time were so limited that several rights could not be included within the fold of the Fundamental Rights. However, since they were keen to make some provisions in this regard, they included the Directive Principles of State Policy in the Constitution. [1] 

The Fundamental Rights are privileges of the citizens recognized by the State, and are in the nature of denial of certain authority to the Government. They are, hence negative in character, as opposed to the Directive Principles, which are positive directives, which the Government must at all times follow to establish welfare, egalitarian society, and preserve social and economic democracy. While the Fundamental Rights are justiciable in nature [2] , and can be enforced by a court of law, the Directive Principles are non-justiciable. [3] Inspite of the differences, both the Fundamental Rights and the Directive Principles were of common origin. Therefore they both had the similar objectives, namely to ensure the goal of a welfare society envisaged by the Preamble. While the Fundamental rights seek to achieve this goal by guaranteeing certain minimal rights to the individual as against State action, the Directives enjoin the State to ensure the welfare of the people collectively. Whenever the State makes laws, they should be made consistently with these principles with a view to establishment of an egalitarian society. [4] 

However, it may be possible that the State while implementing the Directive Principles might enact a legislation contravening the Fundamental Rights. [5] The courts have spent a considerable amount of time in deciding what happens in such a case, more importantly, which prevails over the other. The main attempt of this paper is to examine and explore the intricacies of this inter-relationship between Fundamental Rights and the Directive Principles, enshrined in Part III and Part IV of the Constitution respectively

The first part of the paper will focus on the origin of the concept of Directive Principles and Fundamental Rights, and trace as to how inspite of both having a common origin, they were separated by the Constituent Assembly. The next part of the paper will deal with how the judiciary in India has interpreted the relations between them. The judicial decisions have gone through various stages, starting from the strict literal interpretation giving primacy to the Fundamental Rights over the Directive Principles, to the Principles gaining primacy over the Rights, to holding that the Rights and Principles are complementary to each other. The researcher seeks to explore these judgments which bring out the relationship between Fundamental Rights and the Directive Principles.

RESEARCH QUESTIONS

Through this research paper the researcher seeks to answer the following question:

How has the judiciary interpreted the relationship between Fundamental Rights and the Directive Principles of State Policy?

Origin Of Fundamental Rights And Directive Principles Of State Policy

Although, the Fundamental Rights and the Directive Principles of State Policy appear in different parts of the Constitution, historically both had a common origin. The leaders of the Independent Movement did not distinguish between the positive and the negative obligations of the State. Both developed as a common demand, as products of social and national and social revolutions, of their almost inseparable intertwining and character of the Indian politics itself. [6] The demand for certain minimal individual rights dates back to 1895, when the Indian National Congress was formed. Indians wanted the same rights and privileges as that enjoyed by the British in India. The first explicit demand for the fundamental rights was made in the Constitution of India Bill, 1895. Article 16 of the Bill laid down a variety of rights including free speech, free-state education [7] etc. The objective of guaranteeing certain undeniable rights or irrevocable rights against oppression was at the back of the resolution of Madras Congress in 1927 which provided setting up of a committee to draft ‘a Swaraj Constitution of India’ on the basis of Declaration of Rights and the Nehru Report, produced by the Committees headed by Motilal Nehru, in 1928. A genesis of many provisions which has been included under Directive Principles in the Constitution of 1949, found its place in the Nehru Report, under the heading of Fundamental Rights. [8] 

The idea of embodying a code of Directive Principles has been borrowed by the framers of the Constitution from the Irish Constitution of 1937, which contains similar provisions. The Directive Principles were for the first time discussed in the Karachi Resolution, 1931, where two major themes emerged. The first theme dealt with the question of constitutional socialism, discussed in the Irish Constitution, and the second dealt with secular socialism based on Western rationality, which was supported by the members of the Congress Socialist Party. [9] 

However, the idea that some of the rights that are to be incorporated in the Constitution might be non-justiciable was clearly formulated, for the first time in the Sapru Committee Report, in 1945, though it left the further development of that idea to legal experts [10] . It observed that the rights are to be divided in such a manner that “breaches of some may form the subject of judicial pronouncement, and the breaches of others may be remedied without resort to the courts." [11] 

