Document Text Contents
Page 1
READING DIRECTIVE PRINCIPLES AND FUNDAMENTAL DUTIES INTO FUNDAMENTAL
RIGHTS
1.INTRODUCTION
The Constitution of India aims to establish not only political democracy but also socioeconomic justice to the
people to establish a welfare state. With this purpose in mind, our Constitution lays down desirable principle and
guidelines in Part IV. These provisions are known as the Directive Principle of State Policy. It is a well-
established saying that rights have significance only when enjoyed in consonance with the duties. Therefore, the
Fundamental Duties were inserted in Article 51A of our Constitution in 1976 by 42nd Amendment Act. In the
original Constitution in 1950, there was no mention of these duties. It was expected that the citizens would fulfil
their duties willingly.
2.FUNDAMENTAL RIGHTS
a).Meaning of Fundamental Rights (part-III):- fundamental rights are rights without which a human being
cannot survive in dignified manner in a civilized society. Fundamental rights are known as “basic rights or
Justiciable rights”. They are also called as individual rights or negative rights” and impose negative obligations on
the state not to encroach on individual liberty.
b).Classification of fundamental rights
Article 12 to 35 of the constitution provide for different kinds of fundamental rights as stated below:
1. Definition of state (Art 12)
2. Laws inconsistent with or in derogation of the fundamental rights (Art.13)
3. Right to equality (Art 14-18)
4. Right to freedom (Art 19-21)
5. Safeguard against Arbitrary arrest (Art 22)
6. Right against Exploitation (Arts 23 & 24)
7. Freedom of religion (Arts 25-28)
8. Cultural and educational rights (Arts. 29 & 30)
9. Saving of certain laws (Arts 31-A, 31-B and 31-C) and
10. Right to constitutional remedies (Arts 32-35)
3.DIRECTIVE PRINCIPLES OF STATE POLICY
a).Meaning of Directive Principles of State Policy( part IV)
Part-IV of the constitution deals with “directive principles of state policy”. They are positive rights and impose
positive obligations on the state. Directive Principles of State Policy are in the form of instructions/guidelines to
the governments at the center as well as states. Though these principles are non-justiciable, they are fundamental
in the governance of the country The idea of Directive Principles of State Policy has been taken from the Irish
Republic. They were incorporated in our Constitution in order to provide economic justice and to avoid
concentration of wealth in the hands of a few people. Therefore, no government can afford to ignore them. They
are infact, the directives to the future governments to incorporate them in the decisions and policies to be
formulated by them
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Page 8
The Supreme Court held that the Chapter of Fundamental Rights is sacrosanct and not liable to be abridged by
any legislative or executive act or order, except to the extent provided in the Article provided in Part III. The
Directive Principles of State Policy cannot override the provisions found in part III but have to conform to and
run as subsidiary to the chapter of Fundamental Rights. The Fundamental Rights would be reduced to a mere rope
of sand if they were to be overridden by the Directive Principles.
Constitutional Bench of the Supreme Court solemnly declared the law as follows:
“The Directive Principles of the State policy, which by article 37, are expressly made unenforceable by a court,
cannot override the provisions are expressly made enforceable by appropriate writs orders or directions under
article 32. The chapter of Fundamental Right is sacrosanct and not liable to be abridged by any legislation or
Executive act or order except to the extent provided in the appropriate article in part III. The Directive Principles
of State policies have to conform to and run subsidiary to the chapter of Fundamental Rights. In our opinion that
is the correct way in which the provisions found in Part III and IV have to be understood.
However so long as there is no infringement of any Fundamental Rights to the extent conferred by the provisions
in part III, there can be no objection to the state acting in accordance with the Directive Principles set out in part
IV, but subject to the Legislative and Executive powers and limitations conferred on the state under different
provisions of the Constitution.”
