Fundamental Rights, DPSPs, and Fundamental Duties

Fundamental Rights, DPSPs and Fundamental Duties

Fundamental Rights

The Constitution offers all citizens, individually and collectively, some basic freedoms. These are guaranteed in the Constitution in the form of six broad categories of Fundamental Rights, which are justiciable. Article 12 to 35 contained in Part III of the Constitution deal with Fundamental Rights. These are:

1. Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment.
2. Right to freedom of speech and expression, assembly, association or union, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality).
3. Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings.
4. Right to freedom of conscience and free profession, practice, and propagation of religion.
5. Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice; and
6. Right to constitutional remedies for enforcement of Fundamental Rights.

Features of Fundamental Rights

• Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners (except enemy) or legal persons like corporations or companies. Rights available only to the citizens of India are:
  • Right against discrimination on grounds of religion, race, caste, sex or place of birth(Article 15).
  • Right to equality of opportunity in the matter of public employment(Article 16).
  • Right to freedom of speech and expression, assembly, association, movement, residence and profession(Article 19).
  • Cultural and educational rights(Articles 29 and 30).
• They are not absolute but qualified; state can impose reasonable restrictions on them.
• Some of them are negative in character while some are positive.
• They are justiciable, allowing persons to move the courts for their enforcement, if and when they are violated.
• They are not sacrosanct or permanent, can be amended.
• Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament and not by state legislatures so that uniformity throughout the country is maintained (Article 35).

Rule of Law

The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people but by the law. The Constitution of India intended for India to be a country governed by the rule of law. It provides that the constitution shall be the supreme power in the land and the legislative and the executive derive their authority from the constitution.

The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic; it has since been championed by several medieval thinkers in Europe such as Hobbs, Locke, and Rousseau through the social contract theory. Indian philosophers such as Chanakya have also espoused the rule of law theory in their own way, by maintaining that the King should be governed by the word of law.

The formal origin of the word is attributed to Sir. Edward Coke, and is derived from French phase ‘la principe de legalite’ which means the principle of legality. The firm basis for the Rule of Law theory was expounded by A. V. Dicey and his theory on the rule of law remains the most popular.

Dicey’s theory has three pillars based on the concept that “a government should be based on principles of law and not of men”, these are:

• Supremacy of Law (Absence of arbitrary powers)
• Equality before the Law (No one is above law)
• The primacy of the rights of the individual, that is, the constitution is the result of the rights of the individual as defined and enforced by the courts of law. This element is not applicable in Indian context. In the Indian System, the constitution is the source of the individual rights.

The Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an amendment.

Writs under Article 32

Article 32 confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen.The Supreme Court has power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued include habeas corpus, mandamus, prohibition, certiorari and quo-warranto. Further, Parliament can empower any other court to issue directions, orders and writs of all kinds. However, this can be done without prejudice to the above powers conferred on the Supreme Court. Any other court here does not include high courts because Article 226 has already conferred these powers on the high courts.

These writs are borrowed from English law where they are known as ‘prerogative writs’. The writ jurisdiction of the Supreme Court differs from that of a high court in three respects:

• The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose. Thus, the writ jurisdiction of the Supreme Court, in this respect, is narrower than that of high court.
• The Supreme Court can issue writs against a person or government throughout the territory of India whereas a high court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction. Thus, the territorial jurisdiction of the Supreme Court for the purpose of issuing writs is wider than that of a high court.
• A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction. The Supreme Court is thus constituted as a defender and guarantor of the fundamental rights.

Habeas Corpus (“to have the body of”)

• It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal. Thus, this writ is a bulwark of individual liberty against arbitrary detention.
• The writ of habeas corpus can be issued against both public authorities as well as private individuals. The writ, on the other hand, is not issued where the (a) detention is lawful, (b) the proceeding is for contempt of a legislature or a court, (c) detention is by a competent court, and (d) detention is outside the jurisdiction of the court.

Mandamus (‘We Command’)

• It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.
• The writ of mandamus cannot be issued (a) against a private individual or body; (b) to enforce departmental instruction that does not possess statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against the president of India or the state governors; and (f) against the chief justice of a high court acting in judicial capacity.

Prohibition (‘to forbid’)

• It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. Thus, unlike mandamus that directs activity, the prohibition directs inactivity.
• The writ of prohibition can be issued only against judicial and quasi-judicial authorities. It is not available against administrative authorities, legislative bodies, and private individuals or bodies.

Certiorari (‘to be certified’)

• It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative.
• In 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting rights of individuals.
• Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.

