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Module details Name Affiliation

Subject Name Social Work

Paper Name CONSTITUTION – PART V :


FUNDAMENTAL RIGHTS AND
DIRECTIVE PRINCIPLES

Module LEGAL LITERACY

Paper Coordinator MAHARUKH ADENWALLA LAWYER

Module Writer MAHARUKH ADENWALLA LAWYER


Keywords FUNDAMENTAL RIGHTS – ARTICLE 32
– CONSTITUTIONAL REMEDIES –
SUPREME COURT - WRITS – HABEAS
CORPUS – MANDAMUS – PROHIBITION
– CERTIORARI – QUO WARRANTO –
ARTICLE 226 – HIGH COURT –
DIRECTIVE PRINCIPLES – WELFARE
STATE – DISTRIBUTIVE JUSTICE.

Summary (1) DISCUSSES THE REMEDY


AVAILABLE FOR VIOLATION OF
FUNDAMENTAL RIGHTS AND THE
DIFFERENT WRITS THAT THE
SUPREME COURT HAS THE PWERS TO
PASS IN THIS RESPECT.
(2) UNDERSTANDING THE CONCEPT OF
DIRECTIVE PRINCIPLES, INCLUDING
THE DIFFERENCE BETWEE
FUNDAMENTAL RIGHTS AND
DIRECTIVE PRINCIPLES.
(3) EXAMINES ARTICLES 38 AND 39
WHICH REFLECT INDIA TO BE A
WELFARE STATE, AS ALSO THE
MANNER IN WHICH THE STATE
SHOULD DISTRIBUTE RESOURCES
AMONG PEOPLE.
.

Content reviewer PROF MANISH JHA Professor and Dean, School of


Social Work, Tata Institute of
Social Sciences

FUNDAMENTAL RIGHTS (CONTD.)


RIGHT TO CONSTITUTIONAL REMEDIES
Fundamental rights are justiciable. This means that when one’s fundamental
rights are violated, such person may approach the court for its enforcement.
Constitution-makers have treated as a fundamental right, the right to move
the court for its enforcement - Remedies for enforcement of rights conferred by
this Part.
Article 32 (1) : ‘The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this Part is
guaranteed.’
Thus, the Supreme Court may be approached in case of violation of
fundamental rights. This jurisdiction of the Supreme Court is called ‘the writ
jurisdiction’. The Supreme Court sits in Delhi, and has jurisdiction throughout
the territory of India. Article 141 : ‘The law declared by the Supreme Court
shall be binding on all courts within the territory of India.’
Any person aggrieved due to violation of fundamental rights may move the
Supreme Court - only citizens, where the fundamental right that is contravened
is guaranteed only to a citizen, such as, Art. 19, and any person, where the
fundamental right that is contravened is guaranteedto all persons, such as,
Article 21.
Article 32 (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.’
A fundamental right is made enforceable by issuing writs, which are orders or
directions of the Supreme Court. Clause (2) of Article 32 enumerates the five
types of writs that may be issued.
(i) Writ of Habeas Corpus : It is a Latin term that means ‘you have the
body’. Such writ is sought for the release of a person who has been
detained in violation of fundamental rights and / or procedure
established by law. It is filed to secure the release of a person who
has been illegally detaine, thereby assuring his personal liberty. The
court directs the detaining authority to produce the detained person
to ascertain the legality of such detention. As the person is in
detention or his whereabouts not known, the Supreme Court may be
approached by a family member, friend or any other person who has
knowledge of such detention. For example, under clause (2) of Article
22, the investigating agency is mandated to produce before the
Magistrate every person within twenty-four hours of his arrest – this
is a fundamental right - if a person is detained without such
production, a petition may be filed seeking his release. See Ummu
Sabeena v. State of Kerala [(2011) 10 SCC 781].

(ii) Writ of Mandamus : Mandamus means ‘command’. A writ of


mandamus will lye against a person, authority or agency who is duty
bound by law to conduct certain activities and his failure to do so
results in violation of fundamental rights. An order is passed by the
Supreme Court directing the relevant public official or state authority
or state agency to perform an official duty so as to prevent
fundamental rights’ violations. For example, the Mumbai Municipal
Corporation under the Mumbai Municipal Corporation Act is
mandated to maintain the streets of Mumbai - in the event a street is
not cleaned resulting in collection of garbage, which violates the
residents’ right to a decent environment and / or right to health -
both being fundamental rights - a writ of mandamus will lye against
the Assistant Municipal Commissioner of that Ward. SeeUnion of
India v. S.B. Vohra [(2004) 2 SCC 150].

