Abhijeet PimparkarWhile the Preamble creates an idea of an ideal state, Part III, IV and VI A, taken together seeks to give shape that idea.
Part III of constitution gives certain fundamental rights to Indian citizens as well as non-citizens (aliens). The constitution divides these rights further into six categories. 1) right to equality, 2) right to life and liberty 3) right against exploitation 4) religious freedom 5) rights of minorities and 6) right to constitutional remedy.
1. Part III – Fundamental Rights in Brief
1.1 Right to Equality (Articles 14-18)
| Article 14: Right to equality Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth Article 16: Equality of opportunity in matters of public employment Article 17: Abolition of untouchability Article 18: Abolition of titles |
While the constitution establishes very high ideals for right to equality, in practice various complex issues surround the debate on this topic. The main areas of contestation include reservation policies, persisting caste discrimination, gender inequality, issues of religious and ethnic minorities, access to justice and economic inequality.
Affirmative action policies, such as caste-based reservations in education and employment, have been a contentious issue since independence. While aimed at addressing historical injustices and promoting social inclusion, it also raises concerns about perpetuating caste divisions, reverse discrimination, fairness in access to opportunities, and compromise on merit. The debate is still not settled. There is increasing reservation, first for OBCs and now for EWS, and we are witnessing increasing demand by various communities for reservation.
Despite constitutional guarantee, caste-based discrimination remains deeply entrenched in Indian society. Issues such as untouchability, caste-based violence, and social exclusion continue to affect millions of Dalits and marginalized communities, highlighting the gap between constitutional ideals and ground realities.
Despite legal provisions for gender equality, women in India still face various forms of discrimination and violence, including unequal access to education, employment, and property rights. In recent Sabarimala Temple Entry Case (2018), Supreme Court, lifted the ban on the entry of women of menstruating age (10-50 years) into the Sabarimala temple in Kerala. The court held that the ban on women’s entry into the temple violated their fundamental rights to equality and freedom of religion.
In another instance, in Shayara Bano v. Union of India (2017) case, the Supreme Court declared the practice of instant triple talaq (talaq-e-biddat) unconstitutional, stating that it violated the fundamental rights of Muslim women, including the right to equality and dignity. The court held that triple talaq was arbitrary and discriminatory and struck it down as illegal and void.
To conclude, despite the progress made through landmark judgments, legislative reforms, and social movements, challenges persist in translating constitutional ideals into tangible realities for all citizens. However, the judiciary’s proactive role in interpreting and safeguarding these fundamental rights, offer hope for a more equitable and just society. Moving forward, it is essential to foster greater awareness, dialogue, and collective action to bridge the gap between constitutional principles and lived experiences. This will ensure that every individual can truly enjoy the fruits of equality and dignity as envisioned by the framers of the Indian Constitution.
1.2 Right to Freedom (Articles 19-22)
| Article 19: Protection of certain rights regarding freedom of speech, etc. Article 20: Protection in respect of conviction for offenses Article 21: Protection of life and personal liberty Article 21 A: Right to Education Article 22: Protection against arrest and detention in certain cases |
Article 19 i.e. freedom of speech and expression is considered as the most essential pre-requisite for a functioning democracy. This right also includes freedom of the press.
However, it should also be noted that this is not an absolute right. Constitution imposes several ‘reasonable restrictions’ in exercise of these rights.
One of the most contested issues under freedom of speech and expression is contempt of court. While the power has been accorded to the court to protect the dignity of the institution, the court serves as both the aggrieved party and the adjudicator, leading to questions about impartiality and fairness. The case for contempt leaves a wide room for subjective interpretation and can result in inconsistent enforcement and punishments. This can have a chilling effect on free speech and weaken democratic principles of transparency and accountability. In the recent Prashant Bhushan Case (2020), senior advocate Prashant Bhushan was found guilty of contempt of court for his tweets criticizing the Supreme Court. While the fine was nominal one rupee, it certainly sets a bad precedent.
Thus, while contempt laws serve a legitimate purpose, there is a need for reform to ensure they are not misused. This can be done by defining the contempt, and providing procedural safeguards.
