CONSTITUTIONAL LAW/HUMAN RIGHTS

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The Statics and the Dynamics of the Fundamental Rights and the Directives Principles - A Human Rights Perspective†
by Mahendra P. Singh††

Cite as : (2003) 5 SCC (Jour) 1

The Directive Principles of State Policy represent a dynamic move towards a certain objective. The Fundamental Rights represent something static, to preserve certain rights which exist. Both again are right. - Jawaharlal Nehru*

Setting the stage

The Fundamental Rights (FRs) and the Directive Principles of State Policy (DPs) in the Constitution of India are the products of human rights movement. Roughly they represent the two streams in the evolution of human rights, which divide them into the so-called negative and positive or civil and political and social and economic rights respectively.1 More exactly, justiciability is the basis of division between them. The FRs are justiciable, while the DPs are not. It is this difference which initially led the Supreme Court to hold that "the directive principles ... have to conform to and run as subsidiary to the chapter of fundamental rights".2 This position was disapproved through constitutional changes,3 juristic writings4 and subsequent judicial decisions.5 Finally, the Court held that "harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution".6

Doubts have, however, been expressed and arise whether DPs hold the same status in the Constitution as the FRs. The most elaborate expression of such doubts finds place in the monumental work of H.M. Seervai.7 He agrees with the initial position taken by the Court and disapproves subsequent efforts to raise the DPs to the position of equality with the FRs. He revives the old argument that the non-justiciability of DPs excludes them from the category of law and, therefore, from the category of constitutional law.8 The DPs, according to him, are in the Constitution but not a part of it. From this he concludes that nothing would have happened if DPs "had been struck out of the Constitution", but if FRs "had not been enacted or struck out, the result would have been disaster".9 True to his style, he gives all possible arguments in support of his views. Some of them will be dealt with subsequently in this paper.

The other two cases of doubt about the position of DPs in the Constitution are not so explicit; they are merely implicit and have to be deduced from the processes of development in law. Firstly, for quite some time a process of incorporation of DPs into the FRs through judicial interpretation has been on. In this process quite a few DPs have been read or converted into the FRs. Consequently, attention from those DPs has shifted to the FRs. This process has started with all good intentions on the part of the judiciary of enforcing the DPs, which the legislature and the executive have failed to do. This process expands the base and content of enforceable FRs as opposed to the non-enforceable DPs. But the mere fact that the courts are unable to do anything about the DPs so long as they are DPs, but could enforce them if they were FRs, points out in the direction of ineffectiveness, if not inferiority, of the DPs. Secondly, following the first, a process of explicitly shifting those DPs to the chapter on FRs, which have been incorporated among the FRs through constitutional amendments has been set in. The Constitution (Eighty-sixth Amendment) Act, 2002 has already inserted the right to education among the FRs on the lines of directive principle in Article 45 which the Court had earlier incorporated among the FRs through its interpretation.10 Among others, the National Commission to Review the Working of the Constitution has recommended conversion of some other DPs into FRs.11 In this process, of course, some of the DPs, which are non-justiciable, get converted into justiciable FRs. But this selective transfer of important DPs to the FRs implies not only the primacy of the FRs over the DPs but also further weakens the position of DPs. Slowly DPs will be left only with those provisions which do not require immediate attention or matter much. This disturbs the balance between the FRs and DPs, which the Court has held as one of the basic features of the Constitution in Minerva Mills6. Indirectly, therefore, it goes against the basic structure of the Constitution. Such amendments must, therefore, fall foul of the basic structure doctrine.

