“Law Master’s”

“Fundamental rights and directive principles”

Prof. S. D. Bhosale 93

(..15..)

FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES

QUESTION BANK.

Q. 1. Write a detailed note on Directive Principles of State Policy.

Q.2. Discuss the relationship between the fundamental rights and the directive principles

of state policy.

Q.3. “The Directive Principles of State policy shall not be enforceable by any court, but

these principles are nevertheless fundamental in the governance of the country and

it shall be the duty of the state to apply them in making law”. Discuss.

Q.4. What are the principles to be followed by the State under the Directive Principles of

State Policy?

Q.5. “Directive Principles of State Policy is not only fundamental in the governance of

the country but also a charter of social reformation”. Comment.

Q.6. Discuss the inter-relationship between Fundamental Rights and Directive Principles

of State Policy. Refer relevant cases.

Q.7. “The directive principles of state policy” set forth humanitarian socialist precepts

that were and are, the aims of the Indian Social Revolution”. Evaluate.

Q.8. Explain the importance of Directive Principles of State policy and how far State has

implemented them?

SHORT NOTE.

1.

Uniform Civil Code.A.

FUNDAMENTAL RIGHTS:-

I)

INTRODUCTION:-

Fundamental rights are of immense value. These rights are inalienable rights

of the individual. These are the rights without which a human being cannot survive in a

“Law Master’s”

“Fundamental rights and directive principles”

Prof. S. D. Bhosale 94

dignified manner in a civilised society. These fundamental rights impose limitations upon

the State's action. They are available to ordinary persons against the arbitrary action of the

State. These rights are also called ‘negative rights’ because they impose a negative duty

upon the State not to interfere in the individual's fundamental rights. [The Constitution of

the USA recognised fundamental rights a long time ago. The rights are called the ‘Bill of

Rights’ in the American Constitution. The United Nations charter also provides for the

recognition of fundamental freedoms. Similar provisions as to fundamental rights are found

in the British Constitution.]

II)

FUNDAMENTAL

RIGHTS

GUARANTEED

BY

THE

INDIAN

CONSTITUTION:-

Part III of the Indian Constitution from Art. 12 to 35 provides different

Fundamental rights. Viz.

1.

2.

3.

4.

5.

6.

7.

8.

B.

I.

Right to equality [Art. 14 to 18].

Right to freedom [Art. 19 to 21].

Safeguards against arbitrary arrest [Art. 22].

Right against exploitation [Art. 23 and 24].

Freedom of Religion [Art. 25 to 28].

Cultural and educational rights [Art. 29 and 30].

Saving of certain laws (relating to the right of property) [Art. 31 A, 31 B, and 31 C].

Right to constitutional remedies [Art. 32 to 35].

DIRECTIVE PRINCIPLES OF STATE POLICY:-

INTRODUCTION:-

The Directive Principles of State Policy are contained in Part IV from Art.

36 to 51 of the Indian Constitution. They set out the aims and objectives to be achieved by

the State in the country's governance. This part of the Directive Principles of State Policy

is borrowed from the Irish Constitution.

Directive Principles work as a guideline and set out the goals and aims to be

achieved by the State in its work. They lay down certain economic and social policies to

be followed by the various Governments in India. In addition, directive principles impose

certain obligations on the State to take positive action in certain directions to promote the

welfare of the people and achieve social and economic democracy as contemplated in

the preamble of the Constitution.

In other words, our Constitution framers (since many of them were freedom

fighters) released India from the shackling of Britishers. They, therefore, laid the

responsibility on the shoulders of new generations to lead India towards a socially and

economically strong and welfare state in the guidelines of Directive Principles and to give

“Law Master’s”

meaning to independent India.

II. JUSTIFIABILITY (ENFORCEABILITY) OF DIRECTIVE PRINCIPLES

(ART. 37):-

“Fundamental rights and directive principles”

Prof. S. D. Bhosale 95

Like fundamental rights (under Art. 32 and 226), Directive Principles are not

enforceable by the courts of law (Art. 37). These principles are merely rules of a positive

obligation imposed on the State. Nevertheless, the Constitution declares these principles

‘fundamental’ in the country's governance. Accordingly, the State has been obliged to

apply them in making laws and achieving the objectives mentioned therein.

Even though the directive principles are not enforceable, many of them are

given effect by legislatures and courts. For example, abolition of the Zamindari system,

establishment of village Panchayats, equal pay for equal work, protection of children from

exploitation, abolition of child labour, free legal aid and speedy trial of prisoners.

