DPSP: What is the precedence of DPSP over FR?

12 May 2023  Read 4578 Views

The government launched Sarva Shiksha Abhiyan to provide elementary education to children, MGNREGA employs rural households, and National Health Mission provides universal access to healthcare services. So, what are these? DPSP in real life wherein the government takes all policies or initiatives for its people. These policies can be brought & implemented only because of the concept of DPSP under the Indian Constitution in Part IV.

DPSP in India is not an indigenous one as it is borrowed from the Irish Constitution (Article 45), which in turn is borrowed from the Spanish Constitution. 

So, let’s discuss DPSP, its precedence, and how it differs from FR & Fundamental Duties. 

DPSP under Indian Constitution

Articles

Provision

Article 36

Defines State as same as Article 12 unless the context otherwise defines.

Article 37

Application of the Principles contained in this part.

Article 38

It authorizes the state to secure a social order for the promotion of the welfare of people.

Article 39

Certain principles of policies to be followed by the state.

Article 39A

Equal justice and free legal aid.

Article 40

Organization of village panchayats.

Article 41

Right to work, to education and to public assistance in certain cases.

Article 42

Provision for just and humane conditions of work and maternity leaves.

Article 43

Living wage etc. for workers.

Article 43-A

Participation of workers in management of industries.

Article 43-B

Promotion of cooperative societies.

Article 44

Uniform civil code for the citizens.

Article 45

Provision for early childhood care and education to children below the age of six years.

Article 46

Promotion of education and economic interests of SC, ST, and other weaker sections.

Article 47

Duty of the state to raise the level of nutrition and the standard of living and to improve public health.

Article 48

Organization of agriculture and animal husbandry.

Article 48-A

Protection and improvement of environment and safeguarding of forests and wildlife.

Article 49

Protection of monuments and places and objects of national importance.

Article 50

Separation of judiciary from the executive.

Article 51

Promotion of international peace and security.

 

Articles 39(b) & (c) of the Indian Constitution 

Two of the most important articles in DPSP are Articles 39(b) and 39(c). Read these articles carefully as the entire concept revolving around the interplay between FR and DPSP concerns these articles.

Article 39- Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing:

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

Are DPSP and Fundamental Duties the same?

DPSP vs. Fundamental Duties

  1. The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India added by the 42nd Amendment in 1976, whereas; DPSPs are the guidelines to be followed by the government in the governance of the country. 

  2. DPSPs are provided in Part IV of the Constitution from Articles 36 to 51, whereas; Fundamental duties are provided in Article 51A of the Constitution.

  3. The Fundamental Duties are enlisted in the Indian Constitution:

  • to make the citizens aware of their social and economic obligations.

  • to warn them as to what to do and what not to do in the country’s interest, along with other citizens and themselves.

  • to stir up national harmony.

  • to subdue the uncontrolled elements in society.

  1. The Directive Principles are enlisted in the Indian Constitution:

  • To provide a framework, political, economic, and social programme for a modern democratic State.

  • To provide guidelines to the government to make laws and draft their policies.

  • To act as a measure to judge a government's performance.

  • To direct the government to move towards the goal of a Welfare State. They reflect the ideas of justice, equality, liberty and fraternity mentioned in the Preamble. 

  • To enlighten and educate the people on what they can expect from politicians to whom they vote to power.

Is DPSP given precedence over Fundamental Rights? 

To understand the order of precedence, we must read about the doctrine of harmonious construction for which we will be referring some of the landmark cases, and then you will find the exact answer. Keep reading!

  1. Kerala Education Bill (1957)

The Supreme Court in the Re Kerala Education Bill (1957) elucidated that the Doctrine of Harmonious Construction must be used to avoid a situation of conflict while enforcing DPSPs and the FR. With respect to this doctrine, the court held that there is no inherent conflict between FRs and DPSPs and the courts while interpreting a law must attempt to give effect to both as far as possible, in simpler words, try to harmonize the two.

Also, the court further stated that where two interpretation of the law is made, wherein one interpretation validates the law while the other makes the law unconstitutional and void, the first interpretation validating the law must be adopted. But in case of only one interpretation which ultimately leads to conflict between DPSPs and FRs, the court in such a case has no option but to implement FRs in preference to DPSPs; FRs will be given preference.

  1. Champakam Dorairajan Case (1952)

The Supreme Court, in this case, stated that all Fundamental Rights are superior over DPSPs and that DPSPs cannot override the provisions of Part III of the constitution because the DPSPs have to run subsidiary to the FRs. Later, the parliament responded to this judgment by amending and modifying various FRs that came in conflict with DPSPs directly to give DPSPs effective power over FR. 

