THE CONSTITUTION OF INDIA: FR vs DPSP

The founders of the Constitution of India introduced two beautiful parts: Part-III dealing with the Fundamental Rights (FR)of the people and Part-IV dealing with Directive Principles of State Policy (DPSP) , in the endeavour to move with clear ideals for social and economic democracy. If the former is for assertion and sphere protection, the latter is for forward march to bring about the right order based on socio-economic equality. If one is for individual advancement, the other is for collective advancement.

In this scenario, there is every likelihood of spheres encroaching on one another, and the crucial part is balancing roles through check and balance. But for the two entities in their natural scenario, given their freedom, there is every likelihood of friction, conflict, interference, and encroachment. The Constitution makers, in anticipation of such a scenario, devised a well-crafted mechanism by balancing the role of the judiciary under the overall supervision of the Supreme Court of India.

1.Outline

The Supreme Court of India is endowed with extensive original, appellate and advisory jurisdiction besides the power to punish for contempt through which it can act as the final authority in the mater of interpretation, arbitration and enforcement of law and constitution (Arts 13, 32, 131, 129 and 142) .

1.1. Art 13 (1): All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

Art 13(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.

1.2. Art 32. Remedies for enforcement of rights conferred by this Part.—

(1) The right to move the Supreme Court by appropriate proceedings for the

enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or

writs, including writs in the nature of habeas corpus, mandamus, prohibition,

quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this CoConstitution.

1.3. Art. 226. Power of High Courts to issue certain writs.—(1) Notwithstanding anything in article 32 3***, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including 4 (writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose). The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

1.4. Art 129. The Supreme Court of India shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

1.5. Art 131. Original jurisdiction of the Supreme Court. Subject to the provisions of this Constitution, the Supreme Court of India shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Government of India and one or more States; or 

between the Government of India and any State or States on one side and one or more other States on the other; or

between two or more States, if and in so far as the dispute involves any question  (whether of law or fact) on which the existence or extent of a legal right depends.

2. Fundamental Rights:

Rights emanating from the individual as well as membership of the state which are fundamental to the fact that ‘man is born free’ and are essential to preserve his naturally endowed rights to life, liberty, freedom, free exercise of his speech, conscience, faith, movement and practise any professional endeavour.

Rights are inherited, bestowed, ascribed and endowed in relation to a certain context of time, space and situation. Nothing is absolute and everything in relation to a context.  

What is called fundamental rights in one is human rights in another context. Although fundamental rights do not always afford the same guarantees as human rights in other context. 

 Certain rights are called fundamental because by their very nature they require exclusive protection from the Court of law against the all-powerful state. Fundamental rights always posited vis-a-vis something else that is much more powerfull, either organically or contractually or through any other mechanism, with the built-in tendency to interfer or encroach upon.This is under the assumptions that an all pervading power might strive any moment to interfer, encroach, stifle and curb the rights under some or other pretexts or the others.

These rights are fundamental for human being as such and as a member of a political entity for growth, exercise and free movement. Major democracies recognise certain fundamental rights of the individual irrespective of his birth, gender, class, creed, religion or faith. Besides certain fundamental rights are guarenteed to members of a certain political entity, i.e. sovereign state. In USA, its called Bill of Rights, 1776, and in France, Rights of man and citizen, 1789. “The Declaration of Independence refers to the people of the United States as being free, and outlines how the British royalty stands in the way of free people living freely. This is similar to the first clause of the French Declaration, where it states that all people are free and are to live in equality.”

In India certain fundamental rights (Arts 20-21) are inalienable and can not be violated under any emergency provisions and are well recognised as per the Constitution (Forty-fouth) Amendment Act, 1978.

Rights are fundamentals to individual and citizens and are a matter of assertion and exercise in a certain context and enshrined in the Constitution of India in Part-III (Arts 12-  35) with the exception of Art 31 which has since been repealed vide Constitution (Forty-fouth) Amendment Act, 1978.

3. Directive Principles of State Policy

The Principles of State Policy enshrined in Part-IV (Arts 36-51) of the Constitution of India as the name implies are guiding principles for state action. The Principles of State  Policies as a matter of rights of governance for the State to bring about a just social and economic order based on equity, justice, empowerment and affirmation.

This is an arena for expanding the sphere of state policies, programmes and activities with certain demarcated objectives.

3.1. Equality in matter of civil law.

3.2. Empowerment for the underprivileged The Supreme Court of India is endowed with extensive original, appellate, and advisory jurisdiction, besides the power to punish for contempt, through which it can act as the final authority in the matter of interpretation, arbitration, and enforcement of law and constitution (Arts 13, 32, 131, 129 and 142) .