Quo-Warranto (‘by what authority or warrant’)

• It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person.
• The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office.
• Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

Rights outside Part III

There are certain otherrights contained in other parts of the Constitution. These rights are known asConstitutional Rights or Legal Rights or Non-Fundamental Rights. They are:

1. No tax shall be levied or collected except by authority of law (Article 265 in Part XII).
2. No person shall be deprived of his property save by authority of law (Article 300-A in Part XII).
3. Trade, commerce and intercourse throughout the territory of India shall be free (Article 301 in Part XIII).
4. The elections to the Lok Sabha and the State Legislative Assembly shall be on the basis of adult suffrage (Article 326 in Part XV).

Directive Principle of State Policy (Part IV)

Part III and Part IV of the Constitution are the Cornerstone and the ‘Conscience of the Constitution’.

The Constitution lays down certain Directive Principles of State Policy, which though not justiciable, are 'fundamental in governance of the country', and it is the duty of the State to apply these principles in making laws.

These lay down that the State shall strive to promote the welfare of people by securing and protecting as effectively as it may, a social order, in which justice-social, economic and political-shall form in all institutions of national life.

• The State shall direct its policy in such a manner as to secure the right of all men and women to an adequate means of livelihood, equal pay for equal work and within limits of its economic capacity and development, to make effective provision for securing the right to work, education and to public assistance in the event of unemployment, old age, sickness and disablement or other cases of undeserved want.
• The State shall also endeavour to secure to workers a living wage, humane conditions of work, a decent standard of life, and full involvement of workers in management of industries.
• In the economic sphere, the State is to direct its policy in such a manner as to secure distribution of ownership and control of material resources of community to subserve the common good, and to ensure that operation of economic system does not result in concentration of wealth and means of production to common detriment.
• Some of the other important directives relate to provision of opportunities and facilities for children to develop in a healthy manner; free and compulsory education for all children up to the age of 14; promotion of education and economic interests of scheduled castes, scheduled tribes and other weaker sections; organisation of village panchayats; separation of judiciary from executive; promulgation of a uniform civil code for whole country; protection of national monuments; promotion of justice on a basis of equal opportunity; provision of free legal aid; protection and improvement of environment and safeguarding of forests and wildlife of the country; promotion of international peace and security; just and honourable relations between nations; respect for international law; treaty obligations; and settlement of international disputes by arbitration.

Features of the Directive Principles

• The phrase ‘Directive Principles of State Policy’ denotes the ideals that the State should keep in mind while formulating policies and enacting laws.
• The Directive Principles resemble the ‘Instrument of Instructions’enumerated in the Government of India Act of 1935.
• They are non-justiciable in nature, that is, they are notlegally enforceable by the courts for their violation. The Directive Principles, though non-justiciable in nature, help the courts in examining and determining the constitutional validity of a law. But these are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws.
• They help the courtsin examining and determining the constitutional validity of a law.
• They embody the concept of a ‘welfare state’ and not that of a ‘police state’, which existed during thecolonial era.
• They constitute a very comprehensive economic, social and political programme for a modern democratic State enshrined as the high ideals of justice, liberty, equality and fraternity in the Preamble to the Constitution.

Amendments to Directive Principles

• 42^ndConstitutional Amendment Act 1976 added:
  • Article 39A-To promote equal justice and to provide free legal aid to the poor.
  • Article 39(f)-To secure opportunity for healthy development of children.
  • Article 43A- To take steps to secure the participation of workers in the management of industries
• 44th Constitutional Amendment Act, 1978 added Article 38 (2), to minimize inequalities in income, statue, facilities and opportunities.
• 86th Constitutional Amendment Act, 2002 changed the subject matter of Article 45, and made elementary education a Fundamental Right under Article 21A.
• 97th Constitutional Amendment Act, 2011addedArticle 43B, to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.

Conflict between Fundamental Rights and DPSPs

The justiciability of Fundamental Rights and non-justiciability of DirectivePrinciples on the one hand and the moral obligation of State to implementDirective Principles on the other hand have led to a conflictbetween the two since the commencement of the Constitution.In theChampakam Dorairajan case (1951), the Supreme Court ruled that in caseof any conflict between the Fundamental Rights and the Directive Principles,the former would prevail.That is, the Directive Principles have toconform to and run as subsidiary to the Fundamental Rights.

As a result, the Parliament made the First Amendment Act (1951), the Fourth Amendment Act (1955) and the Seventeenth Amendment Act (1964) to implement some of the Directives.