The inclusion of non-justiciable rights in the sub-committee on Fundamental Rights was met with mixed reactions, some being pessimistic, while others optimistic. T. T. Krishnamachari called it as a “veritable dustbin of sentiments attaching no value." [12] But others like Ambedkar, K.T.Shah, Alladi Krishnaswamy Ayyar, and Sir B.N Rao strongly supported the inclusion of the Directive Principles. According to Ambedkar, the Directives were like “Instruments of Instructions’, and were hailed as the essence of the Constitution. Ambedkar thought that the Directives were the most cardinal and important provision of the Constitution. [13] 

The enumeration of the fundamental rights and the non-justiciable directives was also performed by Sir B.N. Rau, in his draft of Fundamental Rights, presented by him in the Fundamental Rights Sub-Committee, which was appointed by the Constitution. It was pointed out by him that some of the provisions could not be enforced by legal action in courts, like the rights to work, leisure, and the like guaranteed under the Soviet Constitution (1936), by Articles 118-121. He therefore divided the rights in the draft into two groups- Group A and Group B. Group B included the Fundamental Rights which were to be “enforced by legal action". These rights later came to embodied in Part III of the Constitution. In Group A on the other hand, Sir- B.N. Rau included the non-justiciable rights, which though could not be enforced by an individual in a court of law, was yet to be a part of the Constitution because of their educational value. [14] 

In the Draft Constitution, the fundamental rights were included in Part III, which consisted of Articles 7-27, while the non-justiciable rights were placed under Part IV, with the heading Directive Principles of State Policy, which consisted of Articles 28-40. It was emphasized that the need for incorporating the directives in the Constitution was because they were “fundamental in the governance of the country". The Drafting Committee and the Constituent Assembly did not accept the amendment proposed by Sir B.N. Rau which would have given primacy to laws made to implement Directive Principles, which conflicted with one or more Fundamental Rights. Though Dr. Ambedkar admitted that the Directive Principles have no legal force, he was not prepared to admit that they were useless. [15] 

That conflict can arise between the Fundamental Rights and the Directive Principles was aptly pointed out by Pandit Jawarharlal Nehru, while speaking on the Constitution (First Amendment) Bill:

“The Directive Principles of State Policy represent a dynamic move towards a certain objective. The Fundamental Rights represent something static to preserve certain rights which exist. Both again are rights. But somehow and sometime it might so happen that dynamic movement and that static standstill do not quite fit into each other."

Soon after the commencement of the Constitution, an undue emphasis was laid on the unenforceability of the Directive Principles without taking into account their importance and the constitutional duty imposed upon the State to implement them. The judicial attitude towards the relationship between Part III and Part IV is discussed in the following section.

Judicial Interpretation Of The Relation Between Fundamental Rights And Directive Principles

Since the Directive Principles lay wide objectives of the State which cannot be enforced in a court of law, while the Fundamental Rights are judicially enforceable, the question as to what happens if one conflicts with another, is a difficult question which the court, have for a long time have struggled to answer. If one traces the way this problem has been approached by the judiciary it would show that while initially the judiciary adopted a strict legal position, taking a literal interpretive approach to Article 37, and held that the Directive Principles are subservient to the Fundament Rights, and in case of an inconsistency between the two, the Fundamental Right would prevail over the Directive Principles.

This point was settled by the Supreme Court in State of Madras v. Champakam Dorairajan [16] , where the court invalidated an order which provided for communal reservation of seats for admission into a State educational institution, even though it was inspired by Article 46. According to the court, since Fundamental Rights were enforceable and the Directive Principles were not, the laws implementing the Directive Principles could not abrogate the Fundamental Rights. The Directive Principles should run subsidiary and conform to the Fundamental Rights. In Venkataraman v. State of Madras, [17] also the same point was reiterated, and said that the Madras Government’s order to give preference to the Harijans and backward classes was held to be unconstitutional for it was discriminatory in relation to other backward classes.

As a result of these judgments, where the orders were struck down as violative of Article 15(1) and 29(2), the Constitution (First Amendment) Act, 1951 was brought about, which added clause 4 to Article 15, stating that nothing in Article 15(1) or 29(2) shall prevent the state from making any social provision for the advancement of socially and educationally backward classes. This clearly implied that the Directive Principles were no less important than Fundamental Rights, However, despite the amendment courts did not give much importance to the Directive Principles. [18] 

