Relationship between FR and DP-A critical appraisal

(The article traces the history of judicially evolved proposition that fundamental rights and directive principles should be   harmoniously interpretated)  

Indian constitution has its roots and essence in the freedom struggle which was launched and successfully carried forward to achieve its goal of overthrowing the British Empire. Indian freedom struggle was always characterized and visualized, especially after the advent of Gandhi in 1915, to be a mass based movement rather than an armed uprising lead by few dedicated cadres. To achieve the ultimate objective of gaining independence, leaders of the freedom movement tried to awaken the masses from their passiveness and indifference through politicizing them by conveying the reasons for their miserable conditions due to the exploitative character of the British rule, albeit in their own style.

This essentially involved building confidence in people that the political and civil liberties would be better in independent India in comparison to its restrictive nature in the present regime. Similarly, it was perceived that the socio-economic conditions of the people will improve for the better in a free democratic India. The masses of India responded to call of the leaders by enthusiastically participating in national movement and making numerous sacrifices for attaining independence. Essentially, these promises were incorporated in the Constitution of India in the form of fundamental rights (political liberties) and directive policies (socio-economic liberties). Fundamental rights (FRs) by their very definition are those civil and political rights which have been made legally enforceable by constitution itself through writ petition. State can't violate them through laws or executive decree. The Directive principles (DPs) on the other hand have been understood as those guidelines enshrined in the constitution of India which are fundamental in the governance of the country.

Initial tilt in favour of FRs

Thus, the very essence of emergence of fundamental rights and directive principles on stage has brought to the fore the need to balance them in harmonious way. There has been checkered history of constitutional amendments and interpretation by the Supreme Court through various pronouncements of it to achieve the much needed balance between FRs and DPs. In the formative years of the working of our Constitution as interpreted by the Supreme Court, Directive Principles were looked upon as merely directions to the State and it was held consistently that the Directive Principles did not confer any enforceable rights and their alleged breach does not invalidate a law nor does it entitle a citizen to complain of its violation by the State, as is the case with fundamental rights.

Interpretation of Part III (FRs) and Part IV (DPs) of the Constitution by the Supreme Court in number of cases has now crystallized the differences that exist between the Directive Principles of State Policy and the Fundamental Rights. The differences between the two are as follows:

(i) The Directive principles are not enforceable in the Courts and they do not create any justifiable rights in favour of individuals.

(ii) The Directives require to be implemented by Legislation, but, at the same time no existing Law or Legal Right can be violated under the colour of following a Directive.

(iii) The Courts can declare any law as void on the ground that it contravenes any of the Fundamental Rights.

(iv)The Courts are not competent to compel the Government to carry out any Directive or to make any law for that purpose.

(v) The Directives per se do not confer upon or take away any Legislative Power from the appropriate Legislature.

(vi) Although it is the duty of the State to implement the Directives, yet the State can do so subject to the limitation imposed by the Constitution itself i.e., Article 13 (2) prohibits the State from making any law which takes away or abridges the Fundamental Rights conferred by Part III and the Directive Principles therefore cannot override this categorical limitation.

Plain reading of the above elaborated differences urges one to draw an open inference that the Directive Principles are rather inferior to the Fundamental Rights. The tilt seems to be lopsided in favour of the FRs. This is so even when the profess purpose of DPs in Indian Constitution is establishment of a “Welfare State” as envisaged in the preamble to the Constitution. Welfare state essentially involves that state carries out redistributive justice to achieve the same. Attempt to carry out such justice in agrarian sector through land reforms was stuck early due to the fact that Right to Property was incorporated in the original constitution as a fundamental right. The courts use to regularly strike down land reform legislations enacted by various state governments as happened in Kameshwar vs. State of Bihar (1951) in which Patna High Court held Bihar Land Reforms Act as unconstitutional on the ground that it was in violation of fundamental right of property.

Emergence of protective shield of Ninth schedule

  
Such difficulties were sought to be overcome by inserting Article 31B to be read with ninth schedule in constitution by First Constitutional (Amendment) Act 1951, which states that without prejudice to the generality of the provisions contained in Article 31-A, 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 provisions is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue in force.

In other words, Article 31-B of the Constitution ensured that any law in the Ninth Schedule could not be challenged in courts and the government can rationalize its programme of redistributive justice by reforming land and agrarian laws. In other words laws under Ninth Schedule are beyond the purview of judicial review even though they violate fundamental rights enshrined under part III of the Constitution. In Shankari Prasad Singh Deo Vs. State of Bihar (1952), Kochunni Vs. State of Madras (1960) and Sajjan Singh Vs. State of Rajasthan (1965) the Supreme Court upheld the First Amendment to the constitution. Legislature utilized these provisions to get land reform legislature enacted and placing them under ninth schedule to defend them from judicial scrutiny.