Dealing with the issues

Let us first deal with some of the points raised by Seervai. He may be technically correct that judicial non-enforceability of DPs reduces their weight against the judicially enforceable FRs inasmuch as judicial relief may be sought against the violation of the latter while it cannot be sought against the violation of the former. But for that reason alone DPs do not cease to be either the law or part of the Constitution. Firstly, several other provisions in the Constitution also exclude some matters from the purview of the courts, which Seervai does not cite as examples of not being law or part of the Constitution.12 Secondly, the courts also decline to entertain constitutional issues on the ground of self-imposed limitation of justiciability. They may call them political or other questions for declining jurisdiction but they do not say that they are not constitutional questions and cease to be part of the Constitution because the courts find them unsuitable for judicial determination. Thirdly, a few FRs by their very nature are judicially unenforceable unless suitable laws are made in support of them.13 Finally, the question whether DPs are law has already been discussed in the legal literature and has already been disposed of and practised without any doubt that the DPs are as much a part of the Constitution and constitutional law as the FRs. As a matter of fact, it was never a serious issue and raising or reviving it now serves no useful purpose. It will suffice to say that the definitions of law quoted by Seervai in his support are not conclusive. "For a French or for a German lawyer", says Davis "the law has become something similar to dharma for a Hindu".14 The law, in his words, "comprises all rules which aim at the organisation and smooth running of society and not only these, amongst such rules, that may be invoked before a court or enforced by the courts".15 Similarly, a constitution is not merely what Marshall said in Marbury v. Madison16 "Broadly speaking, a constitution is a set of rules, principles, and understandings about how a country will be governed."17 It also formulates "basic rights and freedoms and other fundamental values of the community".18 Again, "a constitution enables as well as disables the Government, and there is nothing determinate that, by its very nature, it must prescribe or proscribe".19 Nor do the formal features of a constitution "in themselves explain why a constitution should have normative force".20 Fabre says:

"Indeed, the fact that a given text states how should society be run and is a matter of fact respected by the democratic majority does not explain why it is respected, and whether it should be so. There are broadly three conditions under which a constitution may be said to be binding. It could be binding if, and only if, its content is just, or good, or the best one could hope for in given circumstances. It could be binding if, and only if, it is arrived at in the correct way—standardly through democratic procedures. Finally, it could be binding, if and only if, its content is just, good, and so on, and it was arrived at in the correct way."21

He argues that a constitution "is binding if and only if its content is just" and rebuts the other two conditions.22

No doubt, realising the practical difficulties, if not impossibilities, in the enforcement of DPs by the courts the Constitution-makers had to settle at their judicial non-enforceability. Internationally justiciability is not considered an indispensable characteristic of human rights and in case of social and economic rights a pragmatic approach is considered superior to the approach based on judicial remedies.23 Therefore, non-justiciability of the DPs does not mean that the Constitution-makers considered them less important than the FRs.24 At one stage they also considered the possibility of including an express provision that laws made in discharge of the State's responsibility of enforcing the DPs could be challenged on the ground of violation of FRs.25 If such provision was not included that does not indicate the inferiority of DPs against the FRs. It could mean, as the Court in Minerva Mills6 holds, that the Constitution-makers wanted to establish harmony between the FRs and DPs without giving precedence to either. The kind of arguments, which Seervai advances to undermine the position of DPs, were raised in the Constituent Assembly too. But they were rebutted and silenced primarily on the ground of unsuitability of the courts to enforce them. At no stage the Constitution-makers thought of having the Constitution without DPs. On the contrary, the Constitution would have never been adopted without DPs. The major complaint against the DPs in the Assembly was not their non-enforceability in the courts but that "they did not go far enough in encouraging a socialist society".26

Therefore, whether the DPs are law or not in the sense in which Seervai and some others define law, the Indian Constitution could not be envisaged and adopted without them. The Constitution-makers had a vision of the Indian society, which they wanted to realise through the Constitution. That vision was primarily reflected in the preamble, FRs and DPs. The vision, in Austin's words, was of social revolution, which means fundamental changes in the Indian society of the level that were brought by the French or the Russian Revolution in those societies. It was not merely a constitutional revolution of the type that took place in the United States which left the society and social relations fundamentally unchanged.27 Against the entrenched inequality, untouchability, caste-based discriminations and social disability of certain classes to own and hold any economic resources in the Indian society from almost time immemorial, the preamble of the Constitution provides equality of status and opportunity for all citizens of India and FRs abolish untouchability and make its practice an offence and prohibit all caste-based discriminations and disabilities. Similarly, in an injustice-ridden society, the preamble secures social, economic and political justice to all citizens of India. The same resolve is more elaborately repeated in DPs which, among others, specifically require the State to minimise the inequalities in income and to eliminate inequalities in status, facilities and opportunities as well as to direct its policy towards securing that "the ownership and control of the material resources of the community are so distributed as best to subserve the common good" and that "the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment".28 The DPs also require the State to take special care of the educational and economic interests of the former untouchables and other weaker sections of the society.29 These and several other provisions clearly envisage redistribution and reallocation of resources, which in a sort of feudal society were concentrated in a few hands. Similarly, in a divided and diverse society on so many considerations, the preamble announces promotion of fraternity assuring the dignity of the individual.30

