LawPage

Notes and Articles for Law students

User Tools

Site Tools


constitutional_law:fundamental_rights_versus_dpsp_1828612019

Fundamental Rights versus Directive principles of state policy (DPSP)

When the tussle for primacy between fundamental rights and Directive Principles of State Policy came up before the Supreme Court first, the court said, “The directive principles have to conform to and run subsidiary to the chapter on fundamental rights.”

Later, in the Fundamental Rights Case (referred to above), the majority opinions reflected the view that what is fundamental in the governance of the country cannot be less significant than what is significant in the life of the individual. Another judge constituting the majority in that case said: “In building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive principles.”

This view, that the fundamental rights and DPSP are complementary, “neither part being superior to the other,” has held the field since.

The DPSP have, through important constitutional amendments, become the benchmark to insulate legislation enacted to achieve social objectives, as enumerated in some of the DPSP, from attacks of invalidation by courts. This way, legislation for achieving agrarian reforms, and specifically for achieving the objectives of articles 39(b) and © of the Constitution, has been immunized from challenge as to its violation of the right to equality (art. 14) and freedoms of speech, expression, etc. (art. 19). However, even here the court has retained its power of judicial review to examine if, in fact, the legislation is intended to achieve the objective of articles 39(b) and ©, and where the legislation is an amendment to the Constitution, whether it violates the basic structure of the constitution.Likewise, courts have used DPSP to uphold the constitutional validity of statutes that apparently impose restrictions on the fundamental rights under article 19 (freedoms of speech, expression, association, residence, travel and to carry on a business, trade or profession), as long as they are stated to achieve the objective of the DPSP.

The DPSP are seen as aids to interpret the Constitution, and more specifically to provide the basis, scope and extent of the content of a fundamental right. To quote again from the Fundamental Rights case:

Fundamental rights have themselves no fixed content; most of them are empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgement, curtailment and even abrogation of these rights in circumstances not visualised by the constitution makers might become necessary; their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV.

The original Constitution enforced on 26th January, 1950 did not mention anything about the duties of the citizen. It was expected that the citizens of free India would perform their duties willingly. But things didn't go as expected. Therefore, ten Fundamental Duties were added in Part-IV of the Constitution under Article 51-A in the year 1976 through the 42nd Constitutional Amendment. However, whereas Fundamental Rights are justiciable, the Fundamental Duties are non-justiciable. It means that the violation of fundamental duties, i.e. the non-performance of these duties by citizens is not punishable. The following ten duties have been listed in the Constitution of India:

  • to abide by the Constitution and respect its ideals and institutions, the National Flag, National Anthem;
  • to cherish and follow the noble ideals which inspired our national struggle for freedom;
  • to uphold and protect the sovereignty, unity and integrity of India;
  • to defend the country and render national service when called upon to do;
  • to promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women;
  • to value and preserve the rich heritage of our composite culture;
  • to protect and improve the natural environments including forests, lakes, rivers and wildlife; to develop the scientific temper, humanism and the spirit of inquiry and reform;
  • to safeguard public property and not to use violence; and 10. to serve towards excellence in all spheres of individual and collective activity.

Besides, a new duty has been added after the passage of Right to Education Act, 2009. “A parent or guardian has to provide opportunities for the education of his child/ward between the age of six and fourteen years.