India with its Fundamental Rights and Directive Principles of State Policy

G. L. Batra, ST Guest Columnist, Writer & formerly Addl. Secretary, Indian Parliament and Chairman, Public Service Commission of the Indian State of Haryana

“The rights of man come not from the generosity of the state but from the hand of God” John F. Kennedy

The Fundamental Rights and the Directive Principles of State Policy are the hallmarks for the achievement of our objective of the foundations of our democracy. Fundamental Rights are provided in Part III of the Constitution of India and Directive Principles of State Policy in Part IV of our Constitution. Their vitality is evident from the fact that they have been provided for in the Constitution preceding the chapters dealing with the Legislature, Executive and Judiciary. The Fundamental Rights and the Directive Principles constitute the heart and soul of our Constitution, and the guiding principles behind them are enshrined in the Preamble. The fundamental Rights and Directive Principles are in fact the foundations of our Constitution. Violation of Fundamental Rights is justiciable in Court whereas the violation of directive principles may not be. “No Fundamental Right under Part III of the Constitution is absolute, and it is to be within permissible reasonable restrictions. Hence every individual right has to give way to the right of the public at large[1].” The primacy of the interest of the nation and the security of the State must be read into every article dealing Fundamental Rights[2].”

The idea of including a chapter on fundamental rights in our Constitution, was inspired by the American Bill of Rights, however, the conception of the rights included in Chapter III of our Constitution, differs significantly from the American Bill of Rights in that the rights, under our Constitution are not absolute, and unlike in the USA, the Legislatures in India have been given the right to impose reasonable restrictions (as provided in the Constitution) on at least the major rights, subject to the Courts’ powers of judicial review.  The fundamental rights in our Constitution are quite different from the rights available to the citizens of England. England has an unwritten Constitution and consequently has no encoded fundamental rights. The Parliament in England enjoys theoretical omnipotence and it may be said that the citizens have the right and freedom to do whatever they want as long as they don’t violate the ordinary law of the land. English courts have no power of judicial review over the legislature. In India on the other hand, Parliament is sovereign only within the scope of the powers conferred upon it by the Constitution. The Supreme Court, by virtue of the provisions enshrined in Articles 13 and 32, has the power of judicial review and can strike down legislation which violates the fundamental rights of citizens. The fundamental rights themselves are specifically mentioned in Part III of the Constitution, and the Court has, over the years, given a wide interpretation to these rights, specifically the right to life and personal liberty under Article 21. Indeed, the Supreme Court in India may be rightly termed the “Guardian of the Fundamental Rights”.

The Directive Principles of State Policy recognize the right to development as an inalienable human right and imply the responsibility of the State to take all such measures as are necessary to ensure progress. These measures include provision of facilities and creation of opportunities for the complete development of individuals and society as a whole, and appropriate socio-economic reforms to remove social injustice and inequities. The foundation of the directive principles of state policy which have been embodied in our Constitution as an integral part rests on these principles[3]. The directive principles now stand elevated to inalienable fundamental rights even they are justiciable by themselves[4].

Most of our fundamental rights and directive principles are inter-dependent upon each other. The courts have laid down that the right to live is to live with dignity. You can live to survive but if you are to live with dignity, the facilities provided in the directive principles will have to be provided. The doctrine of eclipse of law is also recognized by our Constitution under Article 13. Article 13(1) provides that all laws in force in the territory of India immediately before the commencement of this Constitution, insofar as they are inconsistent with the provisions of this part, shall to the extent of such inconsistency be void[5]. Article 13(2) provides that the state shall not make any law which takes away or abridges the rights conferred by Part III of the Constitution.

Article 14 provides for the right to equality, equality before law. Article 15 provides for prohibition of discrimination on grounds of religion, caste, sex, place of birth etc. Article 16 provides for equality of opportunity in matters of public employment. Article 17 provides for the abolition of untouchability. Article 18 provides for the abolition of titles, Article 19 for the right to freedom that is the protection of certain rights regarding speech and expression etc. Article 20 provides protection in respect of conviction for offences on the principle of double jeopardy. It reads as follows:

Article 20 – Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.