III.

CLASSIFICATION OF DIRECTIVE PRINCIPLES (ART 38 TO 51):-

The Directive Principles of State Policy may be classified as follows-

Social and economic charter:-

A.

1.

Social order based on justice (Art. 38):-

It provides that the State shall strive (make great efforts) 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 form in all national life.

2.

Principles of policy to be followed by the State for securing economic justice

(Art. 39):-

It requires the State to follow seven principles of policy for securing

‘economic justice,’ such as equal pay for equal work, men and women getting

adequate means of livelihood, and the distribution of ownership and control of

material resources of the community for the common good.

Social Security charter:-

B.

To achieve social security, the State shall make provisions for-

Participation of workers in the management of Industries (Art. 43A).

Right to work, education and public assistance in certain cases of unemployment,

sickness, old age, etc. (Art. 41).

1.

2.

3.

4.

5.

6.

7.

8.

Just and humane conditions of work (Art. 42).

Living wages for workers (Art. 43).

Free and compulsory education for children (Art. 45).

To raise the standard of living and improvement of health (Art. 47).

Promotion of educational and economic interest of weaker sections (Art. 46) and

Equal justice and free legal aid to economically backward classes. (Art. 39 A).

“Law Master’s”

“Fundamental rights and directive principles”

Community welfare charter:-

Uniform Civil Code (Art. 44):-

It directs to cut across religion, caste and tribe and to build up a homogenous

Prof. S. D. Bhosale 96

C]

1.

nation in which “the state shall endeavour to secure for the citizens a uniform civil code

throughout the territory of India”. (Discussed in note).

2.

The organisation of agriculture and animal husbandry on modern and scientific

lines. (Art. 48 (A).

3.

4.

Protection and improvement of Forests and Wildlife (Art. 48 A).

Protection of monuments and places and objects of national importance.

(Art. 49).

5.

6.

7.

Separation of the judiciary from the executive (Art. 50).

Promotion of international peace and security (Art. 51) and,

The organisation of village panchayat and endow them with necessary powers.

(Art. 40).

IV.

RELATION

BETWEEN

FUNDAMENTAL

RIGHTS

AND

DIRECTIVE PRINCIPLES OF STATE POLICY:-

1.

Part III of the Constitution, which contains Art. 12 to 35, deals with

fundamental rights, while Part IV of the Constitution, which contains Art. 36

to 51, deals with Directive Principles of State Policy.

2.

Fundamental rights are available to individuals, and they impose negative

obligations on State not to encroach on individual liberty. Whereas Directive

Principles of State Policy are positive rights available to society which impose

a positive obligation on the State to do something for society.

Fundamental rights are individual rights, while Directive Principles are social

rights.

3.

4.

Fundamental rights are justifiable, i.e. enforceable under Art. 32, whereas

Directive Principles are not enforceable.

Which will prevail:-

When a conflict occurs between fundamental rights and Directive Principles,

the question arises as to which one will prevail over the other. The following cases provide

the answer.

1.

Fundamental rights will prevail (primary view):-

In State of Madras v. Champakam Dorairajan¹.

Supreme Court held that in case of any conflict between fundamental rights and Directive

Principles of State Policy, the fundamental rights would prevail because Directive

¹AIR 1951 SC 228

“Law Master’s”

“Fundamental rights and directive principles”

Prof. S. D. Bhosale 97

Principles of State Policy are not enforceable like fundamental rights.².

2.

Directive Principles will prevail (Second view):-

In Keshavananda Bharati v. Kerala³.

Supreme Court held that the Parliament is empowered to amend fundamental rights to give

effect to Directive Principles of State Policy. This is because directive Principles prescribe

the goals to be achieved, and the fundamental rights lay down how that goal will be

achieved. Therefore, Directive Principles will get the upper hand⁴.

3.

The principle of harmonious construction:-

Nowadays, the rule courts follow in interpreting the conflict between

fundamental rights and Directive Principles is of harmonious construction.

In Reunion Kerala Education Bill⁵.

The Supreme Court held that though the Directive Principles cannot override fundamental

rights, in determining the scope and ambit of fundamental rights, the court may not entirely

ignore Directive Principles and should attempt to give effect to both as much as possible.

V.

DIRECTIVE PRINCIPLES GIVEN STATUS OF FUNDAMENTAL

RIGHTS:-

Even though the directive principles are not enforceable, many have been

given effect by legislatures and courts. For example, the abolition of the Zamindari system,

establishment of village Panchayats, equal pay for equal work, protection of children from

exploitation, abolition of child labour, free legal aid and speedy trial of prisoners, and free

and compulsory education for children.