Therefore, Austin rightly states that the Constitution of India aims at social revolution and that "despite the permeation of the entire Constitution by the aim of national renascence, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and in the Directive Principles of State Policy".31 He may not be a lawyer and his book may be a book on "political history", as Seervai points out,32 but the Constitution is neither a monopoly of the lawyers nor can a book on political history be disqualified from setting the perspective of the Constitution as perceived by its makers. Austin's book is rightly hailed as the most authoritative and lucid statement of the Constitution-making process and what went on in the minds of its makers and reliance on it by the Court in Minerva Mills6 was not at all misplaced.

As regards the issue of incorporation of DPs into FRs or their transfer to FRs, we need not go into the details. The relevant examples of the former could be found in any standard book on Indian constitutional law.33 As regards the latter, we have already noted the Constitution amendment inserting the right to education on the lines of Article 45 of DPs. We have also noted that these steps in a way undermine the position of the DPs.

The alternatives

The goal of social revolution, which the Constitution-makers had aimed at through the Constitution, especially through the FRs and DPs, has not yet been achieved.34 This may be for any number of reasons, including some miscalculations on the part of the Constitution-makers. But the mere fact that the FRs are judicially enforceable while the DPs are not, does not seem to have made much difference. The FRs remain as much unattained as the DPs. This is primarily because those, who were entrusted with the task of enforcing the FRs and DPs, have not done enough. They may have failed for any number of reasons, but apparently their failure to change the social order seems to be the most prominent. Of course the change in social order is an uphill task. But this is what the Constitution had aimed at. If the measures required and envisaged by the Constitution were taken with vigour and in earnestness, considerable progress would have been made in that direction. Let us examine some possibilities that could bring about the desired results.

Recognition of positive rights

In the discourse of rights before and around the time of Constitution-making doubts existed, which continue to persist even today, whether people could have positive or social rights. The Constitution-makers, however, did not express any doubts in this regard; they believed that people could and must have such rights. Their only doubt was whether the courts were the appropriate forums for enforcing them. Therefore, while they put some of them amongst the enforceable FRs, they put the rest amongst the unenforceable DPs. Their unenforceability was unfortunately and wrongly perceived as a badge of their inferiority to the enforceable rights, which was never intended by the Constitution-makers. Even though, after some initial doubts, it has become the established constitutional law of India that the FRs and DPs are of equal status, the latter are not being taken as seriously as the former, perhaps for the reason that the latter are judicially unenforceable. Therefore, those of the DPs, which need to be attended urgently or which a person with resources can raise before the courts, are either being transferred to the chapter on FRs or are being incorporated into the existing FRs through judicial interpretation. Both situations prove that the DPs are incapable of giving the same effect to human rights as the FRs. This position is not consistent with the stated law. Let us see what could be done to bring the reality closer to law.

Making DPs justiciable

Firstly, like FRs, DPs could also be made justiciable, which could be done by an amendment in Article 37 removing the reference to unenforceability of DPs. Such an amendment will not in any way affect the harmony between the FRs and DPs, which is an unamendable basic feature of the Constitution. It may, however, bring in its own problems, which need serious examination. The foremost among them is the same, which weighed in the minds of the Constitution-makers i.e. the suitability of the courts to enforce the DPs. In this regard distinction could be drawn between those DPs which guarantee rights to the individual and the rest. While the former may be made enforceable, the latter may be left as they are. Such division may not be a simple affair because some of the DPs, like Article 47, mix up the right to nutrition, standard of living and health with the duty of the State to impose prohibition. Some others, like Article 40 relating to the organisation of village panchayats, or Article 50 relating to separation of the judiciary from the executive, or Article 51 relating to promotion of international peace and security, may fall within the category of the rest without much difficulty. About some others, like Article 44 requiring uniform civil code, doubts may arise whether they confer rights on individuals and such rights are worth pursuing. All these problems can, however, be dealt with either by making suitable exceptions to the enforceability of certain DPs in Article 37 or by suitable amendment of the DPs concerned. As regards the rights conferring DPs, the kinds of apprehensions about their enforceability that existed at the time of Constitution-making have greatly weakened, if not completely eliminated.

