Aditya Marwah
in Constitutional Law
Asked September 02, 2014

Enforceability of Fundamental Rights

  • 2 Answers
  • 2018 Views

Against whom are the Fundamental Rights enforceable. Are DPSP and Fundamental Rights at the same pedestal?

Answers 2

Default avatar
Shreyashi
Thank you for the question! I shall answer it in two parts; I shall first answer the question on enforceability of Fundamental Rights (“FRs”) and then move on to the legal strength of the directive principles of state policy (“DPSPs”) Fundamental Rights are enforceable through writ petitions before the High Court and the Supreme Court, and against bodies that come in the ambit of the term “State” of Article 12 of the Constitution. This article lists bodies that are to be held as “State” for the purpose of Part III of the Constitution which includes the FRs. Although there is no clear indication as to the applicability of the rights only against the State, that has been the interpretation by the Judiciary [Mahendra P. Singh, V.N. Shukla’s Constitution of India, Eastern Book Company, 11th edition (2008), p. 24.]. To quote the article: “In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” While there have been no conflicts as to the interpretation of the first two clauses, viz. the Government and Parliament of India and the Government and Legislature of the States, the remaining bodies mentioned have been the subject of contention and debate. The interpretation has been widened over time by the judiciary. The expression “local authorities” refers to authorities like Municipalities, District Boards, Panchayats, Improvement Trusts, Port Trusts, Mining Settlement Boards, etc. [Mahendra P. Singh, V.N. Shukla’s Constitution of India, Eastern Book Company, 11th edition (2008), p. 25.] Let me now take you through the trajectory of cases which gradually broadened the ambit of the term “other authorities”. In a landmark judgment [Electricity Board, Rajasthan v. Mohan Lal, AIR 1967 SC 1857.] , the Supreme Court held that the phrase would include all authorities created by the Constitution or statute on whom powers are conferred by law; irrespective of whether the body has sovereign or governmental functions or not. By this, the court meant that even if the body’s functions are not those that only the government can indulge in, e.g. defence, it may be considered state as long as the following criteria are satisfied: they must be created by statutes, have the statutory power to make binding rules, regulations and directions, and were subject to deep and pervasive state control. According to this interpretation, “other authorities” would cover bodies created for the purpose of performing commercial activities or promoting the educational and economic interests of the weaker sections of the people, as well as bodies like ONGC, IFC and LIC. Statutory corporations were said to be “agencies” or “instrumentalities” of the State, i.e. bodies through which the State performed its functions rather than performing them through its departments. While there were no fixed criteria to determine the relationship of agency, factors like state funding and performance of public service would indicate the same. The case of Ajay Hasia v. Khalid Mujib [(1981) 1 SCC 722.] fleshed out a non-exhaustive list of criteria fulfilment of which would make a body an agency or instrumentality of the State: i) Holding of the entire share capital by the Government; ii) Provision of enough financial assistance of the State as to meet almost entire expenditure of the body; iii) Conferment or protection of monopoly status in any sector or area by the State; iv) Existence of deep and pervasive State control; v) Performance of functions of public importance that are closely related to State functions; vi) Transfer of govt. department to the corporation. In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology [(2002) 5 SCC 111] , the above test was declared to form the cornerstone for determination as to whether a certain body can be called “State”. The Supreme Court, in the case of M.C. Mehta v. Union of India [(1987) 1 SCC 395.] , advanced strong arguments for inclusion of even non-governmental bodies in the ambit of “State” if State control and regulation; and the kind of functions they perform; make it similar to a State agency or instrumentality. Some FRs can also be enforced against private individuals [Zee Telefilms Ltd. v. UOI, (2005) 4 SCC 649.]. For example, the judges in People’s Union for Democratic Rights v. UOI [(1982) 3 SCC 235.]opined that Article 23, which prohibits "traffic in human beings and begar and other similar forms of forced labour", is clearly designed to protect the individual not only against the State but also against other private citizens. This prohibition is intended to be a general prohibition, total in its effect and all pervasive in its range and it is enforceable not only against the State but also against any other person indulging in any such practice [(1982) 3 SCC 235.]