Quick Summary: Key Takeaways

• Fundamental Rights (Part III, Articles 12-35) are justiciable limits on the government; Directive Principles (Part IV, Articles 36-51) are non-justiciable positive instructions to the state.

• The Constitution guarantees six Fundamental Rights; the Right to Property was removed by the 44th Constitutional Amendment Act, 1978, and is now a legal right under Article 300A.

• Parliament can amend Fundamental Rights, but not the basic structure (Kesavananda Bharati v. State of Kerala, 1973; Minerva Mills v. Union of India, 1980).

• DPSPs fall under four ideals: Socialistic, Gandhian, Western Liberal and Ideals of Freedom Struggle.

• The Supreme Court moved from superiority of Fundamental Rights to harmonious construction and finally to complementarity of Part III and Part IV.

• Together they form the 'conscience of the Constitution' (Justice Chandrachud).

Introduction: Fundamental Rights and DPSP

• Fundamental rights are fundamental in the governance of the country; the detailed scheme shows the makers' desire to give Indians the basic liberty of a free and happy life.

• They establish the spirit of constitutionalism and act as a check on democracy, preventing it from turning into a tyranny of the majority.

• They are a social contract strengthening constitutionalism and protecting individual autonomy.

• Derived from the American 'Bill of Rights,' a bulwark against the tyranny of the state.

• Part III deals with Fundamental Rights; they are basic human freedoms needed for individual development, applied irrespective of caste, religion, place of birth, sex, colour, etc. (Reddy 1980).

• Directive Principles of State Policy are in Part IV, borrowed from the Constitution of Ireland; they set out aims and objectives for states and are a means to attain substantive socio-economic realities.

• Together, Part III and Part IV contain the rights, liberties, and securities of people and groups and the structural means to attain these ideals.

Fundamental Rights (Part III)

Why Are They 'Fundamental'?

• Granville Austin (The Indian Constitution: Cornerstone of a Nation, 1966) analyses the Constitution as a social and revolutionary document; Part III best shows this philosophy.

• They are a guarantee against encroachment by the government of the day, so they limit the powers of both the legislature and executive.

• Two reasons they are fundamental: (1) they are guarantees to individuals and groups in the Constitution; (2) they are justiciable, i.e. enforceable through courts of law.

• In case of violation, the individual can directly approach the Supreme Court of India or the High Court of the state.

• Any law by the Centre or the state that restricts Fundamental Rights can be judicially reviewed and declared null and void.

Six Fundamental Rights

• Right to Equality: Articles 14-18

• Right to Freedom: Articles 19-22

• Right against Exploitation: Articles 23-24

• Right to Freedom of Religion: Articles 25-28

• Cultural and Educational Rights: Articles 29-30

• Right to Constitutional Remedies: Article 32

Table 1: Fundamental Rights at a glance

Right to Property: What Changed?

• The original Constitution had seven Fundamental Rights, including the Right to Property.

• It was seen as a hindrance to Land Reforms and equitable distribution of wealth, so it was repealed by the 44th Constitutional Amendment Act, 1978.

• Now it is a legal right under Article 300A, not a fundamental right.

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Fundamental Rights and Human Rights

• Human Rights are the minimum necessary conditions for dignified living (social, political and cultural rights).

• Fundamental Rights give security in these aspects, so they are fundamental Human Rights, but not all Human Rights are Fundamental Rights, because extensive action for protection is restricted to Fundamental Rights alone.

• They are hailed as the Magna Carta of the Indian Constitution: they establish individual liberty and stand against coercion by individuals or the state.

Genesis of Fundamental Rights: Timeline

• Inspiration: England's Bill of Rights (1689), the United States (1791) and the French Declaration of the Rights of Man (1789).

• 1925: the Commonwealth of India Bill, drafted by Annie Besant, demanded seven fundamental rights (free conscience, free expression, freedom of assembly, non-discrimination on grounds of religion, caste, sex or place of origin etc.).

• 1928: the Nehru Commission, headed by Motilal Nehru, called for Dominion status, elections on adult suffrage and guarantees of certain rights that limit government power.

• 1931: the Congress adopted a resolution at the Karachi Session committing to defend civil rights, abolish untouchability and serfdom and ensure a minimum wage.

• 1944-45: the Sapru Committee, a non-partisan committee of intellectuals chaired by Tej Bahadur Sapru, supported Fundamental Rights.