1.1. Art 13 (1): All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

Art 13(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

1.2. Art 32. Remedies for enforcement of rights conferred by this Part.—

(1) The right to move the Supreme Court through appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have the power to issue directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition,

quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

1.3. Art. 226. Power of High Courts to issue certain writs —(1) Notwithstanding anything in Article 32 3***, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders, or writs, including 4 (writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose). The Supreme Court shall have the power to issue directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

1.4. Art 129. The Supreme Court of India shall be a court of record and shall have all the powers of such a court, including the power to punish for contempt of itself.

1.5. Art 131. Original jurisdiction of the Supreme Court.

Subject to the provisions of this Constitution, the Supreme Court of India shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Government of India and one or more states; or

between the Government of India and any state or states on one side and one or more other states on the other; or

between two or more states, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.

2. Fundamental Rights:

Rights emanating from the individual as well as membership in the state are fundamental to the fact that'man is born free’ and are essential to preserving his naturally endowed rights to life, liberty, freedom, free exercise of his speech, conscience, faith, movement, and practise any professional endeavour.

Rights are inherited, bestowed, ascribed, and endowed in relation to a certain context of time, space, and situation. Nothing is absolute, and everything is relative to its context.

What is called fundamental rights in one context is human rights in another context. Although fundamental rights do not always afford the same guarantees as human rights in other contexts,

Certain rights are called fundamental because, by their very nature, they require exclusive protection from the Court of Law against the all-powerful state. Fundamental rights are always posited against something else that is much more powerful, either organically, contractually, or through any other mechanism, with the built-in tendency to interfer with or encroach upon it. This is under the assumption that an all-pervading power might strive at any moment to interfer, encroach, stifle, and curb rights under some or other pretexts.

These rights are fundamental for a human being as such and as a member of a political entity for growth, exercise, and free movement. Major democracies recognise certain fundamental rights of the individual, irrespective of his birth, gender, class, creed, religion, or faith. Besides, certain fundamental rights are guaranteed to members of a certain political entity, i.e., a sovereign state. In the USA, it is called the Bill of Rights, 1776, and in France, the Rights of Man and Citizen, 1789. “The Declaration of Independence refers to the people of the United States as being free and outlines how the British royalty stands in the way of free people living freely. This is similar to the first clause of the French Declaration, where it states that all people are free and are to live in equality.”

In India, certain fundamental rights (Arts 20-21) are inalienable, cannot be violated under any emergency provisions, and are well recognised as per the Constitution (Forty-fourth) Amendment Act, 1978.

Rights are fundamentals to individuals and citizens and are a matter of assertion and exercise in a certain context and enshrined in the Constitution of India in Part-III (Arts 12-  35) with the exception of Art 31 which has since been repealed vide Constitution (Forty-fourth) Amendment Act, 1978.

3. Directive Principles of State Policy

The Principles of State Policy enshrined in Part-IV (Arts 36-51) of the Constitution of India, as the name implies, are guiding principles for state action. The Principles of State Policies are a matter of rights of governance for the state to bring about a just social and economic order based on equity, justice, empowerment, and affirmation.

This is an arena for expanding the sphere of state policies, programmes, and activities with certain demarcated objectives.

3.1. Equality in matters of civil law.

3.2. Empowerment for the underprivileged sections of society

3.3 Enabling measures for better access to opportunities in the socio-economic ladder and in the social and economic spheres through guarantees in education, living wages, income, and shelter

3.4. Equipping various sections of society, hitherto disadvantaged, with capacity and capability enhancement

3.5. Expanding promotional and protectional measures for the environment, monuments, etc.

3.6. Enhancement of the nutritional level, raising the standard of living, and improving public health.

4. Remarks

Fundamental Rights and Directive Principles of State Policy are going for cohabitation, as both, through their interactive roles, reinforce each other by strengthening each other's roles and positions. The art of principles of state policy states that "The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.”

The right to education under Principles of State Policy became a Fundamental Right (Art 22A) through the intervention of the Supreme Court of India, followed by constitutional amendment and the Right to Education Act 2009.21A.

The Supreme Court in Mohini Jain v. State of Karnataka, 1992, observed that that  "life and personal liberty" in Article 21 of the Constitution of India automatically implies some other rights that are necessary for the full development of the personality, and education is one such right responsible for overall development of an individual and needs to be integrated in Article 21 of the Constitution.

Following the Supreme Court verdict, the constitution was amended in 2002. The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has a right to full-time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

Article 21-A and the RTE Act came into effect on 1 April 2010. The title of the RTE Act incorporates the words ‘free and compulsory.’ ‘Free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. 

To supplement the guidelines in the preamble as well as the Principles of State Policy, the right to property is no longer a fundamental right (Art 31 deleted) and has been converted into a legal right (Art 300A) of the Constitution.

Rather, both endure through mutual cohabitation and fellowship.

-Asutosh Satpathy