Page 1
NameāPooja Kumari Vaishnav
ClassāLL.B II year (Semester III)
KidāK23647
Sub Themeā
Sub Titleā'The importance of fundamental rights and fundamental duties in
upholding India's democratic values'
Mobile Number--8094676694
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The Importance of Fundamental Rights and Duties in Upholding India's Democratic Values - P, Thesis of Research Methodology
A research project written by pooja kumari vaishnav, an ll.b ii year student, exploring the relationship between fundamental rights and directive principles of state policy (dpsp) in the indian constitution. The author discusses the differences and similarities between the two, their power and enforceability, and how they contribute to good governance and societal equality. The project also includes case studies and research questions.
Typology: Thesis
2023/2024
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NameāPooja Kumari Vaishnav ClassāLL.B II year (Semester III) KidāK Sub Themeā Sub Titleā'The importance of fundamental rights and fundamental duties in upholding India's democratic values' Mobile Number--
CAREER POINT LAW UNIVERSITY, KOTA
Submitted for the internal assessment for the course of LLBā Third Semester Academic Year: 2022-
SUBJECT: CONSTITUTIONAL LAW
'The importance of fundamental rights and fundamental duties in upholding India's
democratic values'
SUBMITTED BY :POOJA KUMARI VAISHNAV SUBMITTED TO :-----------------------------------------
SEPTEMBERā 2023
ACKNOWLEGMENT Signature of Student Remarks: ( if any )
TABLE OF CONTENTS
- 1 INTRODUCTION(CHAPTER 1) 8- S.NO Index PG NO.,
- 2 CHAPTER 2 11-
- 3 CHAPTER 2.1 15-
- 4 CHAPTER 2.2 17-
- 5 CHAPTER 3 19-
- 6 CHAPTER 4 22-
- 7 CHAPTER 5 (CONCLUSION)
- 8 REFERENCES 25-
been
explained very clearly with relevant case laws which gives us the clear understanding how did the principles evolved from the constitution we can know the intent of framers and in what perspective this constitution was prepared from this book.
Research questions:
- Whether fundamental rights have absolute primacy over DPSP?
- Whether doctrine of harmonious construction will be able to strike balance between them?
- Whether the aim of both DPSP and fundamental rights co-inside together?
embracing the concept of "Natural law" from the time immemorial , and also it is important to note that this notion of "Natural law" has been widely accepted by "CJ Subba Rao" he states that " The concept of Fundamental rights is rooted in the idea of natural law" , this Natural law functions in the society , so as there is a change in society absolutely we can expect change in the "Natural law" as well. , for instance this concept has been dealt in the case of "Keshavanananda V. State of Kerala" in very detail manner , the explanation given here is that they are the type of "rights which ensure a way of good life and are not inappropriate to the person", as a result of this the "Fundamental rights" are the natural rights and this is the sole reason for our constitution recognition which makes it a fully fledged code. The drawback of Natural rights theory is that they can be limited by putting up restrictions but cannot be abrogated , for example ; During the emergency times they are not available , and the noteworthy thing is that makers of the constitution allowed the restrictions , and in the decision of "ADM Jabalpur case" it was viewed from the perspective of the man made law i.e. "law made by state to protect the individual" , "Justice Ray held that they are social rights which are sanctioned by our constitution since it is sanctioned by our constitution nothing is above the constitution i.e. source of its power itself is the constitution" and another Judge "Justice Khanna holds that Right to life and Liberty are not the gifts of the constitution in the same way Fundamental rights are also not the gifts of the constitution". DPSP ; India is a vast country changes which are taking place for its advancements are to be seen from not only polity aspects but also from the socio welfare aspects also mainly the leadership qualities and if we take DPSP it has all the qualities which are mentioned above. DPSP is more like the leadership which has its own components , leadership in normal sense is that the group of persons who are influence by him are guided by him and there is a difference between a normal and creative one , and this DPSP falls under the category of creative why because it has so much of welfare policies that if it is implemented today to the full extent then it would take our country to the edge over others. They may use the local or other resources from outside , these are the ideas which were influenced from the long full fledged freedom struggle which gave the basic notion of these
principles to be enumerated in the document. Unfortunately it is mentioned in the constitution that DPSP are not enforceable by courts. For instance if we take the example of the SC in USA their intent for the policies which direct them are well justified in the form of "federal structure" because they are involved in making the policies for the public and also it is considered as the integral of the political process of communities in large , and also it not merely interprets the statues as the Indian SC does, the judges there are significantly very influential group of persons , and this nature of collictevity have made them so powerful , as we talk about India which has still the influence of the Colonial systems which stays itself away from the society i.e. law and social mainstream is still dominant and if the policies has to be implemented by courts for the welfare it is of the dire need of changing in the intent of the law guardians and intrepretatores and SC should be free to embrace the "Societal assessment". If we look at our DPSP we can break into 3 points mainly , they are the ideas taken from the west i.e. "liberal humanitarian tradition". The ideas which arose as a result of the problems and hard state faced by Indians. Most importantly is that the fusion of tradition & modern way of living and thinking. These policies are not final , they can be changed as per the requirements , and if we take the "Art 39 a and Art 43" they are so much broad that they can be induced in any of the 3 points mentioned above. The above mentioned 3 points shows that not the hurdles faced by the society in India , but also the ideals of the framers who wanted to bring the ideas related to humanitarian , which was the result of the problems faced by the west long before the India faced , and also these notions are not simply introduced they went past the various methods of trial and error then only they were introduced , the 2nd point talks about the hurdles faced in India and as a result of that many ideas were included and the 3rd point talks about the differentiate in the thinking i.e. ideology and how to implement that one , our "1ST PM Pandit Jawaharlal Nehru" in this regard made considerable attempts i.e. we can see the "industrializationā at that time , decentralization , ideas related to co operatives"
