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FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES[1]

QUESTION BANK.

1. 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 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[2]:-

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

1. Right to equality[3] [Art. 14 to 18].
2. Right to freedom[4] [Art. 19 to 21].
3. Safeguards against arbitrary arrest[5] [Art. 22].
4. Right against exploitation[6] [Art. 23 and 24].
5. Freedom of Religion[7] [Art. 25 to 28].
6. Cultural and educational rights[8] [Art. 29 and 30].
7. Saving of certain laws (relating to the right of property) [Art. 31 A, 31 B, and 31 C].
8. Right to constitutional remedies[9] [Art. 32 to 35].

B.       DIRECTIVE PRINCIPLES OF STATE POLICY[10]:-

I.        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[11].

                    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 meaning to independent India.

II.      JUSTIFIABILITY (ENFORCEABILITY) OF DIRECTIVE PRINCIPLES[12] (ART. 37):-

                    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[13] (ART 38 TO 51):-

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

A.       Social and economic charter[14]:-

1.       Social order based on justice[15] (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[16] (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.

B.       Social Security charter[17]:-

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

1. Participation of workers in the management of Industries (Art. 43A).
2. Right to work, education and public assistance in certain cases of unemployment, sickness, old age, etc. (Art. 41).
3. Just and humane conditions of work (Art. 42).
4. Living wages for workers (Art. 43).
5. Free and compulsory education for children (Art. 45).
6. To raise the standard of living and improvement of health (Art. 47).
7. Promotion of educational and economic interest of weaker sections (Art. 46) and
8. Equal justice and free legal aid to economically backward classes. (Art. 39 A).

C]      Community welfare charter[18]:-

1. Uniform Civil Code[19] (Art. 44):-

                    It directs to cut across religion, caste and tribe and to build up a homogenous 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[20] on modern and scientific lines. (Art. 48 (A).
3. Protection and improvement of Forests and Wildlife (Art. 48 A).
4. Protection of monuments[21] and places and objects of national importance.

           (Art. 49).

5. Separation of the judiciary from the executive[22] (Art. 50).
6. Promotion of international peace and security[23] (Art. 51) and,
7. The organisation of village panchayat and endow them with necessary powers.
   (Art. 40).

IV.     RELATION BETWEEN FUNDAMENTAL RIGHTS AND            DIRECTIVE PRINCIPLES OF STATE POLICY[24]:-

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.
3. Fundamental rights are individual rights, while Directive Principles are social rights.
4. Fundamental rights are justifiable, i.e. enforceable under Art. 32, whereas Directive Principles are not enforceable.

 Which will prevail[25]:-

                    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)[26]:-

In State of Madras v. Champakam Dorairajan[27].

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 Principles of State Policy are not enforceable like fundamental rights.[28].

 2.      Directive Principles will prevail (Second view)[29]:-

In Keshavananda Bharati v. Kerala[30].

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 hand[31].

3.       The principle of harmonious construction[32]:-

                    Nowadays, the rule courts follow in interpreting the conflict between fundamental rights and Directive Principles is of harmonious construction.

In Reunion Kerala Education Bill[33].

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[34]:-

                    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.

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NOTE.

UNIFORM CIVIL CODE[35] (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[36], 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 India[37].

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 sense will be practised.[38].

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[1]  मुलभूत अधिकार व मार्गदर्षक तत्त्वे

[2] राज्यघटनेव्दारे दिलेले मुलभूत अधिकार

3  समतेचा अधिकार

4  स्वातंत्र्याचा अधिकार

5 जुलमी अटकेपासून संरक्षणाचा अधिकार

6 पिळवणूकीपासून संरक्षण

[5] जुलमी अटकेपासून संरक्षणाचा अधिकार

[6] पिळवणूकीपासून संरक्षण

[7] धर्मस्वातंत्र्याचा अधिकार

[8] सांस्कृतिक आणि शैक्षणिक अधिकार

[9] घटनात्मक उपाययोजनांचा अधिकार

[10] राज्याच्या धोरणाची मार्गदर्षक तत्वे

[11] प्रस्तावनेत सांगितल्याप्रमाणे खÚया अर्थाने नागरिकांचे कल्याण, सामाजिक व आर्थिक लोकषाही अस्तित्वात आणणेसाठी राज्यघटनेत सरकारला मार्गदर्षन करताना/सरकारचा उद्देष ठरवितानाही तत्वे दिलेली आहेत. मार्गदर्षक तत्वाप्रमाणे सांगितलेले उद्देष साध्य करण्याची जबाबदारी सरकारवर सोपविलेली आहे.

[12] मार्गदर्शक तत्वांची अंमलबजावणी

[13] मार्गदर्शक तत्वांचे वर्गीकरण

[14] समाजिक आणि आर्थिक सनद

[15] न्यायावर आधारित समाज रचना

[16] आर्थिक न्याय प्रस्थापित करण्यासाठी राज्याने पालन करावयाची धोरणाची तत्वे

[17] सामाजिक सुरक्षितता सनद

[18] समाज कल्याण सनद

[19] समान नागरी कायदा

[20] पशुधन संवर्धन

[21] स्मारक

[22]  न्याय पालिकेचे कार्यकारी पासून अलगीकरण

[23] आंतरराष्ट्रीय शांतता व सुरक्षितता

[24] मुलभूत अधिकार आणि मार्गदर्षक तत्वे संबंध

[25]  कशाला महत्त्व

[26] मुलभूत अधिकाराला महत्त्व /प्राथमिक दृश्टीकोन

[27] AIR 1951 SC 228

[28] In 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.

[29] मार्गदर्षक तत्वांना महत्त्व/दुसरा दृश्टीकोन

[30] AIR 1973 SC 1461.

[31] Mohd. 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.

[32] एकोपाग/सुसंवादाचे साधण्याचे तत्व (सध्याचा दृश्टीकोन)

[33] AIR 1957 SC 956.

[34] मार्गदर्षक तत्वांचे मुलभूत अधिकारांत रुपांतर

[35] समान नागरी कायदा

[36] वंश

[37] (1995) 3 SCC 635.

[38] In 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.