The Law declared by the Supreme Court in Champakam’s case has caused irreparable damage to the
country and the Constitution. It gave a set back to the implementation of Directive Principles. The judicial
decisions made it clear that:
1) Directive Principles are non-justiciable and these cannot override Fundamental rights.
2) Directive Principles have to conform and run subsidiary to the Fundamental Rights.
3) Fundamental Rights envisaged in Part III of the Constitution is sacrosanct and cannot be abridged by the
legislature or executive except to the extent provided in the appropriate articles in part III.
4) Any action of the state under Directive Principles is subject to the legislative and executive powers.
Thus, the court held that if there is any conflict between Fundamental Rights and directive Principles it is the
Directive Principles which would be subordinate to the Fundamental Rights.
The hang-over of this observation was that it stood in the way of many socio-economic reforms.
2. SCOPE AND AMBIT OF FUNDAMENTAL RIGHTS TO BE DETERMINED WITH THE HELP OF
DIRECTIVE PRINCIPLES (HARMONIOUS CONSTRUCTION):
In its second phase of interpretation, the Supreme Court placed reliance on the Directive Principles for
validating a number of legislations that were found not violative of Fundamental Rights. The directive Principles
were regarded as a dependable index of;
1) Public Purpose, and
2) Reasonableness of restrictions on Fundamental Rights.
In Bombay V. Balsara The Government of Bombay banned the consumption of liquor except for medicinal
preparation the court held that it amounted as reasonable restriction under Article 19(6).
In State of Bihar V. Kameshwar Singh , the Supreme Court relying upon the Directive Principles incorporated in
Article 39(b) held that certain zamindari abolition laws had been passed for a public purpose within the meaning
of Article 31(2). It was held that the State ownership or control over land was a necessary preliminary step
towards the implementation of Directive Principles and it could not but be a public purpose. It was further held
that the Directive Principles were not merely the policy of any particular party but were intended to be principles
fixed by the Constitution for directing the State Policy whatever party might come into power.
The Supreme Court took a little uncertain and complicated view in Mohammed Hanif Qureshi v. State of Bihar.
In this case, the validity of U.P., M.P. and Bihar legislation which banned slaughter of certain animals including
cows was challenged. It was contended that this ban prevented the petitioners from carrying on their butcher’s
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trade and its subsidiary undertaking and, therefore, infringed their Fundamental Rights, inter alia, guaranteed
under Article 19(1)(g). The States maintained;
1) that the legislations were enacted in pursuance of the Directive Principles contained in Article 48 which
provided inter alia prohibition of slaughter of cows, calves and other milk and draught cattle;
2) that the laws having been made in discharge of the fundamental obligation imposed on the States, the
Fundamental Rights conferred on the citizens and other by Part III must be regarded as subordinate to those laws;
and
3) that the Directive Principles were equally, if not more, fundamental and must prevail. The Supreme Court, in
this case, could not agree with the contention of the State. S.R. Das, CJ said:
“We are unable to accept this argument as sound. Article 13(2) expressly says that State shall not make any law
which takes away or abridges the rights conferred by Chapter III which enshrines Fundamental Rights. The
Directive Principles cannot override this categorical restriction imposed on the legislative power of the state. A
harmonious interpretation has to be placed upon the Constitution and so interpreted. It means that the State should
certainly implement the Directive Principles but it must do so in such a way that its laws do not take away or
abridge the Fundamental Rights. For otherwise, the protecting provision of Chapter III will be mere rope of sand
S.R. Das, CJ, in accordance with this view held:
1) that the total ban on slaughter of cows of all ages, cows, calves and of she-buffaloes, male and female is quite
reasonable and valid and is in consonance with the Directive Principles laid down under Article 48;
2) that a total ban on slaughter of the buffaloes or breeding of bulls or working bullocks as long as these are a
milk or draught cattle is also reasonable and valid; and
3) that a total ban on the slaughter of she-buffaloes, bulls and bullocks after they cease to be capable of yielding
milk of breeding or working as draught animals cannot be supported as reasonable.