(iii) Writ or Prohibition :This writ is issued by the Supreme Court to a


lower court preventing that lower court from exercising jurisdiction
not vested in it. It restrains the lower court from proceeding with the
matter pending before it. It lyes against a judicial or quasi-judicial
authority. For example, if the Magistrate’s Court is conducting a trial
of an offence that only the Sessions Court has the power to entertain,
the Supreme Court may be moved to ensure that the trial does not
continue before the Magistrate.

(iv) Writ of Certiorari : This writ is similar to the Writ of Prohibition,


except that the lower court, not having jurisdiction, has disposed the
matter. In Writ of Prohibition the matter is pending before the lower
court, whereas, in Writ of Certiorari the matter has been disposed of.
A Writ of Certiorari is issued to quash, set-aside and revoke such
order. It is also available against administrative action which is not in
conformity with the fundamental rights or principles of natural
justice. For example, a decision that adversely impacts a person is
taken without giving such person a hearing – such decision departs
from the ‘audi alteram partem’ rule (a party should be given an
opportunity to be heard prior to taking any decision),which is a
principle of natural justice, and requires to be set aside. See Hari
Vishnu Kamath v. Ahmad Ishaque [(1955) 1 SCR 1104].

(v) Writ of Quo Warranto : Intervention of the Supreme Court is sought


to examine the legality of a claim which a person asserts to a public
office. If the court is satisfied that such claim is well founded, the
person holding such office will be ousted. It grants the higher
judiciary control over executive action in making appointments to
public offices, and to ensure that a person who has a legal right to a
public office is not deprived of such office due to nepotism. This
public office or post must be created by the Constitution or statute.
For example, a Writ of Quo Warranto may be resorted to when a post
created under statute has been filled without following the
procedure laid down under that statute.See Renu vs. District &
Sessions Judge [(2014) 14 SCC 50].

It is not only the Supreme Court, the High Courts too have been granted, under
Article 226, the power to issue the aforementioned writs ‘for enforcement of
any of the rights conferred by Part III and for any other purpose.’ Hence, a
petitioner has the choice to enforce fundamental rights either before the
Supreme Court or the High Court. The words ‘for any other purpose’ denotes
that the writ power of the High Court is wider and not limited to contravention
of fundamental rights.

DIRECTIVE PRINCIPLES

Directive Principles are contained in Part IV of the Constitution, and flow from
Articles 38 to 51. We are going to examine a few important directive principles.
The term ‘state’ used in this Part has the same meaning as ‘state’ described
under Article 12, which has been examined in Module I.
What are Directive Principles
Article 37 defines Directive Principles – ‘The provisions contained in this Part
shall not be enforceable by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and it shall be the
duty of the State to apply these principles in making laws.’
Directive Principles express the aims and objects of a Welfare State,
propounding the concept of socio-economic justice. The state is required to
keep in mind the directive principles while administering the country and when
enacting laws. In Golak Nath vs. State of Punjab [(1967) 2 SCR 762], the
Supreme Court states, “In Part IV of the Constitution, the Directive Principles of
State Policy are laid down. It enjoins it to bring about a social order in which
justice, social, economic and political — shall inform all the institutions of
national life. It directs it to work for an egalitarian society where there is no
concentration of wealth, where there is plenty, where there is equal
opportunity for all, to education, to work, to livelihood, and where there is
social justice.”In Kesavananda Bharati vs. State of Kerala[(1973) 4 SCC 225],
the Supreme Court observed,“Parts III and IV which embody the fundamental
rights and directive principles of State policy have been described as the
conscience of the Constitution…. According to Granville Austin,directive
principles of State policy set forth the humanitarian socialist precepts that
were the aims of the Indian social revolution. Granville Austin, while summing
up the inter-relationship of fundamental rights and directive principles, says
that it is quite evident that the fundamental rights and the directive principles
were designed by the members of the Assembly to be the chief instruments in
bringing about the great reforms of the social revolution. He gives the answer
to the question whether they have helped to bring the Indian society closer to
the Constitution’s goal of social, economic and political justice for all in the
affirmative.”In summary, fundamental rights and directive principles
compliment each other - their goals are the same, that is to bring about a
social revolution so as to establish a Welfare State as envisaged in the
Preamble.