Though the Constitution-makers did not doubt that the people could have positive rights, the theory of rights has been dominated by the conception of negative rights. This theory has already been discarded in the international arena by the adoption of two International Covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR).35 Respectively they represent the so-called negative and positive rights. Adequate number of countries, including India, have ratified the two covenants. Even the basis for not signing the latter covenant by some countries, such as the US, that it was being used as political propaganda by the socialist countries, has also been lost after the fall of socialism in 1990. In the meantime positive rights have also gathered adequate theoretical support. For example, sharing the views of the proponents of positive rights that people have a fundamental interest in having a decent life and that autonomy and well-being are the conditions for having such life, Fabre argues that the society is committed to the following two claims: (1) "individuals have social rights to adequate minimum income, housing, health care and education;" and (2) "those rights must be entrenched in the constitution of a democratic State".36

He finds only two countries—South Africa and France—where the social rights are entrenched in the constitution and are justiciable. But he also cites India as an example of countries where social rights have been recognised and sometimes indirectly enforced by the courts. Only non-justiciability of DPs separates India from South Africa and France.37 The European Social Charter as revised in 1996 also furnishes a bold example of recognition of enforceable social rights.

Admitting the difficulties in the justiciability of social rights, Fabre has also shown the way the courts can suitably enforce them.38 The unanimous judgment of 4-10-2000 of the Constitutional Court of South Africa in The Government of the Republic of South Africa v. Irene Grootboom on the right to housing and shelter guaranteed under Sections 26 and 28 of the Constitution of South Africa, is an example of the skilful performance of the Court in enforcing the social rights. Similar job can be performed by our courts also in enforcing the DPs. They have already been handling difficult matters requiring positive action.39

The courts may also be given the power of pre-review i.e. of review before a bill becomes law. For example, in Ireland the President can seek the opinion of the Supreme Court on the constitutionality of a bill before giving his assent to it. Similarly, the French Constitutional Court may be asked to examine the constitutional validity of any bill. In neither case can an individual, however, approach the court against the law. But the vigilant constitutional functionaries, including the members of opposition parties in Parliament, may see to it that the consistency of the laws with the constitutional rights of the individual is ensured. This system of pre-review has worked well in the two countries, especially in France. Article 143 of the Constitution of India is similar to the provision in Ireland under which the President of India can seek the opinion of the Supreme Court on the question of law or fact of public importance. The President has obtained such opinion in the past on bills affecting the rights of the individual, including the rights under the DPs.40 The President may obtain such opinion not only about the Central laws but also about the State laws. As a matter of fact the first opinion affecting the rights was sought against a State law.41 As the President acts on the advice of his Council of Ministers, his power under Article 143 may not be very effective about the Central laws but it can be effectively exercised about the State laws. The power is not confined only to the validity of the laws, it can also be exercised about executive actions and omissions. The Constitution provides adequate means to enforce the opinions of the Court. So far the Court has done its job well under Article 143 and its opinions on issues of rights show that it can very well handle the questions concerning the enforcement of positive or social rights included among the DPs. Therefore, if the DPs are made justiciable, the courts may in due course disprove their unsuitability to enforce them. Already, as noted above, the kind of questions that would arise in the courts in the enforcement of DPs are arising in the enforcement of FRs, especially in regard to the newly recognised FRs to dignified life including the rights to livelihood, shelter, education, health and clean environment. The courts are handling them and making the Government conscious of its constitutional responsibilities.

Suitable machinery

The other and more effective alternative, which requires no constitutional change and which does not overburden the courts with the additional responsibility of enforcing the positive rights, is the creation of suitable administrative machinery for the enforcement and realisation of all the constitutional rights. Already such machinery exists in the form of the National Human Rights Commission and the Human Rights Commissions in States. But so far this machinery has not drawn its attention towards the positive or social rights. It has remained confined to limited issues of life and personal liberty in the narrow sense of harm to the human body by State authorities or by others in connivance with such authorities. Its investigations and reports are also confined to those issues. It acts like a court after the event has taken place. The law creating the machinery does not confine its job to the issues, which it has been taking up so far.42 It must make full use of its powers under the law and do everything possible to bring the social reality closer to the constitutional mandate. It can also draw inspiration and guidance from the international and regional bodies such as the UN Committee for Economic, Social and Cultural Rights and the Committee of Independent Experts provided under the European Social Charter. If the Human Rights Commissions adopt this approach, their current task would be reduced to a great extent in due course because the issues that preoccupy them at the moment are closely linked to the non-satisfaction of the most basic rights of the people to food, shelter, education and health.