Article 21 provides for the protection of life and personal liberty. Article 22 gives protection against arrest and detention in certain cases. Article 23 provides rights against exploitation i.e. prohibition of traffic in human beings and forced labour. Article 24 provides for abolition of child labour. Article 25 gives the right to freedom of religion. Article 26, subject to some restrictions, provides for the freedom to manage religious affairs. Article 27 lays down freedom as to payment of taxes for promotion of any particular religion. Article 28 enumerates the freedom as to attendance at religious instruction or religious worship in certain institutions. Article 29 protects the interest of minorities referring to cultural and educational rights. Article 30 provides for right of minorities to establish and administer educational institutions. Article 31 refers to compulsory acquisition of property. This provision was on many occasions amended, and these amendments can only survive in public interest. Finally by the 44th amendment to the Constitution, article 31 was amended, saying ‘it is open to the legislature to fix principles to determine compensation, and unless it was shown that the principles were irrelevant to the determination of the value of the property or by working out the compensation acc to the principles so specified, the compensation becomes illusive. Article 31A is in the form of saving of laws providing for acquisition of an estate etc. Article 31 B refers to validation of certain acts and regulations and Article 31C refers to saving of laws giving effect to certain directive principles.

Article 32 is probably one of the most important provisions in our Constitution, as it provides rights to Constitutional remedies for enforcement of rights conferred by this part of the Constitution. It reads:

Article 32. Remedies for enforcement of rights conferred by this Part.—

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

The provisions relating to fundamental rights and the provision for reliefs and remedy for their violation are complete and comprehensive. The Supreme Court has thus been placed in the position of a custodian as far as the Fundamental Rights guaranteed by the Constitution are concerned.

Probably the most important of the Fundamental Rights, is the right to life and personal liberty enshrined in Article 21 of the Constitution. The Supreme Court, adopting a process of evolutionary interpretation, has given a wide scope to the provisions of this article. The court, in Olga Tellis v. Bombay Municipal Corporation[6], referred to the Directive Principles contained in Articles 39(a) and 41 of the Constitution, and held that these articles must be regarded as equally fundamental to the understanding and interpretation of the meaning and content of the Fundamental Rights. The Court then went on to read the right to livelihood as inherent in the ‘right to life’ under Article 21.

The fundamental rights have been interpreted by the apex court to be the basic fabric of our Constitution. These cannot be taken away, subject to some reasonable restrictions.

Sir Alladi Krishnaswami Ayyar, speaking in the Constituent Assembly, said regarding the Directive Principles of State policy that, “No Government responsible to the people can afford light-heartedly to ignore the provision in Part IV of the Constitution.” The Supreme Court too has held that the directive principles represent ‘not the temporary will of a majority in the legislature but the deliberate wisdom of the nation[7]’.

The Fundamental Rights may pale into insignificance in the face of non-adherence of Directive Principles of State Policy by the State. Article 21 of the Constitution provides for the right to life and personal liberty, and this right encompasses not merely the right to ‘live to survive’, but to live with dignity, and this right can be assured only if facilities for education and social development and healthcare are provided for all by the State. The violation of the Fundamental Rights by the state is justiciable, and citizens have a remedy of approaching the courts to enforce their fundamental rights. The Directive Principles were initially considered as non-justiciable, but in recent cases it has become necessary as fundamental rights and directive principles are inter-dependent in the social order through which we are passing and they have become significant, probably, as significant as Fundamental Right. The Courts have started taking cognizance of Directive Principles through Public Interest Litigation and even suo motu.

It was the Sapru Committee in 1945, which first suggested the categorization of rights under two heads; justiciable, and non-justiciable. The latter category was to cover rights which were in the form of Directives to the State, constituting principles fundamental to the governance of the country. Dr. B. R. Ambedkar justified the inclusion of the Directive Principles, and called them the ‘instrument of instructions’. Speaking in the Constituent Assembly, Dr. Ambedkar said that the directive principles are similar to the instrument of instructions which the British Government issued to the Governor-General and the Governors of the Colonies, including those in India, under the Government of India Act, 1935. These principles are the very foundation of good governance, and the Government would be bound to respect these principles.

