Fundamental Rights or Directive Principles?
This article on ‘What is supreme: Fundamental Rights or Directive Principles?’ aims to find out whether Fundamental Rights are supreme or it is Directive Principles that are supreme.
I. Introduction | What is supreme: Fundamental Rights or Directive Principles?
There is always a constant question that we need to find out: What is supreme, Fundamental Rights that are enshrined in Part III of the Constitution or Directive Principles in Part IV of the Constitution? Finding the supremacy between both leads to the question of What are Fundamental Rights and DPSPs?
Answering the latter, we can say that these act as a safeguard for the rights of an individual in our country, provided that they should fall under the jurisdiction of India, which is also known to be the world’s largest democracy.
II. Fundamental Rights
As we know, Fundamental Rights are contained in Part III of the Indian Constitution. These rights have been taken from America’s Bill of Rights. These rights are inherent rights free from any sort of discrimination, i.e. no citizen will be discriminated against on the basis of caste, class, sex or race. If there is any sort of breach, an individual can approach the court in order for remedies.
There are six basic fundamental rights guaranteed by the Constitution.
1. Right To equality
Everybody is equal in the eyes of the law. No discrimination shall be done on the basis of caste, creed, sex or religion. Untouchability and titles must be abolished.
2. Right to freedom
Everybody has the freedom to form associations, peacefully assemble, travel/reside in any part of India, practise speech, and get education and liberty.
3. Right against exploitation
All kinds of exploitation, child labour, and trafficking are prohibited under the law.
4. Right to practise religion
The Constitution guarantees its citizens freedom to practise, profess and propagate any religion.
5. Right to freedom of culture and education
6. Right to Constitutional remedies
If the right of any citizen is infringed, then the person can approach the Supreme Court. The Supreme Court issues follow the writs.
III. Directive Principle of State Policy (DPSP)
The concept of the Directive Principle of State Policy is taken from the Irish Constitution. It imposes a duty on the State to safeguard Fundamental Rights. It is contained in Part IV of the Indian Constitution. Directive Principles act as a yardstick for the State. But unlike fundamental Rights, which are enforceable in a court of law, Directive Principles cannot enforce policy-making, rules or guidelines.
Some examples of DPSP are:
- Right to education
- Maternity benefit
- Uniform Civil code
- Providing proper nutrition food
- Providing adequate means of livelihood
IV. The interrelationship between Fundamental Rights and Directive Principles
“The Directive Principles of State Policy represent a dynamic move towards a certain objective. The Fundamental Rights represent something static, to preserve certain rights which exist. Both again are right- Jawaharlal Nehru.”
The interrelationship between Fundamental Rights and DPSPs has always been something that has made the legal fraternity think. Since the advent of the Constitution, it has gone through various changes where the judges approached it with a different mindset.
Earlier, courts adopted a very limited and strict approach to Directive Principles, where they sought that it could never override a Fundamental Right. As in the case of State of Madras v. Champakam Dorairajan, it was held that Fundamental Rights are superior to Directive Principles, and if there was a clash between the two, then Fundamental Right would supersede. Because if the opposite happens, then Fundamental Rights would lose their value.
Roughly both the Fundamental Rights and Directive Principles represent the separate streams in the evolution of human rights which are also famously called negative and positive rights or civil and political and social and economic rights, respectively.
Another classic basis of division between them is justiciability. Fundamental rights are justiciable, while Directive Principles are not.
But with the ever-changing interpretation of Articles 19 and 21, where the scope was widened, it was later realised that DPSPs are equally important as all fundamental rights even though they are not legally enforceable and justiciable. DPSPs act as an ‘index of public purpose’ like for Article 19 it acts as a yardstick for measuring the level of ‘reasonableness’, and in Article 21 it has helped the Supreme Court to widen its ambit and incorporate rights like the right to live with dignity as a right under Article 21. Not only this, Article 14, when read with Article 39(d) led to the emergence of Equal pay for Equal work.
More like the Court realised that fundamental rights could not be completely oblivious and unmindful to Directive Principles. As happened in the case of Golak Nath v. State of Punjab, where the SC said that Fundamental Rights cannot be ‘abridged, diluted or taken away.’ Along with if any DPs infringe on the rights of the citizen under Articles 14, 19 and 21, then the law is void.
So, the earlier position was where Supreme Court held “the directive principles … have to conform to and run as subsidiary to the chapter of fundamental rights” was disapproved through judicial decisions, constitutional amendments, and subsequent juristic writings.
Not only this, the doctrine of harmonious construction, which was later used in many cases, was introduced in the Constitution by the court, saying that “harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution”
In the case of N.M. Thomas v. UOI it was said that- “According to this doctrine if by any chance there is a clash between Fundamental Rights and DPSPs. The law is scrutinised in such a way that the clash is avoided and both of them co-exist in harmony without any amendment.”