Other issues under Article 19 include hate speech, defamation, regulation of media and online content, political speech, academic freedom etc.
Article 20 talks about protection in respect of conviction of offences.
Article 21, which talks about right to life and personal liberty, presents an interesting case of judicial interpretation of Indian constitution. Over a period of time, the judiciary have widely interpreted Article 21, so that it now includes a whole gamut of right under it. It includes, inter-alia, right to rehabilitation, right to clean environment, right to privacy, right to speedy trial, and even rights of the animals.
The ongoing debates on this article revolve around the issues of death penalty, right to end one’s life (euthanasia), custodial deaths and extrajudicial killings, right to privacy etc.
Article 21 A, right to education, was inserted by the eighty sixth constitutional amendment in 2002.
Article 22, which provides for preventive detention is criticized as a blot on Indian constitution. Pt. Nehru promised that there shall be no black law in Indian constitution. However, the provision of arbitrary detention, undermines civil liberty and is often misused for political purposes.
1.3 Right against Exploitation (Articles 23-24)
| Article 23: Prohibition of traffic in human beings and forced labor Article 24: Prohibition of employment of children in factories, etc. |
These rights aim to protect individuals from various forms of exploitation and ensure their dignity and well-being. However, several issues and challenges surround the effective implementation of these provisions. It includes bonded labour among marginalized communities, human trafficking, child labour, debt labour, exploitation of women and Dalits etc.
1.4 Right to Freedom of Religion (Articles 25-28)
| Article 25: Freedom of conscience and free profession, practice, and propagation of religion Article 26: Freedom to manage religious affairs Article 27: Freedom as to payment of taxes for promotion of any particular religion Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions |
While constitution sets a high bar when it comes to religious freedom, we witness many conflicts in day-to-day social life. The issues surrounding religious freedom include forced conversions, inter-religious marriages, state intervention in religious practices (Sabarimala case, triple talaq etc.), freedom of expression conflicting with religious sensitivities, Uniform Civil Code etc.
1.5 Cultural and Educational Rights (Articles 29-30)
| Article 29: Protection of interests of minorities Article 30: Right of minorities to establish and administer educational institutions |
1.6 Right to Constitutional Remedies (Article 32)
| Article 32: Right to Constitutional Remedies |
Providing for the enforcement of fundamental rights, Dr. Ambedkar described Art 32 as the very heart and soul of the constitution.
2. Comments on Fundamental Rights
In the words of Justice Bhagwati, “These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a ‘pattern of guarantee’ on the basic structure of human rights and impose negative obligations on the State not to encroach on individual liberty in its various dimensions”.
Over period of time, Supreme Court have taken a stand that fundamental rights are not only ‘negative’ i.e. only puts limitations on state, but also have a ‘positive’ content. Thus, fundamental rights also put certain responsibilities on the state. This has become the basis of judicial activism, with public interest litigation (PIL) as a by-product.
Criticism of Fundamental Rights
Somnath Lahiri, on the issue of limitations imposed on fundamental rights, commented that “I feel that many of these fundamental rights have been framed from the point of view of a police constable… you will find that very minimum rights have been conceded and are almost invariably followed by a proviso. Almost every article is followed by a proviso which takes away the right almost completely.”
3. Part IV – Directive Principles of State Policy
The part IV Indian constitution (articles 36-51) lays down certain Directive Principles of State Policy. Although not justiciable, meaning they cannot be enforced by the courts, they are ‘fundamental in governance of the country’, and it is the duty of the State to apply these principles in making laws.
These principles guide the state in promoting social and economic welfare. Various guidelines mentioned in these directive principles impose on state – ensuring adequate means of livelihood, equal pay, and protection against exploitation, free legal aid, village panchayats, right to work and education, humane working conditions, worker participation in management etc. Further, DPSPs call for a uniform civil code, early childhood care, upliftment of weaker sections, environmental protection, preservation of national heritage, and ultimately ask the state to contribute towards international peace.