This decision is also on the lines of the judgement given in Champakam’s case that the Directive Principles
cannot override the categorical restrictions imposed by Article 13(2) on the state. Thus, if the Directive Principles
cannot override this categorical restriction, a logical conclusion would be that they must then remain subservient
to Fundamental Rights as envisaged by the Supreme Court Champakam Dorrairajan’s case.
The court however, for the first time, in this case introduced the doctrine of harmonious construction as a new
technique of Interpretation in this field. But this new technique, according to S.R. Das, CJ has to be applied in
such a way as not to take away or abridge Fundamental Rights. This new technique seems to lead nowhere. A
kind of uncertainty and complication has been created. A legislation which does not take away or abridge
Fundamental Rights will be valid whether or not it is in consonance with a directive principle, but the problem
will arise when legislation, with a view to implement the directive principle, came in conflict with Fundamental
Rights. This new technique of harmonious construction will be of no help, in such situation, in solving the
problem. This judgement creates a further problem in the Constitutional interpretation. The earlier part of the
judgement which upheld the legality of the acts as in consonance with Article 48 in fact violated the other part of
the Directive Principles enshrined in Article 41, 45 and 47. Article 41 speaks of the state making effective
provision for securing right to work. The prohibition would destroy the right to butchering. Article 45 deals with
free and compulsory education. It was observed in this case that Rs.19 per head was needed to preserve useless
cattle whereas the expenditure on national education was Rs.5 per capita.
Thus, upholding the legislation in accordance with Article 48, violated Article 45 because money which can be
spent on providing free education was illogically and extravagantly spent on maintaining useless cattle. Article 67
speaks of raising the level of nutrition and living standards of people. Beef and buffalo meet, because of its
cheapness, were the principal source of much needed protein consumed by the poorer people of certain
communities who would be deprived of essential protein by such prohibition. Thus, the implementation of Article
45 violated Article 41, 45 and 47 of the same part, i.e. Part IV. This aspect of the Directive Principles did not
9
READING DIRECTIVE PRINCIPLES AND FUNDAMENTAL DUTIES INTO FUNDAMENTAL
RIGHTS
1.INTRODUCTION
The Constitution of India aims to establish not only political democracy but also socioeconomic justice to the
people to establish a welfare state. With this purpose in mind, our Constitution lays down desirable principle and
guidelines in Part IV. These provisions are known as the Directive Principle of State Policy. It is a well-
established saying that rights have significance only when enjoyed in consonance with the duties. Therefore, the
Fundamental Duties were inserted in Article 51A of our Constitution in 1976 by 42nd Amendment Act. In the
original Constitution in 1950, there was no mention of these duties. It was expected that the citizens would fulfil
their duties willingly.
2.FUNDAMENTAL RIGHTS
a).Meaning of Fundamental Rights (part-III):- fundamental rights are rights without which a human being
cannot survive in dignified manner in a civilized society. Fundamental rights are known as “basic rights or
Justiciable rights”. They are also called as individual rights or negative rights” and impose negative obligations on
the state not to encroach on individual liberty.