In entrusting this additional task to the National and States Human Rights Commissions, we cannot, however, ignore that the violations of the basic right to life and personal liberty in the country are so gross and enormous that they demand first priority and yet remain vastly unprotected.43

Setting priorities

So far if any attention has been paid to rights in India, it has been paid both in theory and practice only to the negative civil and political rights. Very little or no attention has been paid to the social and economic rights. Consequently much of the State and non-State apparatus, has been concerned only about the negative rights. We have noted above that even the Human Rights Commissions are engaged only in the limited area of life and personal liberty in the traditional sense. Perhaps only under the concept of social welfare State the State machinery has taken care of some of the social and economic rights of the individual. But it is doubtful whether that machinery also understands that people have a right to what it is doing. Generally it thinks that it is distributing dole as a matter of grace. It must be educated about the rights of the people and its duty towards them.

The international and national non-government organisations and bodies such as Amnesty International and Human Rights Watch, have also been mainly concerned about the violation of life and personal liberty in the traditional narrow sense. They hardly pay any attention to social and economic rights. Among the international non-government organisations I know, only Food First Information and Action Network (FIAN) is concentrating exclusively on the most fundamental right to feed oneself which falls in the category of social rights. Similarly in India, out of the very large number of non-government organisations, exceptionally a few of them may be taking marginal care of any social rights. Most of the academics and academic organisations are engaged in research and writing concerning life and personal liberty in the narrow sense such as arrest, trial, custodial violence, prison conditions and prisoners' rights, post-conviction treatment and rehabilitation, rights of the victim etc. Sometimes they also take up related issues of prostitutes, juveniles, detainees in mental homes etc. Consequently, the social rights not only go into the background, they are never attended to. Agreeably some of them are very important rights because existence and inviolability of life and personal liberty is a condition precedent for the exercise of any other right. But that is not the end of the matter. It does not require much research or stretch of imagination to establish that most of the violations of life and personal liberty by the State or even by private persons occur against the poor, ignorant and otherwise socially weak. There can be, of course, occasionally such violations of the rights even of the powerful for political reasons but they are comparatively few. The scene is dominated by the previous category. If poverty, ignorance or any other kinds of social and physical handicaps are the main causes for the violation of rights including the violation of the right to life and personal liberty, we must first attend to these causes. Therefore, immediate and much greater attention needs to be paid to the social rights. In this regard we should also seek guidance from the advanced Western nations with care and caution. Many of the social rights issues, which are very pressing and urgent for us, are no more serious issues in those countries. For them the stage of solving social issues and conflicts in terms of traditional liberalism of individual versus the State or social and economic categories of class conflicts, are slowly becoming matters of the past and new issues such as "relationship of man to nature, to his own technology, the globalisation of man-made risks, the relationship between living generations to one another as well as to the coming generations, the relationship between the two sexes, between various ethnic groups, and so on" are fast becoming issues for the future.44

The governmental and non-governmental bodies, intellectuals and activists must focus their attention on the social rights if they intend the constitutional goals of social, economic and political justice, liberty of thought, expression, belief, faith and worship; equality of status and opportunity and dignity of the individual being realised. One of the DPs beautifully concretises some of these goals by commanding the State "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".45 Let us pool in all our resources to remind the State of its obligation and to help it in its fulfilment.

Summing-up

Being aware of the fact that the revolutionary social changes in the Indian society intended by the Constitution through the FRs and DPs have not yet taken place, I have tried to examine whether something is wrong with these provisions. I am convinced that the provisions have no flaw. They have, however, not been given the intended effect. To begin with, the Supreme Court saw conflict between the FRs and DPs and assigned superiority to the former over the latter. This position could not be materially changed even after intellectual explanations and several amendments of the Constitution, including the one that gave immunity to laws made in pursuance of one of the DPs from challenge on the ground of violation of some of the FRs. Finally, when the Constitution (Forty-second Amendment) Act, 1976 gave such immunity to all laws made in pursuance of any of the DPs, only to invalidate the amendment the Court laid down the proposition that the Constitution envisaged balance and harmony between the FRs and DPs, which could not be disturbed even by an amendment because such balance and harmony was an essential feature of the basic structure of the Constitution.