The inclusion of all these socio-economic rights under part IVA came as a disappointment to some members of constituent assembly. Because DPSPs are not legally enforceable, it undermines the authority of constitution. There should not be any non-enforceable part in the constitution as it creates scope for discretion, and also becomes problematic for judiciary. It also limits the choice of future governments with respect to the formulation of policies, and in certain ways, DPSPs also undermine federalism since some of the DPSPs contains subjects which are also part of the state list (e.g. public health, education, village panchayat, agriculture etc.)
3.1 Working of Directive Principles
While these provisions are non-justiciable, it was thought that the moral force behind these guidelines will ensure that the government would take them seriously. Further, it was also expected that people would also hold government responsible for implementing these directives. In essence, these Directive Principles can be said to contain three things: 1) The goal and objectives that we as a society should adopt; 2) Certain rights that individuals should enjoy apart from fundamental rights; 3) Certain policies that government should adopt.
We can give following instances where the stated made some policy decision, giving effect to directive principles.
Right to Education Act, 2009: DPSP (Article 45), provides for free and compulsory education for all children until they complete the age of 14 years. The Right to Education Act mandates free and compulsory education for children between the ages of 6 and 14.
Similarly, DPSP (Article 47) directs the state to raise the level of nutrition and the standard of living and to improve public health. To give effect to this provision, National Food Security Act, 2013 was passed. The act aims to provide subsidized food grains to approximately two-thirds of India’s population.
We can also give instance of MGNREGA Act 2005, which guarantees 100 days of wage employment per year to rural households and tries to implement Article 41, which asks the state to provide right to work and public assistance in cases of unemployment.
4. Part IV A – Fundamental Duties
The Fundamental Duties of citizens in India, as outlined in Article 51A of the Constitution, are as follows:
| a. To abide by the Constitution and respect its ideals and institutions, the National Flag, and the National Anthem. b. To cherish and follow the noble ideals that inspired the national struggle for freedom. c. To uphold and protect the sovereignty, unity, and integrity of India. d. To defend the country and render national service when called upon to do so. e. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities; to renounce practices derogatory to the dignity of women. f. To value and preserve the rich heritage of our composite culture. g. To protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures. h. To develop the scientific temper, humanism, and the spirit of inquiry and reform. i. To safeguard public property and to abjure violence. j. To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement. k. To provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years. |
These fundamental duties were added to the Constitution by the 42nd Amendment Act in 1976, aimed at promoting a sense of responsibility and patriotism among citizens. While the last duty (k) was added by the 86th Amendment Act in 2002 (Right to Education).
4.1 Criticism of Fundamental duties.
- It is a feature of socialist countries.
- In liberal countries, the purpose of constitution is to put limit on govt.
- It is also non-enforceable and hence problematic.
- Fundamental duties had not made any change in the quality of citizens in India.
- Fundamental duties are vaguely worded.
- It is not clear how citizens will develop ‘scientific temper’ without basic education.
- It was not a part of original constitution.
4.2 Relationship between Fundamental Rights and Directive Principles.
There is an interesting relation between these two parts of the constitution, which have been written down next to one another. The fundamental rights are justiciable and enforceable by the courts, meaning individuals can seek judicial remedies if these rights are violated. In contrast, DPSPs are non-justiciable, meaning they are not enforceable by any court. Apart from legal status, there is also ideological difference between these provisions. While the fundamental rights belong to the school of liberalism, the directive principles, which seek to give voice to socio-economic rights, belong to the school of socialism. While Part III seeks to protect individual freedoms, part IV focuses on collective welfare. Consequently, there have been conflict between fundamental rights and directive principles since the formation of constitution.
4.3 Judicial Interpretation
Often, an attempt to give effect to directive principles, contradicts with fundamental rights. This results in judicial intervention. We can trace out the following pattern in Supreme Court judgements in this regard.
In Champakam Dorairajan Case (1951), supreme court ruled that fundamental rights would prevail over DPSPs in case of conflict. In this case, the supreme court held that the communal reservation order of the Madras government was unconstitutional as it violated the fundamental rights of the petitioner.