Battle for Constitutional or Parliamentary supremacy 

Curtains on this bonhomie between legislature and Judiciary fall when in case of Golaknath vs. State of Punjab (1967) the Apex Court took stricter view and held that if an amendment abridged or took away a fundamental rights guaranteed by Part III of the Constitution, the amending act itself was void and ultra virus which effectively meant that Parliament has no power to amend or take away the fundamental rights enshrined under Part III of the Constitution. Parliament responded against Golak Nath case by enacting 24th amendment (1971) which added Art.13 (4), the effect of which was to take out of the purview of judicial scrutiny any amendment of the Constitution under Art.368 even if it is violative of FRs contained in part III. It also amended Art.368 (1) by adding the word “in exercise of its constituent powers”. The 24th amendment (1971) thus made an attempt to supersede Golaknath case putting the validity of constitutional amendment on the ground that it takes away or affects fundamental right beyond the pail of judicial scrutiny. Parliament thus sought to provide primacy to DPs through this constitutional amendment act. Art.31-C was also inserted by 25th amendment (1971) which provided that any law, which seeks to implement the directive in Art. 39 (b) or 39 (c) with a view to plan the socialistic distribution of wealth and the means of production was not to be void for any inconsistency with Art.14 or 19.   

These Acts were challenged in Kesavananda Bharti case (1973) before 13 judge's bench. The majority by 7:6 overruled the 24th amendment act. Validity of Art 13(4) was however upheld. In result, the fundamental rights could now be amended under Art.368 and the validity cannot be questioned on the ground that the act invades or encroaches fundamental rights. The Supreme Court, however, by  judicial innovation structured a 'Basic Structure Doctrine' and gave to itself power to review whether such an amendment would be ultra vires as it violates very basic structure of the Constitution. Supreme Court further elaborated that that judicial review is one of the essential feature of the Indian constitution, which cannot be taken away by amendment under Art.368 and further held that the immunity from judicial scrutiny of any declaration contained in any particular law that it is enacted to implement the directive in Art. 39(b) - (c) is unconstitutional. The 42nd amendment enacted by parliament during emergency tried to overreach the implication of Kesavananda Bharti case and in order to upheld the sovereignty of Parliament (as constituent body) in Clause (5) of Art.368 declared that “there shall be no limitation” on the constituent power of the Parliament to amend and such amendment, shall not be called in any Court on any ground (368(4)). It also enlarged the scope of Article 31(C) by including within its ambit any law which has been purportedly enacted to implement any of the directive principles elaborated in part IV and not merely in Article 39(b)-(c).  In Minerva Mills (1980) the Supreme Court by then armed with basic structure doctrine declared Clause (4) and (5) of Art.368 to be invalid on the ground that these clauses removed all limitations upon the power of the Parliament to amend the Constitution and to destroy the right of judicial review, which is “essential feature” or “basic structure” of the Constitution. It also nullified the extension of Article 39(c).

Harmonious construction of FRs and DPs

The attempts by parliament throughout this checkered period to assert its supremacy  in deciding the right balance between FRs and DPs was beautifully encountered by Supreme Court through the basic structure doctrine, which sought to reestablish constitutional supremacy to strike the harmonious balance between FRs and DPs. Court through this doctrine basically stated the proposition that amending power of parliament can't go the extent of effectively writing a new constitution.

Apex court also emphasized on the harmonious interpretation and construction of provisions of both FRs and DPs through its insightful observation as contained in Kesavananda Bharti case (1973). The court observed that, “If any distinction between the Fundamental Rights and the Directive Principles on the basis of a difference between ends or means were really to be attempted, it would be more proper, in my opinion to view Fundamental Rights as the ends of the endeavours of the Indian people for which the Directive Principles provided the guidelines”. Argument was further elaborated in Minerva Mill case when the apex court stated that, “The Indian Constitution is founded on the bed-rock of the balance between Parts III & 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 is an essential feature of the basic structure of the Constitution. The goals set out in Part IV have to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III & 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 basis structure of our Constitution". 

Concluding remarks

The present condition of state of balance between FRs and DPs can thus be summarized by stating that any law declared to be enacted for implementing Art. 39(b)-(c) is valid even if it is violative of Article 14 or 19. Historic judgment in IR Colheo case Vs State of Tamil Nadu and others (2007) which opened up all the acts put under schedule IX after 1973 for judicial scrutiny has also ramification on balance between FRs and DPs in the sense that the protective umbrella of schedule IX has withered away. But still in judging constitutionality of any act at present the courts had to keep in mind the evolved proposition that though Directive Principles cannot override Fundamental Rights in general, but in so far as determining the scope and ambit of Fundamental Rights, the Courts cannot entirely ignore the Directive Principles, but will have to apply the doctrine of harmonious construction so as to give effect to both Fundamental Rights and Directive Principles.      

By Saurabh Naruka