Then in the Golaknath case (1967), the Supreme Court ruled that the Parliament cannot take away or abridge any of the Fundamental Rights, which are ‘sacrosanct’ in nature. That is, the Fundamental Rights cannot be amended for the implementation of the Directive Principles.

Against the ruling, the Parliament enacted 24th Amendment Act (1971) and the 25th Amendment Act (1971). The 24th Amendment Act declared that the Parliament has the power to abridge or take away any of the Fundamental Rights by enacting Constitutional Amendment Acts. The 25th Amendment Act inserted a new Article 31C which contained the following two provisions:

• No law which seeks to implement the socialistic Directive Principles specified in Article 39 (b) and (c) shall be void on the ground of contravention of the Fundamental Rights conferred by Article 14 (equality before law and equal protection of laws), Article 19 (protection of six rights in respect of speech, assembly, movement, etc.) or Article 31 (right to property).
• No law containing a declaration for giving effect to such policy shall be questioned in any court on the ground that it does not give effect to such a policy.

Supreme Court in the Kesavananda Bharati case (1973) ruled the second provision of Article 31C as unconstitutional and invalid on the ground that judicial review is a basic feature of the Constitution. However, the above first provision of Article 31C was held to be constitutional and valid.

Later, the 42nd Amendment Act (1976) extended the scope of the first provision of Article 31C by including within its protection any law to implement any of the Directive Principles and not merely those specified in Article 39 (b) and (c). Thus, the 42nd Amendment Act accorded the position of legal primacy and supremacy to the Directive Principles over the Fundamental Rights conferred by Articles 14, 19 and 31.

This was declared as unconstitutional and invalid by the Supreme Court in the Minerva Mills case (1980). The Directive Principles were once again made subordinate to the Fundamental Rights but the Fundamental Rights conferred by Article 14 and Article 19 were accepted as subordinate to the Directive Principles specified in Article 39 (b) and (c).

In the Minerva Mills Limited v/s Union of India case (1980), the Court observed that the constitution was founded on the bed-rock of balance between part III and part IV. To give absolute primacy to one over the other was to disturb the harmony of the constitution. This harmony and balance between fundamental rights and the directive principles is an essential feature of the basic structure of the constitution. Both the fundamental and directive principles of the state policy are embodying the philosophy of our constitution, the philosophy of justice social economic and political.

Present Position

• Fundamental Rights enjoy supremacy over the Directive Principles.
• The Parliament can amend the Fundamental Rights for implementing the Directive Principles, so long as the amendment does not damage or destroy the basic structure of the Constitution.

Fundamental Duties

The framers of the Constitution did not feel it necessary to incorporate the fundamental duties of the citizens in the Constitution. However, they incorporated the duties of the State in the Constitution in the form of Directive Principles of State Polity.

By the 42nd Amendment of the Constitution, based on the recommendation of the Swaran Singh Committee, adopted in 1976, Fundamental Duties of the citizens have also been enumerated. Article 51 'A', contained in Part IV A of the Constitution deals with Fundamental Duties.

Features

• Unlike some of the Fundamental Rights which extend to all persons whether citizens or foreigners, the Fundamental Duties are confined tocitizens only and do not extend to foreigners.
• Some of them are moral duties while others are civic duties.
• Although, these duties are not enforceable by a Court, they provide a valuable guide and aid in the interpretation of the Constitution.
• They are non-justiciable in nature that is, there is not legal sanction against their violation.However, the Parliament is free to enforce them by suitable legislation.
• They serve as a reminder to the citizens that while enjoying their rights, they should also be conscious of duties they owe to their country, theirsociety and to their fellow citizens.
• They serve as a source of inspiration for the citizens and promote a senseof discipline and commitment among them.
• It was originally ten; the Eleventh duty was added by the 86th Amendment Act, 2002.

List of Fundamental Duties

1. 51A (a) To abide the Constitution and respect its ideals and institutions, the National Flag and the National Anthem
2. 51A (b) To cherish and follow the noble ideals which inspired our national struggle for freedom
3. 51A (c) To uphold and protect the sovereignty, unity and integrity of India
4. 51A (d) To defend the country and render national services when called upon to do so
5. 51A (e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women
6. 51A (f) To value and preserve the rich heritage of our composite culture
7. 51A (g) To value protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures
8. 51A (h) To develop the scientific temper, humanism and spirit of inquiry and reform
9. 51A (i) To safeguard public property and to abjure violence
10. 51A (j)To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement
11. 51A (k) Duty of the parent or guardian to provide opportunities for education to his child, as the case may be, ward between the age of six and fourteen years (added by 86th Amendment Act, 2002).

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