Though the judiciary continued to hold that the Directives were subordinate to the Fundamental Rights, slowly an attempt was made to achieve the ideals mentioned Directive Principles, and the judiciary’s view began to undergo a change. The courts realized that there should not be any conflicts between two sets of provisions of the Constitution which have a common origin and a common objective as would nullify either of them. [19] The way out was found to lie in the doctrine of harmonious construction, arising out of the cannon of interpretation that parts of the same instrument must be read together in order to reconcile them with one another. Applying this doctrine, the Supreme Court came to adopt the view that in determining the ambit the ambit of Fundamental Rights themselves, the court might look at relevant Directive Principles. However it must be noted that the earliest formulation of the doctrine of harmonious construction, the court looked at the problem form the other end, namely reading the Directives as being limited by the Fundamental Rights. [20] 

The doctrine of harmonious construction as a new technique of interpretation in this field was introduced in Hanif Quareshi Mohd. v. State of Bihar [21] , where the court invalidated a ban on the slaughter of all cattle, on the ground that it constituted an unreasonable restriction on the right to carry on a butcher’s business, as guaranteed by Article 19(1)(g), notwithstanding the Directive under Article 41. However it was stated that the Constitution has to be interpreted harmoniously, and the Directive Principles must be implemented, but not in a manner that takes away or abridges the fundamental rights. Otherwise the protecting provisions of Chapter III will be "a mere rope of sand" [22] .

Similar view was expressed in In Re Kerala Education Bill [23] where the court held that a law which sought to compel minority education institutions for children, not to charge fees would contravene the fundamental right guaranteed to such institution by Article 30, even though the State was enjoined by Article 45 to provide free education for children below 14. However, Das C.J., was said that the courts must not entirely ignore the Directive Principles and the principle of harmonious construction should be adopted to give effect to both Fundamental Rights and Directive Principles as much as possible. It was stated that while interpreting a statute, the courts would look for the light to the ‘lode star’ of Directive Principles. [24] 

A change in the judicial attitude can be perceived in Sajjan Singh v. State of Rajasthan [25] , where Mudholkar J., said that even if the Fundamental Rights were taken as unchangeable, the much needed dynamism might be achieved by properly interpreting the Fundamental Rights in the light of Directive Principles. Here not only it was emphasized that there is a need to resolve the conflicts between the fundamental rights and the directive principles, but also that the former should be interpreted in light of the latter. In Bijoya Cotton Mills v. State of West Bengal [26] , the Apex Court laid down two rules of construction-one, in case of a conflict between the right of the individual and the laws aiming to implement socio-economic policies, in pursuance to Directive Principles, weight should be given to the latter, and two- every legislation enacted in pursuance of Directive Principles should be construed as one purporting to be in public interest, or as a reasonable restriction to the Fundamental Rights. In Golak Nath v. State of Punjab [27] , also the same principle was applied by Justice Subba Rao, and it was emphasized that the Fundamental Rights and the Directive Principles form an ‘integrated scheme’ which was elastic enough to respond to the changing needs of the society [28] . All the Fundamental Rights are not only in consonance with the provisions of Article 37, but also in complete harmony with the intention of the Constitution makers and the Preamble of the Constitution. Since then the judiciary’s attitude has become more positive and affirmative towards Directive Principles, and both came to be regarded as co-equal. Hence without making the Directive Principles justiciable as such, the judiciary began to implement the values underlying these Principles to the extent possible.

The Supreme Court in C. B. Boarding and Lodging v. State of Mysore [29] , asserted that there is “no conflict on the whole", between the Fundamental Rights and Directive Principles. Here it was stated that the ambit of freedom of business guaranteed Article 19(1)(g) should be determined in the light of the Directive Article, and that the Fundamental Rights and the Directive Principles are complementary and supplementary to each other. The court further elaborated that the provisions of the Constitution are not created as barriers to progress, and that they provide a plan for orderly progress towards social order contemplated by the Preamble to the Constitution. [30] According to the court, while rights conferred under Part III are fundamental, the Directions under Part IV are fundamental in the governance of the country. There is no conflict between the provisions in Part III and Part IV both are complementary and supplementary to each other.

However, since Champakam [31] has not been over-ruled explicitly by any case, the question as to how to reconcile an unavoidable conflict between the Fundamental Rights and Directive Principles still remained uncertain. This issue was resolved by the Supreme Court in the landmark judgment of Kesavananda Bharti v. State of Kerala [32] , where views were expressed that fundamental rights of the few must “subserve the common good" as embodied in the Directive Principles, and that whenever the Legislature made a law to implement a Directive Principle the court should up-hold it notwithstanding its inconsistency with any Fundamental Rights, and irrespective of the rule of harmonious construction as between different mandates of the Constitution [33] . According to Mathew, J. it is imperative that in order to build up a just social order, the Fundamental Rights should be subordinated to the Directive Principles. Hence the view which taken in this case was that the Fundamental Rights should be subordinated to the Directive Principles. [34] Here the court came to the conclusion as regards Article 31C, that if Parliament decides to amend the Constitution, so as to take away a Fundamental Right, in order to give priority to the Directive Principles, the court cannot struck down the amendment on the ground that what was intended to be subsidiary by the Constitution makers has been made dominant. Hence the courts subordinated the Fundamental Rights to the Directive Principles.

