Author: Sushma Narayanan
Constitution of India gives 2 types of rights . One, justiciable ,and another non- justiciable. Part lll , Article 12 to 35 deals with Fundamental rights , these rights are justiciable in nature, and can enforceable by court. But Part lV ,Article 36 to 51 deals with Directive principles of state policy (DPSP) , are non- justiciable in nature ,and also can’t enforceable by court.
Fundamental rights are negative rights , why because it always against the state. For example, article 23 and 24. It gives political democracy to citizens of India. It mainly focus on welfare of individual. But DPSP are positive rights, it always favours the state, to make a welfare state. DPSP gives social and economic democracy. DPSP mainly focus on welfare of society, not an individual. For implementing DPSP, it requires Legislations.
Part lll , Article 12 to 35 deals with fundamental rights in constitution of India. Fundamental rights deprived from inspiration of USA( Bill of rights ). Fundamental rights are guaranteed rights given by constitution, Guarantor or Guardian of Fundamental Rights is Supreme court under article 32, High court under article 226 .
Originally 7 Fundamental rights guaranteed by the Indian constitution. But , now 6 Fundamental rights are only there. Right to property as a FR deleted in 44th Constitutional (AMENDMENT) Act , 1978, and it was changed as legal right in article 300 ,part Xll of Indian constitution.
Six Fundamental Rights
- Right to equality ( art.14 to 18)
2. Right to Freedom(art.19 to 22)
3. Right against exploitation(art.23 and 24)
4. Right to freedom of religion(art.25 to 28)
5. cultural and educational rights (art.29 &30)
6. Right to constitutional remedies(art.32)
DPSP OF INDIAN CONSTITUTION
Part lV, Article 36 to 51 of Indian constitution deals with Directive principles of state policy. DPSP , sources taken from Irish constitution (Ireland) 1937, but it was originated from Spanish constitution. DPSP means, Constitutional Instruction (or) recommendation given by constitutional assemblies for state (article 36). DPSP resembles instrument of instruction and it embodies welfare state, and non- justiciable in nature, and it determines constitutional validity . Important articles in DPSP ,
Article 38 – state to secure social order for the promotion of welfare of state.
Article 39 – principles to be followed by state,
- Right to adequate means of livelihood .
- Equal distribution of material recourses.
- Prevention of concentration of wealth.
- Equal pay for equal work for men and women.
- Preservation of health for children and workers against forcible abuse.
- Healthy development of children.
Article 39A – Equal justice and free legal aid.
Article 40- Organisation of village panchayat.
Article 41 – Right to work, to education and assessment in certain cases.
Article 42 – Better human working conditions and maternity relief.
Article 44 – Uniform civil code
Article 47 – Duty of state
Article 50 – Separation of judiciary from executive.
Conflict between FR and DPSP
Fundamental Rights are justiciable in nature , and can enforceable by court. DPSP are non- justiciable in nature, and can’t enforceable by law. Reason behind the conflict between Supreme court and state are property and reservation. Supreme court is considered Guardian of Fundamental rights. But Implementation of DPSP is moral duty of state. Conflict between FR and DPSP considered as conflict between Supreme court and parliament or state. It has divided into 4 phases,
“ Champakam dorairajan Vs State of madras , 1950 – in this case, madras state follows communal reservation act,1927 . Reason of this , champakam dorairajan can’t get admission in medical collage. Then , He filed a suit before Supreme court. And SC held that, Reservation of State govt. Declared as unconstitutional and it violates art.13 and 14, and FR’s can be amended by Constitutional amendment act. Incase, conflict between FR and DPSP , FR will prevail , DPSP to be act as a subsidiary.
This case leads to 1st constitutional Amendment act,1951 . In that, if parliament amend constitution , it should not or go to be reviewed by Judiciary. Added article 15(4) to 9th schedule .
“Golaknath Vs State of Punjab 1967” – In this case, Golaknath is a zamindari, and he had 500 acres of land. But , govt. Of Punjab enact Land Reform act, and take all the lands to him, except 30 acres. He claimed , property is my FR, so state cant take it from to me ,without my consent. But, state replied, this act aims to equal distribution of common wealth (art. 39 (b) ) , prevention of concentration of wealth (art. 39(c) ). SC held that, FR can’t be amended for implementing DPSP, and can’t take away or abridge FR.
This case leads to 24th and 25th Constitutional Amendment Act. In 24th CAA,1971 , power of parliament – FR can be amended by CAA for implementing DPSP under art. 368 and 13. In 25th CAA 1971, No law to implement DPSP art. 39 (b),(c) shall be void on grounds of controving with art. 14,19 and 31, and that laws can’t be questioned in any court.
“ Kasvananda bharati Vs state of Kerala 1973” – In this case, keshvananda bharati was a head of religious institution, had some land . But , govt. Of Kerala acquire that under land reforms act. State replied that, their contention in their part, No law to implement DPSP art.39(b),(c) shall be void on grounds of contravening with art.14,19 and 3 , and that laws can’t be questioned by any court. But SC does not accept this point of parliament. It is unconstitutional and against Judicial review, and against basic structure. SC held that, FR can be amended for implementing DPSP, but basic structure should not be affected.
This leads to 42nd CAA 1976, it gives importance to DPSO more than FR. It extended the scope of art.31(c). No law to implement DPSP shall be void on the grounds of contravening with art 14, 19 and 31, and art. 31 deleted from constitution .
“ Minerva mills Vs Union of India 1980” – in this case , SC held that, extension of art.31(c)(i) unconstitutional. And it defines what is mean by basic structure. And also held that, 25th CAA was valid, but 44th CAA was not valid, and it was unconstitutional. FR and DPSP are the balance between the bedrock of constitution. The goal of achieving DPSP can be done without affecting FR or basic structure of constitution. In case conflict between FR and DPSP, FR will prevail and it is primary right, DPSP can’t prevail ,and it is subsidiary right.
FR are negative in nature and it gives political democracy. FR are not required any legislation to prove its efficacy. But DPSP are positive in nature and it gives social and economic democracy. And DPSP requires legislation to prove its efficacy. Laws violating FR declare as unconstitutional by courts, but court can’t declared as unconstitutional, if FR violate DPSP. FR always have its own efficacy to prove its originality .