. The words “under the control of the Government of India” indicate that even those authorities that function outside the territory of India are “State” as long as they are under the control of the govt. of India [Mahendra P. Singh, V.N. Shukla’s Constitution of India, Eastern Book Company, 11th edition (2008), p. 31]. The Judiciary may be brought into the ambit of “State” only in relation with its non-judicial functions (e.g. exercising its rule-making power or power to appoint court officers, etc.) and not its judicial functions [Mahendra P. Singh, V.N. Shukla’s Constitution of India, Eastern Book Company, 11th edition (2008), p. 32]. Although an aggrieved party may use the appellate mechanism against an order of the Court, a wrong determination by the Court cannot be dealt with as a violation of any FR- unless, of course, the power to perform any particular function is excluded or restricted by the Constitution or any other law [Mahendra P. Singh, V.N. Shukla’s Constitution of India, Eastern Book Company, 11th edition (2008), p. 32]. To summarise the above discussion, it may be said actions in pursuance of performance of functions of agencies or instrumentalities of the State, or functions similar or close to governmental functions, if violative of FRs, may be grounds for enforcement of the said rights in the High Court or Supreme Court. Next, I shall answer the second part of your question. Article 37 states that DPSPs are not enforceable in a court of law, but they are fundamental in the governance of the country. Therefore, while the enforcement of FRs is non-negotiable and non-derogable, the DPSPs are more aspirational in nature, even though there is recognition that they indicate what the State must aim for in its functioning. Non-adherence to the DPSPs does not have legal consequences; in fact, adherence to the same in derogation of the FRs is considered to be unconstitutional [State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.]. A sea change was brought into the relationship between the FR and the DPSPs by the 25th amendment to the Constitution, whereby Article 31C was inserted. It provided immunity from any challenge on the grounds of violation of Article 14 (Right to Equality), 19 (Right to Freedom) and 31 (Right to Property) of any law enacted for implementing the directives in clause (b) and (c) of Article 39 (DPSPs providing for equitable distribution of ownership and control of the material resources of the community to subserve the common good, and prevention of concentration of wealth and means of production to the common detriment). This immunity from judicial review was struck down as Constitutional by Kesavananda Bharati v. State of Kerala [AIR 1973 SC 1461.] since judicial review is part of the basic structure; the basic structure being a hypothetical set of features in the Constitution which are outside the powers of amendment and derogation. To clarify, the first part of the Article, which gave the Legislature the power to make laws in derogation of the Articles 14, 19 and 31, was upheld as Constitutional, but the part where such lawmaking was stated to be free from judicial review was struck down. Subsequently, the 42nd amendment changed the text of the article to include the following: “Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.” This implied that although Article 13 states that no law can be made which is in derogation of the FR, any law made in pursuance of the DPSPs can be questioned on grounds of violation of the Right to Equality or the Right to Freedom. Therefore, primacy was given to the DPSPs over certain very crucial FRs. To nullify the effect of the amendments, in Minerva Mills v. UOI [AIR 1980 SC 1789.], the Supreme Court said that harmony and balance between the two is an essential feature of the basic structure of the Constitution. The Court said that giving primacy to one over the other would violate the basic structure. It has been recognised that the FRs give rise to State obligation to ensure that civil and political rights are legally guaranteed, while the DPSPs formally state the importance of socio-economic rights without making the same binding on the Legislature and Executive by the Judiciary: thus maintaining the separation of powers of the three organs. However, it has often been argued that the two are supplementary and complementary, and equally important for the welfare of the country and its people. The recent trend by the Judiciary to read certain DPSP principles into the FRs (e.g. reading the principles of Articles 45 and 41 into Article 21, or the Right to Life and Personal Liberty, to create the legally enforceable “Right to Education” in the case of Unni Krishnan v. State of A.P. [AIR 1993 SC 2178.] ) indicates that the importance of enforceability of socio-economic rights is gradually being recognised by the law of the country.
Agree Comment 0 Agrees about 3 years ago