Even this position is not acceptable to some people. They argue that the Court was wrong in deciding that the FRs and DPs stand on the same footing. This position is also being ignored and undermined by the incorporation of DPs into the FRs and the proposal to convert some of them into FRs by constitutional amendment. I have tried to support and refurbish the argument that for the Constitution-makers the FRs and DPs were equally important for achieving the goal of fundamental social changes required for the creation of the kind of society they envisaged for India. Primarily, they assumed that the rights guaranteed in FRs did not require the State to do much except keeping away from certain spheres of individual life. But that was not the sole assumption because several of the FRs, including the "equal protection of the laws", require positive action.46 As regards the DPs, they had no doubts that all of them required positive action from the State. They thought, and rightly so, that the courts were not an appropriate forum to perform that job. Therefore, they made them non-justiciable. Contrary to their calculations and expectations the non-justiciability of the DPs was and is considered as a badge of their inferiority against the FRs or even all other provisions of the Constitution. Since the making of the Constitution, it has been argued that the courts can also perform the job of enforcing the positive rights and they have been assigned that job in some of the constitutions. To some extent willingly or unwillingly the courts in India have also been engaged in positive action for the enforcement of rights. I have also mildly suggested that if non-justiciability has become the badge of inferiority for the DPs, let them also be made justiciable by constitutional amendment. But that is not my main argument.

My main argument is that what was and is intended by the Constitution could not be achieved unless we realise that the rights in DPs are as, if not more, important as those in the FRs. I do not subscribe to the view that in the name of enforcing the DPs, FRs can be taken away or undermined. I rather hold the view that every individual in the society is as much an end as any other. However, to ensure that end the State or society is required to take appropriate steps. The FRs and DPs suggest those steps. So long as the State is taking steps to ensure equal rights to all, without sacrificing the equal rights of any, it is only enforcing the constitutional mandate without violating any theory or principles of justice. The State, including the courts, has, however, not performed that job well and has been looking for alibis. One of such alibis is that DPs are non-justiciable. As I said above, the justiciability of FRs has not changed the situation much. Even today the most precious of our rights, the right to life and personal liberty in its narrowest sense, is violated everyday without any remorse or indication of change in the situation. The entire State machinery including the courts and the Human Rights Commissions have not been able to ensure us even this much. Therefore, much more than justiciability is at stake.

We have to first accept that everybody's basic rights are equally important. Secondly, we must ensure that these rights are available to everyone. Thirdly, we must design appropriate ways and means for making these rights available. The Constitution could perform only the task of stating these rights and of providing basic machinery for their realisation. There is no flaw in the content of the rights. The Constitution also provides the machinery of courts for the enforcement of FRs and of the democratically elected government for the implementation of DPs. Their calculation that the democratically elected government will suitably respond to the requirement of implementing the DPs has, however, failed for different reasons including the courts' approach to the relationship between the FRs and DPs. Consequently, large masses of people stay almost where they were at the time of commencement of the Constitution. They neither know their rights nor have the means for their realisation. Therefore, their most precious FRs are violated as much as the DPs remain unimplemented. I believe that unless their rights in the DPs are implemented their FRs will also continue to be violated. Since the machinery envisaged by the Constitution has failed to implement the DPs, or even the FRs, we must look for other possible alternatives.

In my view an independent machinery similar to the Human Rights Commissions at the national and State levels to monitor the implementation of the DPs is necessary. As I consider both FRs and DPs equally important rights, common machinery for both is much more appropriate. I would rather say that the Human Rights Commissions themselves must undertake this responsibility. Their jurisdiction and powers are not confined only to the FRs, they extend to all human rights. As they are already in existence and working for some time they could immediately take up this responsibility. For undertaking the additional responsibility their staff may suitably be increased. They could work on similar lines as the International Committee on Economic, Social and Cultural Rights does. But it may also develop its own strategies suited to our needs. Its job should not be merely investigation of violations of rights but also development of necessary programmes and strategies for the implementation of FRs and DPs. Secondly, the non-government organisations should also undertake increased interest in the implementation of positive rights rather than confining to violations of negative rights. Finally, adequate support must come to the positive rights from the intellectual and academic communities, who are also mostly preoccupied with the violation of negative rights.