CASE LAWS;
ļ Here the 1st case regarding the relation between the Fundamental rights and DPSP "State of Madras V. Sm. Champakam Dorairajan. , so here the issue was of the Government order which said that the fixation of the seats for the certain communities in Medical and engineering collages , and the contention was of that it was creating the divide for the sake of admission to the educational institutions based on caste , creed religion which is against "Article 29(2) of the Indian constitution" and also we can see here that "Article 46 of DPSP" propagates the upliftement of the backward classes i.e. education and also in terms of economy , and this Government order was in compliance to protect these interest of the backward classes which was prevalent in region of madras , and here in this particular case the court gave its opinion based on "Article 37 which declares that DPSP are not enforceable in the courts" means that they have no power to surpass the other provision in the Indian constitution especially the "Fundamental rights which are sacrosanct" and these DPSP has to be move as subsidiary to the "Fundamental rights". The stance which court has taken in this particular case can be break down into 2 points ; The 1st thing to note is that after math of the independence there was no time for SC to look into its power of policy formulating and it simply relied on the power structure left by colonials. The 2nd thing is that the wordings in the "Article 13 and Article 37" are very much strait forward and give the readers the clear meaning that the DPSP is not superior to the Fundamental rights and has to move as subsidiary to it , no other option , so the court had to take no risk and it interpreted the plain meaning of the text and it was not an obligation for the court to create a new meaning or establish a new kind of relationship between them . ļ In this case there was established relation by court with regard to equality and inequality , it is mainly related the issue of "Zamindari abolition" by the state , here it was contended that since the abolishment is against the fundamental rights it was violative in nature , and
at the same time it was referred to the court referred to the "Article 39 which propagates the distribution of material resources for the common good". Here the court faced the problem of how to balance both of these advanced argument , and if we see normally the "Fundamental rights" are given upper hand not DPSP , and the court analysed it in such a manner that "If it was for the public good and public purpose can such legislation go above the Fundamental rights "? And the opinion of the court was since it was for the purpose of the public this legislation is valid. The reason given was , the concentration of the land holdings among the few people will lead to mobilization of the resources within those and since the state is liable to distribute the resources equally i.e. "Equality for all" it is bound to look serving the greater interest of the common people rather than the few people , and land holdings among the few people i.e. Rich will get Rich , and these land holdings if equally distributed they will lead to sustainment of the communities and the poor will also get the resources. The courts started to look into the concepts of the "Reasonableness and Public opinion" from the above mentioned case , and also they started to focus more on the DPSP. Even though the wordings in the "Article 37" the courts started to give more stress on DPSP , and all this was due to the effort of the much acclaimed "Doctrine of Harmonious construction" which propounds to find a balance between these two i.e. if there is any clash between the 2 provisions then they have to be read with in consonance with each other, which tells the balancing between the contention of the claims. ļ In Re: The Kerala Education Bill, ... vs Unknown on 22 May, 1958 In this case the "Doctrine of Harmonious construction" was also made , so what happened in this case was that the schools in the Kerala did not take the fees from the primary school children and in turn they told that their loos would be compensated by the "Grants of the government" and the SC told that this was pure contravention of the "Article 30(1) of the Indian constitution" and it was contended that "Article 45 says that the state shall endeavour to provide within 10 years from the commencement of the constitution free and compulsory education" and state can do this through government aided schools , and nothing would
CHAPTER 2.1;
IN TERMS OF CHILD LABOUR ;
The children are not just the tools to yield for the profit of people they are the future of the nation and their rights , needs are to protect them not just in pen and paper. The future of the country i.e. development in every spheres. We all know that India is the signatory of "Deceleration of the rights of the child" It mainly aims to protect the interest of the child i.e. from employing them to do works , enforcement of punishments for "child labour" etc. , and many of the International organizations have also gone a long way in rectifying the condition of the children , one thing to note is that "Article 51 C" of our constitution has binding on this declaration. Now if we talk about the position in India , it has been mentioned in both of the provisions i.e. "DPSP and Fundamental rights" under Article 24 and Article 39 , and there are many legislations regarding the same also , for example "Child labour Act 1986" and the important point here is that during 1936 British had passed one act regarding the same and its stand was vey clear to abolish the "Child labour" but the 1986 act just prohibits the "Child labour" and the reason is of "Economic necessity" , now we can see here that how DPSP and Fundamental rights go hand in hand in terms of Child labour. We all know the earlier position about DPSP they were not justifiable by the courts , but the court in order to give importance to the "directives" held that Parliament has the authority to bring changes in the constitution to give the equal status to DPSP on par with fundamental rights so that it could be easy for the states for its implementation , and the condition was that as far as basic structure is concerned it should not be harmed. Now its been more like the "Judicial directives", earlier the makers did not make it mandatory for justification because the states had less resources , and now the situation has changed they cannot always tell, the same reason i.e. economic grounds for not implementing this , the state is "Judicially accountable" for not implementing such kind of "welfare scheme".