Default avatar
Shreyashi
Thank you for the question! I shall answer it in two parts; I shall first answer the question on enforceability of Fundamental Rights (“FRs”) and then move on to the legal strength of the directive principles of state policy (“DPSPs”) Fundamental Rights are enforceable through writ petitions before the High Court and the Supreme Court, and against bodies that come in the ambit of the term “State” of Article 12 of the Constitution. This article lists bodies that are to be held as “State” for the purpose of Part III of the Constitution which includes the FRs. Although there is no clear indication as to the applicability of the rights only against the State, that has been the interpretation by the Judiciary [Mahendra P. Singh, V.N. Shukla’s Constitution of India, Eastern Book Company, 11th edition (2008), p. 24.]. To quote the article: “In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” While there have been no conflicts as to the interpretation of the first two clauses, viz. the Government and Parliament of India and the Government and Legislature of the States, the remaining bodies mentioned have been the subject of contention and debate. The interpretation has been widened over time by the judiciary. The expression “local authorities” refers to authorities like Municipalities, District Boards, Panchayats, Improvement Trusts, Port Trusts, Mining Settlement Boards, etc. [Mahendra P. Singh, V.N. Shukla’s Constitution of India, Eastern Book Company, 11th edition (2008), p. 25.] Let me now take you through the trajectory of cases which gradually broadened the ambit of the term “other authorities”. In a landmark judgment [Electricity Board, Rajasthan v. Mohan Lal, AIR 1967 SC 1857.] , the Supreme Court held that the phrase would include all authorities created by the Constitution or statute on whom powers are conferred by law; irrespective of whether the body has sovereign or governmental functions or not. By this, the court meant that even if the body’s functions are not those that only the government can indulge in, e.g. defence, it may be considered state as long as the following criteria are satisfied: they must be created by statutes, have the statutory power to make binding rules, regulations and directions, and were subject to deep and pervasive state control. According to this interpretation, “other authorities” would cover bodies created for the purpose of performing commercial activities or promoting the educational and economic interests of the weaker sections of the people, as well as bodies like ONGC, IFC and LIC. Statutory corporations were said to be “agencies” or “instrumentalities” of the State, i.e. bodies through which the State performed its functions rather than performing them through its departments. While there were no fixed criteria to determine the relationship of agency, factors like state funding and performance of public service would indicate the same. The case of Ajay Hasia v. Khalid Mujib [(1981) 1 SCC 722.] fleshed out a non-exhaustive list of criteria fulfilment of which would make a body an agency or instrumentality of the State: i) Holding of the entire share capital by the Government; ii) Provision of enough financial assistance of the State as to meet almost entire expenditure of the body; iii) Conferment or protection of monopoly status in any sector or area by the State; iv) Existence of deep and pervasive State control; v) Performance of functions of public importance that are closely related to State functions; vi) Transfer of govt. department to the corporation. In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology [(2002) 5 SCC 111] , the above test was declared to form the cornerstone for determination as to whether a certain body can be called “State”. The Supreme Court, in the case of M.C. Mehta v. Union of India [(1987) 1 SCC 395.] , advanced strong arguments for inclusion of even non-governmental bodies in the ambit of “State” if State control and regulation; and the kind of functions they perform; make it similar to a State agency or instrumentality. Some FRs can also be enforced against private individuals [Zee Telefilms Ltd. v. UOI, (2005) 4 SCC 649.]. For example, the judges in People’s Union for Democratic Rights v. UOI [(1982) 3 SCC 235.]opined that Article 23, which prohibits "traffic in human beings and begar and other similar forms of forced labour", is clearly designed to protect the individual not only against the State but also against other private citizens. This prohibition is intended to be a general prohibition, total in its effect and all pervasive in its range and it is enforceable not only against the State but also against any other person indulging in any such practice [(1982) 3 SCC 235.]