These are a few tentative suggestions, which may be supplemented with others. The need of the hour is that we pay greater attention to DPs than what we have paid to them so far. It is primarily through the DPs that our FRs will be better protected. Together they will create a free and just society. Together they will also ensure all-round development and welfare.47

  † This paper is dedicated to the memory of Professor P.K. Tripathi. Far back in 1954, he pointed out the infirmities of the Supreme Court's attribution of superiority to the Fundamental Rights (FRs) over the Directive Principles of State Policy (DPs) and propounded that the two must be construed harmoniously. See, P.K. Tripathi, "Directive Principles of State Policy: The Lawyer's Approach to Them Hitherto, Parochial, Injurious and Unconstitutional", 17 SCJ 7 (1954). Also reprinted in P.K. Tripathi, Spotlights on Constitutional Interpretation, 291 (1972). As is noted in the text, accepting Professor Tripathi's approach from 1958 onwards, the Supreme Court in 1980 held that harmony between the FRs and the DPs of State Policy was one of the basic features of the Constitution: See, Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625. I thank my colleagues, Parmanand Singh, Bhuvan Pande, Kamala Sankaran and Surya Deva for going through the paper and for making some valuable suggestions. Return to Text

  †† Professor of Law, University of Delhi; currently, Fellow, Institute for Advanced Study, Berlin. Return to Text

  * In the Lok Sabha in the course of discussion on the Constitution (First Amendment) Bill, quoted by Bhagwati, J. in Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, 711. Return to Text