*****

NOTE.

UNIFORM CIVIL CODE (Art. 44).

Uniform Civil Code and its need:-

Laws in their applicability may be general (the law of the land) or personal.

General Law applies to all persons in the country irrespective of their caste, creed,

²In Kameshwar Singh v. State of Bihar. (AIR 1962 SC 1166).

In this case the Zamindari Abolition Act was Held to be void on the ground that it violated fundamental rights

guaranteed under Part III of the Constitution.

³AIR 1973 SC 1461.

⁴Mohd. Hanif Quareshi v. State of Bihar, (AIR 1958 SC 731).

Facts- The petitioner claimed that the sacrifice of cows on the occasion of Bakri-id was an essential part of his religion

and therefore the State law forbidding the slaughter of cows was violative of his right to practice religion.

Held- The court rejected this argument and Held that the sacrifice of cow on the Bakri- id day was not an essential

part of Mohammedan religion and hence could be prohibited by state under cl. (2) (a) of Art. 25.

⁵AIR 1957 SC 956.

“Law Master’s”

“Fundamental rights and directive principles”

Prof. S. D. Bhosale 98

religion, etc., e.g. Indian Penal Code, Contract Act, Evidence Act, Consumer

Protection Act, etc. These Acts either prohibit or allow particular behaviour patterns

in a general sphere like crime, contract, taxation, education etc. These laws,

therefore, are secular in their application. In contrast, personal laws apply to a

particular class of persons professing that particular religion, e.g. Mohammedan Law

applies to Muslims, Hindu Law applies to Hindus, Christian Law applies to

Christians, Parsi Law applies to Parsis, etc. Moreover, these personal laws are

specifically applicable to those persons in the matters of marriage, maintenance,

guardianship, adoption, succession and custom, religion, etc. Personal Laws,

therefore, are more religious than secular.

These personal laws sometimes differ greatly from each other. In such

circumstances, people are tempted to convert to another religion to benefit from that

religion's personal laws. The following is an example.

In Sarla Mudgal V. Union of India⁶.

Facts- A Hindu man, having married under Hindu Law, converted to Islam without

dissolving his marriage. He converted to get the benefit of the second marriage provided

under Muslim law (because a Hindu cannot marry a second marriage when his first spouse

is alive, the marriage is not dissolved). He accordingly performed a second marriage as a

Muslim. The question arose before the court as to the status of the second marriage.

Supreme Court held - that the second marriage is illegal and the husband can be

prosecuted for bigamy (performance of marriage by either spouse when the other is alive,

and the former marriage is in existence) under S. 494 of the IPC.

Similar problems came in cases of maintenance to Muslim women (Shahabano’s Case),

rights of a widow, children, marriage, etc.

Thus, from the above cases, it is crystal clear that conversion for personal

benefits creates a number of problems. Such Conversations are not compatible with the

idea of secularism. Indian Constitution no doubt vowed the principle of secularism, but the

secularism they mean differs from this concept. They wanted secularism in the true sense.

They directed to relax religious diversity and bring all persons to par with each other as

brothers. Therefore, Art. 44 of the Indian Constitution directs the State (i.e. Indian

Government) to ‘secure for the citizens a uniform Civil Code throughout the territory of

India’. It is because the diversity in personal laws will not remain, and the laws will apply

to all uniformly. So, the conversions will automatically stop, and secularism in its true

⁶(1995) 3 SCC 635.

“Law Master’s”

“Fundamental rights and directive principles”

Prof. S. D. Bhosale 99

sense will be practised.⁷.

*****

⁷In Pragati Varghese v. Cyril George Varghese (AIR 1997 Bom. 349).

Bombay High Court struck down S. 10 of the Indian Divorce Act, under which a Christian wife (but not any other

wife)had to prove adultery along with cruelty or desertion while seeking a divorce on the ground that it violates the

fundamental right of a Christian woman to live with human dignity under Art. 21 of the Constitution.

In Noor Saba Khatoon v. Mohd. Quasim (AIR 1997 SC 3280).

Supreme Court Held- that a divorced Muslim woman is entitled to claim maintenance for her children till they become

major.

In Danial Latif v. Union of India. (2001). Supreme Court upheld the constitutional validity of the Muslim Women

(Protection of Rights on Divorce) Act, 1986 and Held that a Muslim divorced woman has right to maintenance even

after iddat period under the 1986 Act.