Differences between FUNDAMENTAL RIGHTS and DIRECTIVE PRINCIPLES

Sr.No. Fundamental Rights Directive Principles


1. Are enforceable. Are not enforceable – for purpose
of enforcement they require to be
incorporated into law.
2. Supreme Court or High Court Supreme Court or High Court
can declare as void a law in cannot declare as void a law in
violation of fundamental violation of directive principles.
rights.
3. Supreme Court or High Court Supreme Court or High Court
can compel the state to cannot compel the state to
implement fundamental implement directive principles.
rights.
4. Applicable to individuals. Applicable to society and
communities.
5. Deals with civil and political Deals with social, economic and
rights. cultural rights.
6. Contained in Part III of Contained in Part IV of
Constitution. Constitution.

As directive principles are not justiciable, they are qualified with the words
‘strive’, ‘take steps’, ‘endeavour’ and promote’, which denote that the state is
required to progressively secure the same by enacting legislation. The
progressive realisation of directive principles depends upon the economic
advancement of the Indian state. While holding in the negative that ‘right to
work’ falls within Article 21, the Supreme Court noted in Indian Drugs &
Pharmaceuticals Ltd. vs. Workmen[(2007) 1 SCC 408], “No doubt, Article 41
provides for the right to work, but this has been deliberately kept by the
Founding Fathers of our Constitution in the directive principles and hence
made unenforceable in view of Article 37, because the Founding Fathers in
their wisdom realised that while it was their wish that everyone should be
given employment, but the ground realities of our country cannot be
overlooked.In our opinion, Article 21 of the Constitution cannot be stretched
so far as to mean that everyone must be given a job. The number of available
jobs are limited, and hence courts must take a realistic view of the matter and
must exercise self-restraint.” Towards progressive realisation of the right to
work, the Central Government, in 2005, enacted the Mahatma Gandhi
National Rural Employment Guarantee Act.

At this stage it is important to make mention of Article 31C, Saving of laws


giving effect to certain directive principles, that was inserted by the
Constitution (Twenty-fifth Amendment) Act 1971. Article 31C states that no
law enacted to bring into force directive principles can be rendered void on the
ground that it contravenes Articles 14 and 19. Such legislation, though, may be
challenged before the courts to examine whether it gives effect to the directive
principle it alleges to enforce.

Article 38 : State to secure a social order for the promotion of welfare of the
people : ‘(1) The State shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which justice,
social, economic and political, shall inform all the institutions of the national
life. (2) The State shall, in particular, strive to minimise the inequalities in
income, and endeavour to eliminate inequalities in status, facilities and
opportunities, not only amongst individuals but also amongst groups of people
residing in different areas or engaged in different vocations.’
Article 38 confirms India to be a Welfare State – the state through its policies
and legislation is required to promote the well-being of the people. It also
reflects that in order to create a just society, the state authorities, including
the courts, should lean in favour of the weak. “The challenges in these writ
petitions compel us to remind ourselves that under our constitutional system
courts are havens of refuge for the toiler, not the exploiter, for the weaker
claimant of social justice, not the stronger pretender who seeks to sustain the
status quo ante by judicial writ in the name of fundamental right. No higher
duty or more solemn responsibility rests upon this Court than to uphold every
State measure that translates into living law the preambular promise of social
justice reiterated in Article 38 of the Constitution.” [Azad Rickshaw-Pullers’
Union (Regd.) vs. State of Punjab : 1980 Supp SCC 601]

Clause (2) of Article 38 indicates the socialist nature of the Indian state. It also
stresses on creation of an egalitarian society throughout the country in all
fields. It acknowledges the wide disparities amongst individuals, as also
amongst communities residing in different parts of the country and having
diverse inclination. Article 38 obligates the state to frame policies and enact
legislation to reduce this gap. For example, there is a growing belief that
industrialisation is the key to development because of which the agricultural
sector is facing neglect – Article 38 mandates that the focus should be upon
balanced development by encouraging both these sectors.

In continuation to Article 38, Article 39, through its seven clauses, especially
clauses (b) and (c), further depicts the Indian state’s socialist character.
Article 39 : Certain principles of policy to be followed by the State: ‘The State
shall, in particular, direct its policy towards securing—
(a) that the citizens, men and women equally, have the right to an
adequate means of livelihood;
(b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common
good;
(c) that the operation of the economic system does not result in the
concentration of wealth and means of production to the
common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and
the tender age of children are not abused and that citizens are
not forced by economic necessity to enter avocations unsuited to
their age or strength;
(f) that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and
against moral and material abandonment.’

Any action of the state should further the intent contained in clause (b) and (c),
namely, the equitable distribution of resources amongst the people. The
Supreme Court has described clauses (b) and (c) of Article 39 as “a futuristic
mandate to the State with a message of transformation of the economic and
social order” [State of Karnataka vs. Ranganatha Reddy : (1977) 4 SCC 471].