• In the Constituent Assembly, the committee on Fundamental Rights was headed by Sardar Patel and the sub-committee for minority rights by Acharya Kripalani (Ray, 2003).

Nature of Fundamental Rights

• They are not a mere imposition of practices from another country; they were framed after considering India's socio-political and socio-economic circumstances.

• Not absolute: reasonable restrictions can be imposed under required conditions.

• Justiciable: Article 32 lets every citizen move the highest court to enforce them.

• Some rights are for citizens alone: equality of opportunity in public employment, protection from discrimination, freedom of speech, expression, association, movement, residence and profession, and cultural and educational rights of minorities.

• Amendable, but not the basic structure: after tussles between the legislature and judiciary, the Supreme Court held that Parliament can amend and abridge Fundamental Rights but not change the basic structure.

Amendability of Fundamental Rights: Case Chronology

• Shankari Prasad v. Union of India (AIR 1952 1 SCR 89): challenged the 1st Amendment; held that an amendment is valid even if it abridges or takes away Fundamental Rights.

• Sajjan Singh v. State of Rajasthan ((1965) SC 845): challenged the 17th Amendment; a similar decision.

• Golaknath v. State of Punjab (AIR 1967 SC 1643): challenged the Constitution (17th Amendment) Act, 1964 (inserted certain State Acts in the Ninth Schedule). The Court overruled Shankari Prasad and Sajjan Singh: Parliament had no power to amend Part III to take away or abridge Fundamental Rights. Eleven judges, ratio 6:5; the Chief Justice applied the doctrine of Prospective Overruling, so the 1st, 4th and 17th amendments stay valid.

• 24th Amendment: to remove the difficulties created by Golaknath; added clause (4) to Article 13 (nothing in Article 13 applies to amendments under Article 368), changed the heading of Article 368 and inserted a new sub-section (1); it restored Parliament's amending power.

• Kesavananda Bharati v. State of Kerala (1973) (AIR 1973 SC 1461): challenged the 24th Amendment and the Kerala Reforms Act, 1963 (placed in the Ninth Schedule by the 29th Amendment). A special bench of 13 judges overruled Golaknath; held that under Article 368 Parliament cannot amend the basic structure or framework of the Constitution.

• 42nd Amendment Act, 1976 (Indira Gandhi government): added clause (4) (no constitutional amendment can be questioned in any court) and clause (5) (no limitation on Parliament's constituent power) to Article 368.

• Minerva Mills v. Union of India (1980) (AIR 1980 SC 1789): by 4 to 1, the Court struck down clauses (4) and (5) of Article 368, as they destroyed the essential feature of the basic structure. The Constitution, not Parliament, is supreme; this ended the long controversy between the Courts and the Executive.

Table 3: Amendability cases

Present Position on Amending Fundamental Rights

• (1) Fundamental Rights may be repealed or curtailed by a Constitutional Amendment Act under the procedure in Article 368.

• (2) The amendment of a particular right may be annulled if the Supreme Court holds that the right (or part of it) constitutes a 'basic' feature.

• (3) Until a right is taken away by amendment, it limits the legislative power of Parliament and state legislatures, and a law in contravention is void, unless protected by the Constitution itself (e.g. Article 31A, 9th Schedule, read with Article 31B).

• The basic structure doctrine applies only to the constitutionality of amendments, not to ordinary Acts of Parliament, which must conform to the entire Constitution.

Rights Under Fundamental Rights, Explained

Right to Equality (Articles 14-18)

• Covers equality comprehensively, using universally accepted standards of an equal society.

• Article 14: equality before law (no special privilege) and equal protection of law (equal treatment in similar circumstances; differences allowed in different circumstances, e.g. favourable provisions for women).

• Article 15: prevents discrimination on grounds of religion, caste, sex or place of birth.

• Article 16: equality of opportunity in public appointment.

• Article 17: abolishes untouchability. Article 18: abolishes all titles (Basu 2005).

Right to Freedom (Articles 19-22)

• Article 19(1): freedom of speech and expression, to assemble peacefully, to form unions or associations, to move freely throughout India, and to practise any trade or profession.

• These are not absolute; clauses 2-6 of Article 19 define reasonable restrictions (decency, morality, public order, friendly relations with foreign countries, unity and integrity of India); the judiciary can judge their reasonableness.

• Article 20: no retrospective criminal law; no one can be forced to give evidence against himself.

• Article 21: Right to life, the most holistically interpreted article; protected by the writ of habeas corpus under Article 32 (illegal imprisonment).