In Dr. Ambedkar’s words, “The inclusion of such instructions in a Constitution such as is proposed in the Draft becomes justiciable for another reason. The Draft Constitution as framed only provides a machinery for the government of the country. It is not a contrivance to install any particular party in power as has been done in some countries. Who should be in power is left to be determined by the people, as it must be, if the system is to satisfy the tests of democracy. But whoever captures power will not be free to do what he likes with it. In the exercise of it, he will have to respect these instruments of instructions which are called Directive Principles. He cannot ignore them. He may not have to answer for their breach in a court of law. But he will certainly have to answer for them before the electorate at election time. What great value these Directive Principles possess will be realized better when the forces of right contrive to capture power[8].”

Those Directives are not merely pious declarations. It was the intention of the framers of the Constitution that in future, both the legislature and the executive should not merely pay lip-service to these principles but they should be made the basis of all legislative and executive actions that the future Government may be taking in matter of governance of the country. The hopes and aspirations of vast majority of our people are embedded in the lofty ideals of the directive principles.

Relationship between the Fundamental Rights and Directive Principles of State Policy

The very nature of the fundamental rights contained under Part III and the directive principles contained under Part IV make them diametrically opposite concepts and conflicts are bound to arise, and a continuous effort is on to clearly define the relationship between the two. By law, the fundamental rights are, subject to certain reasonable and lawful restrictions, absolute, and are enforceable in a court of law. The Directive Principles on the other hand were considered non justiciable. However, in cases like State of Himachal Pradesh v. Umed Ram[9], the Supreme Court took the view that in a fit case, the court may direct the executive to carry out the directive principles of the Constitution, and when there is inaction or slow action by the executive, the judiciary must intervene.

In the early stages of the process of Constitutional interpretation by the Supreme Court, the Directive Principles more as moral codes, and were not accorded much legal value. The Court was of the view that in case of conflict between Fundamental Rights and Directive Principles, the former would prevail. It was held that laws made to implement Directive Principles could not take away Fundamental Rights[10]. In Deepchand v. State of U.P, the Court held that directive principles which are expressly made unenforceable under article 37, cannot override the provisions in Part III. The court further observed that there is no relevancy in reference to the Directive Principles; for, the legislative power of the State is only guided by the Directive Principles of State Policy.

Subsequently, the Court started holding that while testing the Constitutionality of a statute, the Directive Principles may be referred to, and they should not be completely ignored in determining the scope and ambit of Fundamental Rights. The Supreme Court took the view that Fundamental Rights and Directive principles should be harmoniously construed so as to give effect to both as far as is practicably possible. In Golak Nath v. State of Punjab[11], the Supreme Court held that Part III and Part IV of the Constitution made up an integrated scheme forming a self-contained code, the scheme being so elastic, as to allow the reasonable enforcement of all directive principles without abridging the fundamental rights.

In the next stage of evolution of judicial interpretation of the matter, the Supreme Court treated Directive Principles as a touchstone to ascertain the validity of social legislations, and as placing a reasonable restriction on the fundamental rights. In State of Kerala v. N. M. Thomas[12], the Supreme Court held that Article 46 (Directive Principle) which provides for the promotion of the economic interest of the Scheduled Castes and Scheduled Tribes, is an exception to the fundamental right provided for in Article 16(1). In this case, the majority of judges departed from the view taken in Champakam Dorairajan that in the case of conflict between Directive Principles and Fundamental Rights, the latter should prevail.

In the next stage of evolution, Fundamental Rights started to be subordinated to the directive principles, especially in cases where the right to property came into conflict with the policies of nationalization and ‘land to the tillers’. In Keshavananda Bharati v. Union of India[13], the Supreme Court made a radical change in its approach and gave full play to the directive principles. The Court observed that Directive Principles are Constitutional commitments to bring about social and economic changes for the teeming millions, and the fundamental rules in the governance of the country (meaning the directive principles) could not be less significant than what is fundamental in the life of an individual.