1. The distinction between the negative and positive rights or the civil and political rights on the one hand and the social, economic and cultural rights on the other, is used in the rights' vocabulary to denote the distinction respectively between those rights which require the State to keep away from a certain domain of the individual and those which require it to take appropriate steps for the realisation of his rights. The distinction, however, is not so clear and the same rights may be brought in one or the other category. Those expressions have, therefore, been used as part of tradition and not as matters of substance or theory. For detailed discussion on this issue see, I. Berlin, "Two Concepts of Liberty", in I. Berlin, Four Essays on Liberty, 118 ff. (1969). Return to Text
2. State of Madras v. Champakam Dorairajan, 1951 SCR 525, 531. Return to Text
3. See, the Constitution (First Amendment) Act, 1951, Section 2. Return to Text
4. See, Tripathi, supra fn+. Return to Text
5. See, e.g., Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731; Balwant Raj v. Union of India, AIR 1968 All 14; Chandra Bhavan Boarding & Lodging v. State of Mysore, (1969) 3 SCC 84. Return to Text
6. Minerva Mills Ltd. v. Union of India, SCC, p. 654, para 56. Return to Text
7. Constitutional Law of India, Vols. 1-3 (4th Edn., 1991-96). Return to Text
8. See, e.g., U. Baxi, "The Little Done and the Vast Undone—Some Reflections on Reading Granville Austin's The Indian Constitution", 9 JILI 322, 362 (1967) and "Directive Principles and Sociology of Indian Law—A Reply to Dr Jagat Narain", 11 JILI 245 (1969). Return to Text
9. Seervai, supra fn 7, at 1921 ff. Return to Text
10. Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645. The amendment inserts Article 21-A in the Constitution. Return to Text
11. See, the Report of the National Commission to Review the Working of the Constitution, Vol. I, Ch. 3 (2002). http://ncrwc.nic.in Return to Text
12. See, e.g., Articles 74(2), 122, 163(2), 212, 329, 350, 350-A, 350-B, 351 and 363. Return to Text
13. See, e.g., Articles 17 and 23. They could never be invoked until the supportive laws were made. Return to Text
14. R. Davis, English Law and French Law, 7 (1980). Return to Text
15. Ibid., for a detailed discussion on this issue, see W.F. Menski, Comparative Law in a Global Context: The Legal System of Asia and Africa, 51 ff. (2000). Return to Text
16. I. Cranch 137 : 2 L Ed 60 (1803). He said that it was the highest in the hierarchy of law. Return to Text
17. J. Waldron, The Law, 67 (1990). Return to Text
18. E. Barendt, An Introduction to Constitutional Law, 4 (1998). Return to Text
19. C. Fabre, Social Rights under the Constitution, 73 (2000). Return to Text
20. Ibid. Return to Text
21. Ibid., emphasis in the original. Return to Text
22. Ibid. Return to Text
23. See, H.J. Steiner and P. Alston, International Human Rights in Context, 298 ff., 311 ff. (1996). Return to Text
24. See, M.P. Singh, "Directive Principles of State Policy in the Constitution of India", in B.V. Lal & T.R. Vakatora (Eds.), Fiji and the World, Vol. 2, 269-71 ff. (1997). Return to Text
25. See, G. Austin, The Indian Constitution, 77 (1966). Return to Text
26. Ibid., at p. 83. Return to Text
27. For the difference between the two kinds of relations, see, U.K. Preuss, Constitutional Revolution, 81 ff. (1995). Return to Text
28. Articles 38 and 39(b) and (c). Return to Text
29. Article 46. Return to Text
30. See, P. Sack, "Legal Technology and Quest for Fraternity: Reflections on Preamble of Indian Constitution", 32 JILI 294 (1990). Return to Text
31. Austin, supra fn 25 at p. 50. Return to Text
32. Seervai, supra fn 7 at 1953 ff. Return to Text
33. See, e.g., Seervai, supra fn 7 at 1946 ff. M.P. Singh, Shukla's Constitution of India, 297 ff. (10th Edn., 2001). Return to Text
34. For discussion on some of the issues in this regard, see, G. Austin, Working a Democratic Constitution, 69 ff. (1999). Return to Text
35. See, "Statement to the World Conference on Human Rights on Behalf of the Committee on Economic, Social and Cultural Rights", UN Doc. E/1993/22, Annex. III cited in H.J. Steiner and P. Alston, International Human Rights in Context, 268 (1996): "for the purpose of international law, debate over whether economic rights are 'really' rights was settled long ago". Also see, R. Kuennemann, Food and Freedom, 27 ff. (1999) and D. Conrad, "The Basic Right to Basic Necessities of Life", 10 & 11, Delhi L. Rev., 1 (1981-82) reprinted in D. Conrad's collected works entitled, Zwischen den Traditionen, 289 ff. (edited by J. Luett & M.P. Singh, 1999). Return to Text
36. Supra fn 19 at p. 4. Return to Text
37. Ibid., at pp. 1, 159, 180. Return to Text
38. Ibid., at 152 ff. Also, M.K. Addo, "Justiciability Re-examined", in Beddard et al (Eds.), Economic, Social and Cultural Rights: Progress and Achievements, 93 ff. (1992). Return to Text
39. See, e.g., Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 and the series of cases concerning shifting of industries in Delhi mostly in the name of M.C. Mehta. Return to Text
40. See, e.g., Kerala Education Bill, 1957, Re, AIR 1958 SC 956 and Special Courts Bill, 1978, Re, (1979) 1 SCC 38. Return to Text
41. See, Kerala Education Bill case cited supra fn 40. Return to Text
42. See, the Protection of Human Rights Act, 1993, Sections 2(d) and 12. Return to Text
43. See, e.g., the news item in The Hindu, 3-5-2003, according to which the National Human Rights Commission reports that a large majority as high as 94.66 per cent in some of our States of the overpopulated prisons in the country consists of undertrials. http://www.thehindu. com/2003/05/03/stories/2003050303641200.htm. In response to the prepublication copy of this paper sent to NHRC, two of its then members, Ms Justice Manohar and Mr Dayal wrote that the Commission was taking due care of positive rights and affirmative action. Return to Text
44. Preuss, supra fn 27 at p. 115. Return to Text
45. Article 38(1). Return to Text
46. See, G. Austin, Working a Democratic Constitution: The Indian Experience, 669 (1999); St. Stephen's College v. University of Delhi, (1992) 1 SCC 558 at 612; Indra Sawhney v. Union of India, (2000) 1 SCC 168 at 202; T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 at 655-56. B. Parekh, Rethinking Multiculturalism, 243 ff. (2000), cf. B. Barry, Culture and Equality (2001). Return to Text
47. For relationship between freedom and development, see, A. Sen, Development as Freedom (1999).