. The words “under the control of the Government of India” indicate that even those authorities that function outside the territory of India are “State” as long as they are under the control of the govt. of India [Mahendra P. Singh, V.N. Shukla’s Constitution of India, Eastern Book Company, 11th edition (2008), p. 31]. The Judiciary may be brought into the ambit of “State” only in relation with its non-judicial functions (e.g. exercising its rule-making power or power to appoint court officers, etc.) and not its judicial functions [Mahendra P. Singh, V.N. Shukla’s Constitution of India, Eastern Book Company, 11th edition (2008), p. 32]. Although an aggrieved party may use the appellate mechanism against an order of the Court, a wrong determination by the Court cannot be dealt with as a violation of any FR- unless, of course, the power to perform any particular function is excluded or restricted by the Constitution or any other law [Mahendra P. Singh, V.N. Shukla’s Constitution of India, Eastern Book Company, 11th edition (2008), p. 32]. To summarise the above discussion, it may be said actions in pursuance of performance of functions of agencies or instrumentalities of the State, or functions similar or close to governmental functions, if violative of FRs, may be grounds for enforcement of the said rights in the High Court or Supreme Court. Next, I shall answer the second part of your question. Article 37 states that DPSPs are not enforceable in a court of law, but they are fundamental in the governance of the country. Therefore, while the enforcement of FRs is non-negotiable and non-derogable, the DPSPs are more aspirational in nature, even though there is recognition that they indicate what the State must aim for in its functioning. Non-adherence to the DPSPs does not have legal consequences; in fact, adherence to the same in derogation of the FRs is considered to be unconstitutional [State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.]. A sea change was brought into the relationship between the FR and the DPSPs by the 25th amendment to the Constitution, whereby Article 31C was inserted. It provided immunity from any challenge on the grounds of violation of Article 14 (Right to Equality), 19 (Right to Freedom) and 31 (Right to Property) of any law enacted for implementing the directives in clause (b) and (c) of Article 39 (DPSPs providing for equitable distribution of ownership and control of the material resources of the community to subserve the common good, and prevention of concentration of wealth and means of production to the common detriment). This immunity from judicial review was struck down as Constitutional by Kesavananda Bharati v. State of Kerala [AIR 1973 SC 1461.] since judicial review is part of the basic structure; the basic structure being a hypothetical set of features in the Constitution which are outside the powers of amendment and derogation. To clarify, the first part of the Article, which gave the Legislature the power to make laws in derogation of the Articles 14, 19 and 31, was upheld as Constitutional, but the part where such lawmaking was stated to be free from judicial review was struck down. Subsequently, the 42nd amendment changed the text of the article to include the following: “Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.” This implied that although Article 13 states that no law can be made which is in derogation of the FR, any law made in pursuance of the DPSPs can be questioned on grounds of violation of the Right to Equality or the Right to Freedom. Therefore, primacy was given to the DPSPs over certain very crucial FRs. To nullify the effect of the amendments, in Minerva Mills v. UOI [AIR 1980 SC 1789.], the Supreme Court said that harmony and balance between the two is an essential feature of the basic structure of the Constitution. The Court said that giving primacy to one over the other would violate the basic structure. It has been recognised that the FRs give rise to State obligation to ensure that civil and political rights are legally guaranteed, while the DPSPs formally state the importance of socio-economic rights without making the same binding on the Legislature and Executive by the Judiciary: thus maintaining the separation of powers of the three organs. However, it has often been argued that the two are supplementary and complementary, and equally important for the welfare of the country and its people. The recent trend by the Judiciary to read certain DPSP principles into the FRs (e.g. reading the principles of Articles 45 and 41 into Article 21, or the Right to Life and Personal Liberty, to create the legally enforceable “Right to Education” in the case of Unni Krishnan v. State of A.P. [AIR 1993 SC 2178.] ) indicates that the importance of enforceability of socio-economic rights is gradually being recognised by the law of the country.
Agree Comment 0 Agrees about 3 years ago

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