• Article 21A: Right to education, by the 86th Constitutional Amendment, 2002: free and compulsory education for ages 6-14.

• Article 22: safeguards against arbitrary arrest and detention.

Right against Exploitation (Articles 23-24)

• Article 23: prohibits traffic in human beings and forced labour.

• Article 24: prevents child labour in hazardous circumstances like mines or factories.

Right to Freedom of Religion (Articles 25-28)

• Article 25: freedom of conscience, and practice and propagation of religion.

• Article 26: freedom to manage religious affairs, establish charities and acquire property for religious purposes.

• Article 27: no one can be compelled to pay tax for promoting any religion.

• Article 28: freedom not to attend religious instruction in certain educational institutions.

Cultural and Educational Rights (Articles 29-30)

• Article 29: protection of language, script and culture of minorities; bars admission denial on grounds of religion, race, sex, language in state-funded institutions.

• Article 30: minorities can establish and administer educational institutions to preserve their script and culture.

Right to Constitutional Remedies (Article 32)

• The most important Fundamental Right: citizens can move the Supreme Court to enforce Part III rights; it gives Fundamental Rights their pride of place.

Directive Principles of State Policy (Part IV)

• Articles 36-51 lay down a comprehensive programme for social and economic order.

• Ambedkar thought future governments would be judged on their success or failure in implementing the directives.

• No legal sanction behind them (unlike Fundamental Rights), yet Article 37 says they are fundamental in the governance of the country and the state is duty-bound to apply them in law-making.

• Derived from the Irish Constitution; unlike Fundamental Rights, they are positive obligations on the state (Devidas 1975).

Classification of DPSP: Four Ideals

• SOCIALISTIC IDEALS (Articles 38, 39, 41, 42, 43, 43A, 43B, 45):

• Article 38: minimise inequalities in income and eliminate inequalities in status.

• Article 39: adequate means of livelihood for men and women. Article 41: Right to work. Article 42: just and humane conditions of work, including maternity relief.

• Article 43: decent living wage and cottage industries. Article 43A: workers' participation in management. Article 43B (inserted by the 97th Amendment): professional management of cooperative societies. Article 45: early childhood care and education below 6 years (Basu 2005).

• GANDHIAN IDEALS (Articles 40, 46, 47, 48):

• Article 40: village panchayats, a Gandhian dream realised by the 73rd and 74th Constitutional Amendment (1993), ushering in Panchayati Raj.

• Article 46: educational and economic interests of scheduled castes, scheduled tribes and weaker sections. Article 47: nutrition and public health (the idea of prohibition flows from it).

• Article 48: agriculture and animal husbandry; prohibiting slaughter of cows and calves and other milch cattle.

• WESTERN LIBERALISM (Articles 39A, 44, 50):

• Article 39A: free legal aid. Article 44: uniform civil code for unity and integrity. Article 50: separation of judiciary from the executive in public services.

• IDEALS OF FREEDOM STRUGGLE (Articles 48A, 49, 51):

• Article 48A: safeguard forests, environment and wildlife. Article 49: protect monuments and places and objects of national importance. Article 51: promote international peace and security.

Table 4: DPSP classification

Fundamental Rights vs Directive Principles: Key Differences

Table 2: Fundamental Rights vs DPSP

• Equal in importance but different in degree of importance assigned by the Constitution.

• NATURE: Fundamental Rights are a limitation on state action; DPSP are positive instruments of instruction to the state.

• ORIENTATION: Fundamental Rights aim at rule of law and political democracy (equality, liberty, religious freedom, cultural rights), reflecting liberal principles; DPSP are mainly Socialist and Gandhian, aiming at social welfare and economic democracy.

• ENFORCEABILITY: Fundamental Rights are justiciable; DPSP are non-justiciable, yet described as moral precepts for balanced socio-economic development and an egalitarian social order.

• BENEFICIARY: Fundamental Rights secure the welfare of the individual; DPSP promote the welfare of the community.

Fundamental Rights and DPSP Together: Philosophy of the Constitution

• Justice Bhagwati: Fundamental Rights broadly represent civil and political rights; DPSP embody social and economic rights; together they form the broad spectrum of human rights.

• They carry out the Preamble's objective: an egalitarian social order with political, social and economic justice and dignity for the mainstream and the vulnerable and marginalised.

• Justice Chandrachud: together they are the 'conscience of the constitution'.