The current era is marked by the emergence of judicial activism to enforce social justice. The Supreme Court has evolved new Constitutional rights which were hitherto not recognized, and rights like free legal aid to people accused of offences, the abolition of arbitrary discrimination in matters of pay and the principle of equal pay for equal work (subject to certain conditions), amongst others have been introduced into our jurisprudence, even though they find no specific mention in the Constitution. The Supreme Court has thus, through a gradual process of progressive interpretation, incorporated the mandates of the directive principles in the fundamental rights contained in Articles 14, 19 and 21. Thus, the court has virtually enforced the directive principles, using the fundamental rights as a medium.

The fundamental rights refer to protection of the citizens of India against the onslaught of the State and its agencies. Whereas, the Directive Principles are very important as they relate to the progress of the citizens of India. Unless the directive principles are truthfully and sincerely enforced, the objectives which are enshrined in the preamble cannot be achieved. Where the state fails to adhere or ignore or is slow in providing these facilities instructions or directions, the courts intervene by way of either Public Interest Litigation, or judicial activism and hence they direct the State to do where there is a dissection between the State and the individual. Whenever the State has ignored, neglected or failed to follow the Directive Principles contained in Part IV of the Constitution, the courts have either enforced the Directive Principles, or enlarged the scope of the Fundamental Rights to remedy the situation.

The scope of Fundamental Rights, as also of the Directive principles by the Apex Courts have created certain other rights by their judgments which relate to the protection of the citizens, so also has a right to obtain the benefits from the state. These are the rights which have been created by the decisions and judgments of the apex court which are binding on all the courts as well as the executive.

Soli J. Sorabjee, an eminent and outstanding jurist in his article said, “Another experience we have had is the expanding range and dimension of human rights. Certain fundamental rights are not expressly mentioned in Part III of our Constitution. Nonetheless, they have been judicially deduced from other provisions of our Constitution and have been accorded the status of fundamental rights. For example, freedom of press, right to travel or leave one’s country and to return; right to privacy; guarantee against cruel, inhuman and degrading punishment, and right to education……Another interesting development has been that certain directive principles have been judicially incorporated into the expression ‘life’ in article 21. Life has been interpreted as not merely physical; existence, but the right to live with dignity. As a result, right to medical relief, right to clean, pollution free environment, right to wages consistent with human dignity have in effect become fundamental rights. Should these directive principles be specifically included in the fundamental rights chapter by a Constitutional amendment? This is a subject which should also receive serious consideration……. Experience has shown that non-state actors can also violate fundamental rights on a massive scale. For example, bodies and entities who exercise quasi-government powers or which discharge public functions which have far-reaching public consequences may be regarded as a State for the purpose of Article 12. In the United Kingdom, in the Human Rights Act which came into force on 2nd October 2000, ‘public authority’ is defined as ‘any person, some of whose functions are functions of public nature’. It is a moot question whether the definition of State should not be expanded to provide greater and especially against the all-pervasive evil of discrimination on the grounds of religion, caste and gender[14].”

We are not born free, we are born for freedom. Everybody is born with some inheritance. The gift of life is the greatest of all gifts provided by God and it can become valuable only if the man who is born is given the facilities to rise in life, to live a life with dignity. Everybody requires the basics of life – bread and butter, water, social security and a shelter to live in. What is serious to be considered is that the basic human rights, which are found in other Constitutions, so also in the International Covenant on Civil and Political Rights (ICCPR) 1996, which our country has ratified, should be provided in the Constitution? Our Apex Court is doing a commendable job. They are the real emancipators of the rights of our citizens while interpreting the provisions of the Constitution, whether fundamental rights, directive principles, or other provisions. They are also providing a set of rights to the citizens by the judgments.