b).Classification of fundamental rights
Article 12 to 35 of the constitution provide for different kinds of fundamental rights as stated below:
1. Definition of state (Art 12)
2. Laws inconsistent with or in derogation of the fundamental rights (Art.13)
3. Right to equality (Art 14-18)
4. Right to freedom (Art 19-21)
5. Safeguard against Arbitrary arrest (Art 22)
6. Right against Exploitation (Arts 23 & 24)
7. Freedom of religion (Arts 25-28)
8. Cultural and educational rights (Arts. 29 & 30)
9. Saving of certain laws (Arts 31-A, 31-B and 31-C) and
10. Right to constitutional remedies (Arts 32-35)
3.DIRECTIVE PRINCIPLES OF STATE POLICY
a).Meaning of Directive Principles of State Policy( part IV)
Part-IV of the constitution deals with “directive principles of state policy”. They are positive rights and impose
positive obligations on the state. Directive Principles of State Policy are in the form of instructions/guidelines to
the governments at the center as well as states. Though these principles are non-justiciable, they are fundamental
in the governance of the country The idea of Directive Principles of State Policy has been taken from the Irish
Republic. They were incorporated in our Constitution in order to provide economic justice and to avoid
concentration of wealth in the hands of a few people. Therefore, no government can afford to ignore them. They
are infact, the directives to the future governments to incorporate them in the decisions and policies to be
formulated by them
1
Page 8
The Supreme Court held that the Chapter of Fundamental Rights is sacrosanct and not liable to be abridged by
any legislative or executive act or order, except to the extent provided in the Article provided in Part III. The
Directive Principles of State Policy cannot override the provisions found in part III but have to conform to and
run as subsidiary to the chapter of Fundamental Rights. The Fundamental Rights would be reduced to a mere rope
of sand if they were to be overridden by the Directive Principles.
Constitutional Bench of the Supreme Court solemnly declared the law as follows:
“The Directive Principles of the State policy, which by article 37, are expressly made unenforceable by a court,
cannot override the provisions are expressly made enforceable by appropriate writs orders or directions under
article 32. The chapter of Fundamental Right is sacrosanct and not liable to be abridged by any legislation or
Executive act or order except to the extent provided in the appropriate article in part III. The Directive Principles
of State policies have to conform to and run subsidiary to the chapter of Fundamental Rights. In our opinion that
is the correct way in which the provisions found in Part III and IV have to be understood.
However so long as there is no infringement of any Fundamental Rights to the extent conferred by the provisions
in part III, there can be no objection to the state acting in accordance with the Directive Principles set out in part
IV, but subject to the Legislative and Executive powers and limitations conferred on the state under different
provisions of the Constitution.”
The Law declared by the Supreme Court in Champakam’s case has caused irreparable damage to the
country and the Constitution. It gave a set back to the implementation of Directive Principles. The judicial
decisions made it clear that:
1) Directive Principles are non-justiciable and these cannot override Fundamental rights.
2) Directive Principles have to conform and run subsidiary to the Fundamental Rights.
3) Fundamental Rights envisaged in Part III of the Constitution is sacrosanct and cannot be abridged by the
legislature or executive except to the extent provided in the appropriate articles in part III.
4) Any action of the state under Directive Principles is subject to the legislative and executive powers.
Thus, the court held that if there is any conflict between Fundamental Rights and directive Principles it is the
Directive Principles which would be subordinate to the Fundamental Rights.
The hang-over of this observation was that it stood in the way of many socio-economic reforms.
2. SCOPE AND AMBIT OF FUNDAMENTAL RIGHTS TO BE DETERMINED WITH THE HELP OF
DIRECTIVE PRINCIPLES (HARMONIOUS CONSTRUCTION):
In its second phase of interpretation, the Supreme Court placed reliance on the Directive Principles for
validating a number of legislations that were found not violative of Fundamental Rights. The directive Principles
were regarded as a dependable index of;
1) Public Purpose, and
2) Reasonableness of restrictions on Fundamental Rights.
In Bombay V. Balsara The Government of Bombay banned the consumption of liquor except for medicinal
preparation the court held that it amounted as reasonable restriction under Article 19(6).
In State of Bihar V. Kameshwar Singh , the Supreme Court relying upon the Directive Principles incorporated in
Article 39(b) held that certain zamindari abolition laws had been passed for a public purpose within the meaning
of Article 31(2). It was held that the State ownership or control over land was a necessary preliminary step
towards the implementation of Directive Principles and it could not but be a public purpose. It was further held
that the Directive Principles were not merely the policy of any particular party but were intended to be principles
fixed by the Constitution for directing the State Policy whatever party might come into power.
The Supreme Court took a little uncertain and complicated view in Mohammed Hanif Qureshi v. State of Bihar.