Later, in Sajjan Singh case (1965), court upheld the power of Parliament to amend any part of the Constitution, including Fundamental Rights. This was however overturned in 1967, when in Golak Nath case, supreme court held that parliament could not amend fundamental rights to abrogate them, giving them a higher status over DPSPs.
In the landmark decision in Kesavananda Bharati case (1973), supreme court introduced the doctrine of the “basic structure” of the Constitution. It ruled that parliament could amend any part of the Constitution but could not alter its basic structure. This case struck a balance between fundamental rights and DPSPs, emphasizing that both sets of principles are essential.
In Minerva Mills Case (1980), the court reaffirmed the importance of the balance between Fundamental Rights and DPSPs, ruling that a harmonious interpretation was necessary, and neither could undermine the other.
It was realized that political democracy without social and economic is a contradiction. Thus, one cannot be sacrificed at the cost of other. Directive principles were not given immediate effect, not because they were not important but because country lacked resources, if given the status of enforceable rights and govt. unable to enforce it, it would create constitutional crisis.
4.4 Views of KC Markandan
KC Markandan suggests that this conflict between fundamental rights and DPSPs is artificial. Trying to elaborate on the intention of constitution makers, he suggests that if the conflict between these two parts was so obvious, why did the constituent assembly at all put these in this fashion. Why there was right to property as fundamental right in one hand, while the DPSPs ask the state to ensure that material resources so distributed as best to subserve the common good.
Markandan argues that the constituent assembly expected that when the state chose to implement DPSPs, the judiciary would allow the government to discharge its constitutional function, instead of asserting its own right to enforce fundamental rights. He suggests that in fact Part III and IV originally belonged to the same list and based on (1) whether these could be assured to the citizens (hence enforceable) and (2) difficult to ensure (hence impractical to be legally enforced), they were classified as fundamental rights and directive principles.
Further, it is also argued that directive principles rare in fact, more important than fundamental rights. This is so, because while the former are concerned with rights of society as a whole, against the latter which only talks about individual rights.
Thus, KC Markandan blames Indian judiciary for interpreting the constitution, contrary to the intention of founding fathers. For him, the framers of Indian constitution saw no incongruity, nor any possibility of conflict between parts III and IV of the constitution. The constitutions makers envisioned that the three organs of the state will work together, and the judiciary will enforce fundamental rights, so long it does not conflict with directive principles. The reality has been different.
4.5 Way Out
Gandhian school of thought suggests that DPSPs reflect the socio-economic justice principles espoused by Mahatma Gandhi and should be given priority to achieve a welfare state. On the other hand, the advocates of individual liberties stress the primacy of Fundamental Rights, arguing that they form the core of democratic freedom and must be protected against state encroachment.
While the courts have evolved the doctrine of harmonious construction, the Parliament can enact laws and amend the Constitution to clarify the relationship between the two contesting provisions of Indian constitution.
5. A Note on Right to Property
Initially, the Right to Property was a Fundamental Right under article 19(1)(f), guaranteeing all citizens the right to acquire, hold, and dispose of property. Further, article 31 provided protection against the compulsory acquisition of property by the state. It ensured that property could be taken only for public purposes and required the payment of compensation.
Over a period of time, the conflict arose when state tried to bring land reforms. These reforms violated the right to property. This led to a long battle, where the government claimed that rights can be compromised to give effect to directive principles whereas court held that the fundamental rights cannot be limited.
This conflict was solved by the 44th Amendment, passed in 1978. The amendment removed the right to property from the list of fundamental rights articles 19(1)(f) and Article 31 were repealed. The right to property was transferred to a legal right under Article 300A, which states that no person shall be deprived of his property except by authority of law. This change made the right non-justiciable under the scope of Fundamental Rights but still protected it as a constitutional right (since it’s mentioned in constitution).
[*In addition to content given under this topic, also refer to the topic of Evolution of Basic Structure Doctrine to understand the debate between fundamental rights and directive principles.]