The fundamental rights are rights which the framers of our Constitution thought fit to provide to the citizens of India. They are in fact permanent in nature; however their scope has been expanded by the sagacity of interpretation by the apex court. The most vital are the directive principles of state policy which are in fact the foundations of the fundamental rights. If the directive principles are not sincerely adhered to and not provided, the fundamental rights will lose their significance.

Article 21 is in fact an axle in the wheel of fundamental rights as also of the directive principles. It states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The apex Court in Kharak Singh v. State of U.P[15], held that the term ‘personal liberty’ is used in the article as a compendious term to include within itself all the varieties of rights which go to make up personal liberty of man other than those dealt with in several clauses of Article 19(1). The court further held that the term ‘personal liberty’ would include the privacy and sanctity of a man’s home as well as the dignity of an individual.

The word ‘life’ occurring in Article 21 of the Constitution found a broad and expansive interpretation in Olga Tellis v. Bombay Municipal Corporation, Chief Justice Chandrachud, speaking for the Constitution Bench, observed that the principle contained in Article 39(a) and Article 41 must be regarded as equally fundamental to the understanding and interpretation of the meaning and content of the fundamental rights. If there is an obligation upon the state to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life.

In Bandhua Mukti Morcha v. Union Of India[16], the Supreme Court held that the right to live with human dignity enshrined in Article 21 of the Constitution must include protection of health and strength of workers, men and women, and the children to develop in a healthy manner, and in condition of freedom and dignity, education facilities, just and human conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity.

In Maneka Gandhi v. Union of India, and in a series of subsequent decisions, the Supreme Court has spectacularly widened the scope of article 21 and also of articles 14, and 19. It is now settled that :

  1. though Article 21 is couched in negative language, it confers positive rights to life and liberty[17]. It includes the right to free education upto the age of 14 years.
  2. the word ‘life’ in Article 21 means a life of dignity as a civilized human being and not just animal survival[18]; and
  3. the procedure of depriving a person of his life or liberty must be reasonable, fair and just.

The noble ideal of Poorna Swaraj, or complete independence would be incomplete, and indeed meaningless, if the Directive principles of State Policy as enshrined in Part IV of the Constitution are not adhered to sincerely or made fundamental rights. Our survival of life and liberty depends upon it.

In the words of Pandit Jawaharlal Nehru[19], “The Constitution is after all some kind of legal body given to the ways of governments and the life of people. A Constitution, if it is out of touch with the people’s life, aims and aspirations, becomes rather empty if it falls behind those aims, it drags the people down. It should be something ahead to keep people’s eyes and minds up to a certain high mark”.

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[1] State of Punjab v. Ram Lubhaya Bagga, AIR 1998 SC 1703).

[2] Chairman Railway Board v. Chandrima Das, AIR 2000 SC 988

[3] The Constitution of India, D. J. De, p 14 2nd Edition 2005

[4] AIR 1997 SC 645 (full bench)

[5] Keshavan Madhavan Menon v. State of Bombay AIR 1951 SC 128

[6] AIR 1986 SC 180

[7] A. K. Gopalan v. Union of India AIR 1950 SC 27

[8] Constituent Assembly Debates  –  Official Reports, Vol. VII, p 41, Lok Sabha Secretariat, 2nd Reprint 1989

[9] AIR 1986 Sc 847

[10] Champakam Dorairajan v. State of Madras AIR 1951 SC 226

[11]  AIR 1967 SC 1643

[12] AIR 1976 SC 490

[13] AIR 1973 SC 1461

[14] “The lessons to be learnt from the working of our Constitution” pp 234-235, Soli J. Sorabjee, from ‘Fifty Years of Indian Parliament’, Ed. G. C. Malhotra, Lok Sabha secretariat, New Delhi

[15] AIR 1963 SC 1295,

[16] AIR 1984 SC 802

[17]  Unni Krishnan 1993 AIR SC 863

[18] Francis Coralie AIR 1981 SC 746

[19] Constituent Assembly Debates  –  Official Reports Vol VII, p 318