Friday, June 8, 2018

LECTURE NOTES – DIRECTIVE PRINCIPLES 2

Fundamental Rights vs Directive Principles

The directives differ from the fundamental rights in Part III of the Constitution or the ordinary laws of the land, the following ways:

1. While the fundamental rights constitute limitations upon state action, the directive principles are in the nature of instruments of instruction to the government of the day to achieve certain ends by their actions.

2. Fundamental rights are justiciable, but the directive principles are non-justiciable.

3. The directives, however, require to be implanted by legislation, and so long as there is no law carrying out the policy laid down in a Directives, neither the state nor individual can violate any existing law or legal right under colour of following a Directives.

4. The fundamental rights lay down the negative obligation of the state. They are prohibitive in character and are, in fact, in the nature of injunctions requiring the state not to do certain things.

 Directive principles are, on the contrary, affirmative directions dealing with the positive obligations of the state towards the citizens..


5. The main objective of fundamental rights is to establish political democracy, by guaranteeing equality, liberty, religious freedom and cultural rights but the aim of directive principles of state policy is to establish just social and economic order.

6. The court cannot declare any law as void on the ground that it contravenes the directives.

Relative Importance of DPs vis-a-vis FRs

During the first sixteen years of the operation of the Constitution, the directive principles were considered subordinate to the fundamental rights: the courts struck down a number of laws enacted to implement directive principles on the ground that they violated the fundamental rights.


The conflict has its root in the fact that fundamental rights are enforceable by the courts, while the directive principles are not so. However, the government tried to overcome the problem by amending the Constitution.


When the Supreme Court laid down in the Golaknath Case that the fundamental rights cannot be abridged to implement the directive principles, the Government tried to overcome the limitation in 1971 through the 24th Amendment which gave Parliament the right to amend fundaments I rights.


In the same year, the 25th Amendment Act inserted Article 31c ensuring that certain laws meant to implement Directives in clauses 39 (b) and 39 (c) will prevail even if these laws violate the rights granted in Article 14 and 19.


 An attempt to enhance the scope of Article 3IC was made by the 42nd Amendment Act which gave primacy to any or all the directive principles and deprived the courts of the right to look into such cases.

This attempt was foiled by the Supreme Court majority judgement in Minerva Mills Case which asserted that such total exclusion of judicial review would offend the basic structure of the Constitution.


On the whole, however, the conflict between these two features of the Constitution is meaningless as they are, in reality complementary to each other. The courts have increasingly based their judgment on a harmonious reading of Part III and IV of the Constitution.



The Supreme Court, after the judgment in the Kesavananda Bharati case, has adopted the view of the Fundamental Rights and Directive Principles being complementary to

each other, each supplementing the other's role in aiming at the same goal of establishing a welfare state.


“The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.


This Court while acting as a sentinel on the qui vive to protect fundamental rights guaranteed to the citizens of the country must try to strike a just balance between the fundamental rights and the larger and broader interests of society so that when such a right clashes with a larger interest of the country it must yield to the latter.” –
 Supreme Court in Kesavananda Bharati judgment




The Doctrine of Basic Structure (1973)

From the Kesavananda case emerged this doctrine, which suggested that there can be no law in violation of the "basic structure" of the constitution. Although, what it exactly comprises of is subject to some debate, usually the following come under this doctrine -

The supremacy of the constitution.
Republican and democratic form of government.

The secular character of the Constitution.
Maintenance of the separation of powers. The federal character of the Constitution.


Criticism of DPs

Can lead to ‘situations of conflict’ between the center and the states
o If the Parliament passes a law to enforce DPs, even if it is beyond the fiscal reach of the states to implement the laws, failure to do so will be subject to art 256 (state governments are supposed to exercise their executive powers in accordance with the laws passed by the Parliament).


If the state does not follow 256, then by art 365 (if the state does not follow the mandates of the Parliament, then the President can deem this to be a ‘breakdown of constitutional machinery’)

Social values combined with sentimental values – prevention of cow-slaughter and alcohol consumption combined with principles of social and economic justice (39b, 39c)!

It is said they imbibe the spirit of Fabian socialism – which is now losing relevance

o The ideas of 5 year plans, setting up large and diversified public sector and nationalization of key industries came from erstwhile USSR
o However, unlike USSR, India became a democracy with a Fabian aim of socialism – that is
– achieve socialism through evolution, not revolution (e.g. Bolshevik Revolution of 1917)

o After Liberalization, Privatization, Globalization (LPG) in 1991, leading to a restricted role of public sector, the very idea of socialism is under threat

  e.g. Right after independence, we acquired land from the big landlords and distributed it to the landless tillers – now we do the opposite – we acquire land from poor farmers and hand it over to big capitalists!

These are Non-justiciable – then how can the courts monitor their implementation. Although, the courts, especially since the 1990s, have started giving significance to the DPs through ‘judicial activism’.

No proper classification is done – the segregation into Socialist, Gandhian, Liberal and International principles was not there in the Constitution.
Some Directive Principles are not practicable – strict nation-wide ban on alcohol can never be practically enforced.

No mention of methods to implement these – no time frame, no process, no agencies prescribed.


Importance of DPs

Lay down the foundation of Economic Democracy Measuring rods to judge the achievements of the Govt They establish welfare state
These are Fundamental in the Governance of the country.


 These Principles supplement Fundamental rights
Guiding Principles for courts
They bring stability and continuity in State policies

Practice Questions


Sanctions behind the DPs

  Constitution itself
  Public opinion
  Practical utility of a few DPs
  Constitutional amendments
  Laws made by the government
  Executive orders

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