Objective of clause (b) is to ensure that the material resources of the


community are distributed amongst and for the interest of, the people. What is
understood by the phrase ‘material resources of the community’? To advance
its objective, a broad rather than narrow meaning should be given to the
words contained in clause (b). The expression ‘material resources of the
community’ is not confined to natural resources – it includes all resources,
whether natural or man-made, whether public or privately owned [Sanjeev
Coke Mfg. Co. vs. Bharat Coking Coal Ltd. : (1983) 1 SCC 147]. What is
understood by the phrase ‘distributed as best to subserve the common good’?
This phrase embodies the ‘principle of distributive justice’. Distributive justice
“connotes the removal of economic inequalities and rectifying the injustice
resulting from dealings or transactions between unequals in society” [Samatha
vs. State of Andhra Pradesh : (1997) 8 SCC 191]. Material resources cannot be
arbitrarily apportioned, they should be allocated for enjoyment by all. It is
important to keep in view that natural resources are limited, hence, the same
should be utilised for public purpose, and not in private interest. In Victorian
Granites (P) Ltd. vs. P. Rama Rao [(1996) 10 SCC 665], the Supreme Court
states, “Article 39(b) of the Constitution envisages that the State shall, in
particular, direct its policies towards securing that the ownership and control
of the material resources of the community are so distributed as best to
subserve the common good. Socio-economic justice is the arch of the
Constitution. The public resources are distributed to achieve that objective
since liberty and meaningful right of life are hedged with availability of
opportunities and resources to augment economic empowerment.” This
judgment negates legislation that depletes “the assets of the State for personal
benefit of the vested interests, defeating the constitutional objective behind
Article 39 (b) of the Constitution, the preamble and fundamental rights
enshrined in the Constitution.”

An example to better understand clause (b)– water and coal (natural resource)
is converted into electricity (material resource) by Brihanmumbai Electric
Supply & Transport Undertaking (public sector) or Reliance Energy (private
sector), but the end product should be distributed so as to benefit as many as
possible. To achieve such distribution, affordability and accessibility is
important, and not profits or revenue.

Clause (c) of Article 39 also promotes the concept of distributive justice.


‘Means of production’ includes the objects of production [natural resources
and raw materials] and instruments of production [machines and tools].
“According to Encyclopedia Americana (1970 Ed., Vol. 9, p. 600) ‘economic
systems are forms of social organization for producing goods and services and
determining how they will be distributed.’ ”[Kesavananda Bharati v. State of
Kerala (1973) 4 SCC 225]Clause (c) calls upon the state to legislate to ensure
that it is not the owner of the means of production, alone, who should profit –
the gain should be dispensed amongst the workers and the public in the form
of wages, taxes, etc.

What is a Welfare State and its nexus with Articles 38 and 39 is best
summarised in the words of the Supreme Court in Lala Ram vs. Union of India
[(2015) 5 SCC 813],“A welfare State denotes a concept of Government, in
which the State plays a key role in the protection and promotion of the
economic and social well being of all of its citizens, which may include
equitable distribution of wealth and equal opportunities and public
responsibilities for all those, who are unable to avail for themselves, minimal
provisions for a decent life. It refers to ‘greatest good of greatest number and
the benefit of all and the happiness of all’. It is important that public weal be
the commitment of the State, where the State is a welfare State. A welfare
State is under an obligation to prepare plans and devise beneficial schemes for
the good of the common people. Thus, the fundamental feature of a welfare
State is social insurance. Anti-poverty programmes and a system of personal
taxation are examples of certain aspects of a welfare State. A welfare State
provides State-sponsored aid for individuals from the cradle to the grave…A
welfare State is one, which seeks to ensure maximum happiness of maximum
number of people living within its territory. A welfare State must attempt to
provide all facilities for decent living, particularly to the poor, the weak, the old
and the disabled i.e. to all those, who admittedly belong to the weaker
sections of society. Articles 38 and 39 of the Constitution of India provide that
the State must strive to promote the welfare of the people of the State by
protecting all their economic, social and political rights. These rights may
cover, means of livelihood, health and the general well-being of all sections of
people in society, specially those of the young, the old, the women and the
relatively weaker sections of the society. These groups generally require
special protection measures in almost every set up. The happiness of the
people is the ultimate aim of a welfare State, and a welfare State would not
qualify as one, unless it strives to achieve the same.”