The court in State of Kerala v. N.M. Thomas [35] considered the question as to whether the Directive under Article 46 could be invoked as an aid to interpret and cut down the ambit of the guarantee in Article 16(1). The majority read the Directive in Article 46 as an exception to the rule embodied in Article 16(1), apart from Article 16(4). The principle of harmonious construction was reiterated and that every attempt should be made to resolve the apparent conflicts between the two. In Minerva Mills Ltd v. Union of India [36] , Chandrachud, C.J., said that the Fundamental Rights “are not an end in themselves, but are, means to an end". The end is specified in the Directive Principles. Further it was said that the Fundamental Rights and the Directive Principles together constitute the “core commitment to social revolution, and together they are the conscience of the Constitution." The Indian Constitution is founded upon the bedrock of balance between the two. The court held that to give absolute primacy to one over the other is to disturb the harmony of the Constitution, and that this harmony and balance between the two is an essential feature and a basic structure of the Constitution. [37] To destroy the guarantees by Part III in order to achieve the goals in Part IV will destroy the basic character of the Constitution. Hence section 4 of the 42nd Amendment which gave primacy to Directive principles over Fundamental Rights under Articles 14, 19, 31, was held by the majority to be unconstitutional. So the courts went back to holding that the Fundamental Rights and the Directives are complementary to each other and did away with the view that Directive Principals should be given primacy.

In Unnikrishnan v. State of Andhra Pradesh [38] and a host of other cases [39] it was held that Fundamental Rights and Directive Principles cannot be read to be exclusionary of each other. Fundamental Rights are a means to achieve the goals specified in the Directives, and they must be construed in the light of Directive Principles. In Delhi Transport Corporation v. DTC Mazdoor Congress [40] it has been held that Part IV must be read as an integral and incorporeal whole with the subject-matter of what is to be protected by its various provisions particularly fundamental rights. Both Part III and Part IV are like two wheels of a chariot, aiming to make social and economic democracy a truism. [41] 

The fact that the Fundamental Rights should be construed in the light of the Directive Principles has been since then, held by the judges in various cases. This integrative approach, that both Part III and Part IV should be read together, has now come to hold the field. [42] It has now become a judicial strategy to read the Fundamental Rights along with the Directive Principles with a view to define the scope and ambit of the former. Mostly the Directive Principles have been used to broaden, and give depth to some Fundamental Rights, and to imply more rights therefrom for the people over and above what are expressly stated in the Fundamental Rights.

The biggest beneficiary of this approach has been Article 21. By reading Article 21 with the Directive Principles, a bundle of rights has been read into Article 21. Accordingly it has been held that Article 21 includes the right to live with human dignity [43] , the right to enjoy pollution free water, air and environment [44] , the right to health and social justice [45] , the right to education [46] , the right to shelter [47] , the right to privacy etc. [48] 

CONCLUSION

From the above discussion, it will be seen that the development of law regarding the conflict and irreconcilability between fundamental rights and the directive principles, has passed through four distinct stages. At the beginning, a strict literal interpretation was advocated and the Fundamental Rights were would prevail over the Directive Principles. Later in course of time, a perceptible, and a welcome change came over the judicial attitude, and the courts though subordinated the Directives to the Fundamental Rights, took the view that the mechanism of harmonious construction should be used to interpret the two Parts. The next stage came with the case of Sajjan Singh [49] , and Golak Nath [50] , where the judiciary began expanding the Directive Principles and interpreted the two Parts as being co-equal, and without any conflict. Kesavananda Bharti [51] , was a turning point in the history of Directive Principles jurisprudence, where for the first time the court held that the Directive principles should be given primacy over the Fundamental Rights. This was the third stage. However, in Minerva Mills [52] the judiciary again went back to stating that there should be balance and harmony between Part III and Part IV, and that none should be given a primacy over the other. Since then this has been the view taken by the courts in the subsequent cases.

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