• Granville Austin (1966): both developed as a common demand, products of the national and social revolutions; before the Constitution was framed there was no demarcation between them.

• Together they contain the philosophy of the social service state; the framers wanted economic improvement achieved in a democratic way by the rule of law.

• Twofold strategy: Part III sanctifies Liberty and Equality through justiciable freedoms; Part IV lays down the ideal of Justice and enjoins the state to turn it into reality by legislation.

• Social and economic rights are the foundation of the building; civil and political rights provide the elevation.

Constitutional Relationship: Four Phases

• The debate: superiority or complementarity of Part III and Part IV, linked to parliamentary sovereignty vs judicial supremacy; it hinges on justiciability vs non-justiciability.

• Phase 1: Superiority of Fundamental Rights. State of Madras v. Srimathi Champakam Dorairajan (1951) (AIR 1951 SC 226): DPSPs are unenforceable under Article 37, so they cannot override Part III, enforceable under Article 32; in conflict, Part III prevails.

• Phase 2: Directives as reasonable restrictions. DPSP seen as an index of public purpose and reasonableness of restrictions. Bombay v. Balsara: liquor ban held a reasonable restriction under Article 19(6). State of Bihar v. Kameshwar Singh (AIR 1951 Pat 246): Article 39(b); zamindari abolition laws passed for a public purpose under Article 31(2).

• Phase 3: Harmonious construction. Mohammed Hanif Qureshi v. State of Bihar (1958 AIR 731, 1959 SCR 629): cow slaughter ban challenged under Article 19(1)(g); DPSP cannot override Article 13(2), but the state must implement DPSP without abridging Fundamental Rights; the Court introduced the doctrine of harmonious construction.

• 25th Amendment Act, 1971 inserted Article 31C (laws giving effect to Article 39(b) and 39(c) not void for violating Articles 14 or 19); the first part was upheld and the second part (barring judicial scrutiny) struck down in Kesavananda Bharati. After 1972, DPSP gained primacy: the Court stressed there is no disharmony, as both aim at a social revolution and a welfare state.

• Phase 4: Complementary and supplementary. Minerva Mills (4:1): Article 31C as amended by the 42nd Amendment struck down for destroying the basic structure; the Constitution rests on the balance between Parts III and IV; unamended Article 31C is valid (Sharan 1978).

Conclusion

• Fundamental Rights and DPSP are complementary, not rivals; together they show commitment to social revolution.

• The makers studied global practices and designed a basket of rights to lead India to a modern and egalitarian society.

• Both parts enumerate the obligation of the state and are the bedrock of nation-building.

• As India's financial clout grows, more directives will find their way into legislation; both strengthen the spirit of constitutionalism.

FAQs: Fundamental Rights and DPSP (Exam Focus)

References (as listed in the lesson)

• SOL Study Material

• Reddy, S. Sundara Rami, 'Fundamentalness of Fundamental Rights and Directive Principles in the Indian Constitution,' Journal of the Indian Law Institute, Vol. 22, No. 3 (July-September 1980), pp. 399-407.

• Austin, Granville, The Indian Constitution: Cornerstone of a Nation, Oxford University Press, Delhi, 1966, p. 50.

• Ray, Aswini K., 'Human Rights Movement in India: A Historical Perspective,' Economic and Political Weekly, Vol. 38, No. 32 (Aug. 9-15, 2003), pp. 3409-3412.

• Sharan, P., 'Constitution of India and Judicial Review,' The Indian Journal of Political Science, Vol. 39, No. 4 (Oct-Dec. 1978), pp. 526-537.

• Basu, D.D., Introduction to the Constitution of India, 19th Reprint Edition, Wadhwa, Nagpur, 2005, pp. 102-143.

• Devidas, T., 'Directive Principles: Sentiment or Sense?', Journal of the Indian Law Institute, Vol. 17, No. 3 (July-September 1975), pp. 478-480.

• Cases: Shankari Prasad v. Union of India (AIR 1952 1 SCR 89); Sajjan Singh v. State of Rajasthan ((1965) SC 845); Golaknath v. State of Punjab (AIR 1967 SC 1643); Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461); Minerva Mills v. Union of India (AIR 1980 SC 1789); State of Madras v. Srimathi Champakam Dorairajan (AIR 1951 SC 226); Kameshwar Singh v. Province of Bihar (AIR 1951 Pat 246); Mohd. Hanif Quareshi v. State of Bihar (1958 AIR 731, 1959 SCR 629).