In this case, the validity of U.P., M.P. and Bihar legislation which banned slaughter of certain animals including
cows was challenged. It was contended that this ban prevented the petitioners from carrying on their butcher’s
8
Page 9
trade and its subsidiary undertaking and, therefore, infringed their Fundamental Rights, inter alia, guaranteed
under Article 19(1)(g). The States maintained;
1) that the legislations were enacted in pursuance of the Directive Principles contained in Article 48 which
provided inter alia prohibition of slaughter of cows, calves and other milk and draught cattle;
2) that the laws having been made in discharge of the fundamental obligation imposed on the States, the
Fundamental Rights conferred on the citizens and other by Part III must be regarded as subordinate to those laws;
and
3) that the Directive Principles were equally, if not more, fundamental and must prevail. The Supreme Court, in
this case, could not agree with the contention of the State. S.R. Das, CJ said:
“We are unable to accept this argument as sound. Article 13(2) expressly says that State shall not make any law
which takes away or abridges the rights conferred by Chapter III which enshrines Fundamental Rights. The
Directive Principles cannot override this categorical restriction imposed on the legislative power of the state. A
harmonious interpretation has to be placed upon the Constitution and so interpreted. It means that the State should
certainly implement the Directive Principles but it must do so in such a way that its laws do not take away or
abridge the Fundamental Rights. For otherwise, the protecting provision of Chapter III will be mere rope of sand
S.R. Das, CJ, in accordance with this view held:
1) that the total ban on slaughter of cows of all ages, cows, calves and of she-buffaloes, male and female is quite
reasonable and valid and is in consonance with the Directive Principles laid down under Article 48;
2) that a total ban on slaughter of the buffaloes or breeding of bulls or working bullocks as long as these are a
milk or draught cattle is also reasonable and valid; and
3) that a total ban on the slaughter of she-buffaloes, bulls and bullocks after they cease to be capable of yielding
milk of breeding or working as draught animals cannot be supported as reasonable.
This decision is also on the lines of the judgement given in Champakam’s case that the Directive Principles
cannot override the categorical restrictions imposed by Article 13(2) on the state. Thus, if the Directive Principles
cannot override this categorical restriction, a logical conclusion would be that they must then remain subservient
to Fundamental Rights as envisaged by the Supreme Court Champakam Dorrairajan’s case.
The court however, for the first time, in this case introduced the doctrine of harmonious construction as a new
technique of Interpretation in this field. But this new technique, according to S.R. Das, CJ has to be applied in
such a way as not to take away or abridge Fundamental Rights. This new technique seems to lead nowhere. A
kind of uncertainty and complication has been created. A legislation which does not take away or abridge
Fundamental Rights will be valid whether or not it is in consonance with a directive principle, but the problem
will arise when legislation, with a view to implement the directive principle, came in conflict with Fundamental
Rights. This new technique of harmonious construction will be of no help, in such situation, in solving the
problem. This judgement creates a further problem in the Constitutional interpretation. The earlier part of the
judgement which upheld the legality of the acts as in consonance with Article 48 in fact violated the other part of
the Directive Principles enshrined in Article 41, 45 and 47. Article 41 speaks of the state making effective
provision for securing right to work. The prohibition would destroy the right to butchering. Article 45 deals with
free and compulsory education. It was observed in this case that Rs.19 per head was needed to preserve useless
cattle whereas the expenditure on national education was Rs.5 per capita.
Thus, upholding the legislation in accordance with Article 48, violated Article 45 because money which can be
spent on providing free education was illogically and extravagantly spent on maintaining useless cattle. Article 67
speaks of raising the level of nutrition and living standards of people. Beef and buffalo meet, because of its
cheapness, were the principal source of much needed protein consumed by the poorer people of certain
communities who would be deprived of essential protein by such prohibition. Thus, the implementation of Article
45 violated Article 41, 45 and 47 of the same part, i.e. Part IV. This aspect of the Directive Principles did not
9