The notion of child labour not only co insides under the "Art 23 and 24" but also comes under "Right to life" in terms of "dignified life" the children are 1stly humans and then labourer so they should be looked after with care and protection not with indecency , and in the case of " Bandhua mukti morcha V. Union of India Justice Bhagawathi made a remark that the Dignity of human must also the children of the small age against the atrocities and there must be a healthy environment for them to foster their all round development i.e. in the field of health , education , and considerable freedom and all these are the average facilities that must be given at any cost and these cant be denied at any cost". In another case it was held that the wellness of the children s are very vital for the all round development and rapid growth of the communities as a whole and it is important to look after health i.e. mental , in terms of physique etc. The hazardous work like construction and all are banned for the "children of age of 14yearsāāWe can see here the overlap between the other provisions also , i.e. "Right to Education" how it helps to mitigate the child labour and also how it corresponds to the directives i.e. by introduction of "Compulsory education there will be less chances of child labour because they will all be indulged in the education and it is the duty of the government to convey the benefits of the education and introduction of ""Poverty alleviation programmes" if all these are done then only the directives can be achieved , so this is how Fundamental rights and DPSP coincide in the matter child labour , because there is a clear overlap of so many articles.
terms of income bought the ā44th^ CAA in 1978ā. Here one can see that how the fundamental right was diluted in order to give importance to the principles enshrined in āDPSPā and also preamble. CASE LAW; ā Land owners v state ā the issue in this case what was about the road widening i.e. it was a smaller road and later it was turned into state highway and contention here was no re- imbursements or money was given in turn for land acquisition. It was the duty of the concerned authorities to acquire the land through ādue process of lawā i.e. even through it was not under fundamental rights a legal procedure has to be followed. Since now itās a ā constitutional rightā 79 the plaintiffs can claim compensation and approach the court also in this regarding.āart300Aā. The point in this case is if the scenario was entirely different i.e. if this ā right to propertyā was under fundamental rights then this whole case would have changed first of all the government would have got no rights to take lands as per their wish and if taken it was violation of fundamental rights even if government is taking lands for social welfare of the people then also under that scenario it would not been possible to do so it is like one persons personal interest affecting the welfare of the society as a whole as a result of all these consequences it was reduced to the status of constitutional right from fundamental rights.
CHAPTER 3;
Socialist angle; INDIA BEING A "WELFARE STATE" it has its own responsibilities towards is citizens to give them a dignified social life , and also the security and the source to the power for these social measures are the DPSP , as we see preamble also we can know that preamble also mentions about this not only DPSP and preamble but also Fundamental rights and also it is an inalienable part of our constitution , it preaches to provide the rights like ,"Right to education , Dignified life , Education , Liveable condition , and also to provide the children with the basic nutrients and protection for the development of the nation as a whole. If we take the example of the "Labour class" they are not getting the average wages , the working conditions are not feasible for them , in this sphere the state has failed to provide the directives mentioned in the DPSP , this has to be improved in the coming days. The "Preamble of the constitution" if we look at it carefully it propagates for the creating the "Socialist State" and it not only propagates but it is also the collection of the "SOCIAL SECURITY MEASURES" and these are further mentioned in detail in DPSP which has the same motive. The SC is also of opinion that the ultimate motive of the "Socialism" is to ensure that all the people are equal , enjoying the decent life and these can be made into reality via DPSP , For example; "Article 39 which says that equal rights to adequate means of lively hood to every citizens , prevention of concentration of wealth , material sources distribution should take place equally" , "Article 41 which provides for the education , right to work etc." 87 Like this many Articles in the DPSP promote the same. One should note that being non justifiable by the courts , they are the foundation for many of the Social security measures , and also based on that many laws have been introduced also.