In the case of Pathumma v. State of Kerela, 1978 held that the purpose of DPSPs is to reach the socio-economic goals, and we aim to work with Fundamental Rights and DPSPs together. Fundamental Rights and DPSPs are both complementary and supplementary to each other, and both of them are the conscience of the Constitution.  Since then, it has been important to read Fundamental Rights with Directive Principles while keeping in mind how to widen the ambit of the same.
The Supreme Court in Ashok Kr. Thakur v. Union Of India that-
“Just because DPSPs are not enforceable in the court of law, doesn’t mean that they are subordinate to Fundamental Rights.”
DPSPs are used to give depth to Fundamental Rights to increase and define the scope of the same while acting as a yardstick for the law at the same time. Thus, Fundamental Rights are not an end in itself, but a means to that end, and that end is specified in Directive Principles.
The Principle was restated recently by the Supreme Court in I.R. Coelho v. State of Tamil Nadu.
“By enacting fundamental rights and directive principles, which are negative and positive obligations of the state, the Constituent Assembly made it the responsibility of the Government to adopt a middle path between individual liberty and the public good.
Fundamental rights and directive principles have to be balanced. That balance can be tilted in favour of the public good. The balance, however, cannot be overturned by completely overriding individual liberty. This balance is an essential feature of the Constitution.”
Even after several developments, there are doubts of the corner which have however been expressed and arise whether both of these rights hold the same status in the Constitution. The cases of doubt about the position in status are implicit and are not explicitly expressed but can be deduced from the process of development in the law.
It is easy to find out that for quite some time, there has been a process of incorporating several Directive Principles into Fundamental Rights through judicial interpretation. There are quite a few Directive Principles from Part IV that have been converted or read into Fundamental Rights.
Due to such incorporation, the attention from those Directive Principles has been shifted to Fundamental Rights. The judiciary cannot be blamed for the shift of attention as it started the process for interpretation in good faith in order to enforce the DPs, where both the legislature and executive failed at.
There has been an expansion in the base and content of enforceable Fundamental Rights as to that of non-enforceable Directive Principles. It is clear here that merely because the judiciary is unable to enforce the Directive Principles as long as they are part of Part IV but could if they were Fundamental Rights shows the ineffectiveness and not the inferiority of DPSPs.
Following the above, there have been constitutional amendments that have explicitly shifted the DPs from Part IV to Fundamental Rights in Part III. The Eighty-sixth Constitutional Amendment Act, 2002 has made a change by inserting the right to education among Fundamental Rights on the lines of Article 45 which was interpreted by the court already among fundamental rights.
The report of the National Commission to review the working of the Constitution has recommended the conversion of several other Directive Principles into Fundamental Rights. In such a course, some of the non-justiciable and non-enforceable DPSPs get converted into justiciable and enforceable FRs.
There has been a selective transfer of significant DPSPs to Fundamental Rights in this process which implies the primacy of Fundamental Rights over Directive Principles and weakens the position and status of directive principles.
If this process continues, then gradually, there will be DPSPs in Constitution as a bare provision that does not require immediate attention. Hence, it will disturb the harmonisation and balance between Fundamental Rights and Directive Principles. This goes against the basic structure of the constitution, and therefore, such amendments to constitutions should stand foul of the basic structure doctrine.
It is important for us to understand that what was and is intended by the constitution can never be achieved if there is no realisation among us that the rights in Directive Principles are as important as those rights in Directive Principles.
There should be acceptance of the fact that everybody’s basic rights are equally important and ensure that these rights are available to everybody. The state should focus more on designing the appropriate formula or ways and means to make available these rights to every individual. The Constitution can merely provide the basic machinery for such realisation.
 Jawaharlal Nehru
 AIR 1951 SC 226
 I. Berlin, “Two Concepts of Liberty”, in I. Berlin, Four Essays on Liberty, 118 ff. (1969)
 A.I.R. 1976 SCR (2) 762
 State of Madras v. Champakam Dorairajan, 1951 SCR 525, 531
 See, e.g., Balwant Raj v. Union of India, AIR 1968 All 14; Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731; Chandra Bhavan Boarding & Lodging v. State of Mysore, (1969) 3 SCC 84.
 The Constitution (First Amendment) Act, 1951, Section 2.
 P.K. Tripathi, “Directive Principles of State Policy: The Lawyer’s Approach to Them Hitherto, Parochial, Injurious and Unconstitutional”, 17 SCJ 7 (1954). Also reprinted in P.K. Tripathi, Spotlights on Constitutional Interpretation, 291 (1972).
 Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789
 AIR 1973 SC 1461 at 1641
 (1978) 2 SCC 1
 Dalmia Cement v. Union of India
 1988 SCC (1) 541
 (2007) 2 SCC 1.
 Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645. The amendment inserts Article 21-A in the Constitution.
Originally Published on: Sep 4, 2021