So, in Golaknath’s Case (1967), the Supreme Court pronounced that parliament cannot amend the FRs to give effect to the DPSPs. The Parliament again responded against this judgment by bringing the 25th Amendment Act of the constitution, which inserted Article 31C in Part III. This article constituted two provisions. This completely brings us to Golaknath’s case. Let’s discuss this ahead.

  1. Golak Nath Case (1967)

Article 31C was inserted in Part III by the Parliament, which constituted two clauses which are as follows:

a. If a law is made to give effect to DPSPs in Article 39(b) and Article 39(c) and in the process, this law violates Article 14, Article 19 or Article 31 of the Indian Constitution. The law should not be declared as unconstitutional and void merely on this ground. (Contrary to what Supreme Court held in Champakam’s case)

b. Any such law which contains the declaration that it is to give effect to DPSPs in Article 39(b) & Article(c) must not be questioned in a court of law.

The Court held that the Fundamental rights cannot be abridged or violated & that Parliament cannot amend the FRs to give effect to the DPSPs. Again against this judgment, the parliament through ‘the 42nd Amendment Act’ in 1976, further extended the scope of this provision by including “within its purview any law to implement any of the DPSPs specified in Part IV of the constitution and not merely Article 39(b) or (c). However, this extension was declared unconstitutional and void in the Minerva Mills Case(1980). Here’s comes another landmark case.

  1. Kesavananda Bharati Case (1973)

The 42nd amendment was challenged in the Kesavananda Bharati Case(1973) wherein the Supreme Court held that the Parliament can amend any part of Constitution, but could not destroy Basic Structure of the Constitution. The second clause of Article 31C was declared unconstitutional and void as it was against the Basic Structure of the Constitution. However, the SC upheld the first clause of Article 31C as the second clause was more arbitrary. Also, the power of Judicial review cannot be taken out by Parliament.

  1. Minerva Mills Case (1980)

This case clearly held that a law under Article 31C but only the first clause would be protected only if it is made to implement directives in Article 39(b) and 39(c) and not any other DPSPs, unlike what the Parliament decided to do through Article 31C that is; the extension to all DPSPs was declared as unconstitutional and void by the SC in the Minerva Mills Case(1980).

Did you know? 

DPSP and FRs are considered two sides of one coin because they complement each other.

What is the present order of precedence?

The present position is that only Article 39 (b) and Article 39 (c) are given precedence over Article 14, 19 and not all the Directive Principles. So, if there is a conflict between FR and DPSP, then this order is to be followed:

  1. Fundamental Rights except for Arts. 14 and 19.

  2. DPSP Arts. 39(b) and 39(c).

  3. Fundamental Rights Arts. 14 and 19.

  4. DPSP except for Arts. 39(b) and 39(c).

This means that DPSP 39B and 39C have been given precedence over Fundamental Rights Arts: 14 (Right to Equality) and 19 (Freedom of Speech and Expression).

Difference between FR and DPSP

Basis

Fundamental Rights

Directive Principles of State Policy

Provision

Part III of the Constitution of India contains the Fundamental Rights guaranteed to the citizens of India. (Articles 12-35)

Part IV of the Constitution contains the DPSP. (Articles 36-51)

Meaning

Basic rights that are guaranteed to Indian citizens by the Constitution are Fundamental Rights 

DPSPs of the Indian constitution are the guidelines to be followed by the Government while framing policies.

Democracy

Political Democracy is established in India that is to the people, for the people and by the people.

Economic and Social Democracy is established with the help of the DPSPs.

Goal

The welfare of each and every citizen is promoted

The welfare of the entire community is fostered 

Penalty

Infringement of FR is punishable

DPSPs violation is not punishable as these are guidelines to the govt.

Enforceability

Fundamental Rights are justiciable as they can be enforced legally by the courts in cases of a violation.

Directive Principles are not justiciable as the courts cannot enforce them in cases of a violation.

Power of the court

If there is a law which is in violation of fundamental rights then the courts can declare it as unconstitutional.

If there is a law in violation of Directive Principles, then the courts do not have the power to declare it as unconstitutional.

Suspension

Fundamental rights can be suspended during a national emergency except for Arts. 20 & 21.

Directive Principles of State Policy can never be suspended under any circumstances.

Borrowed from

Fundamental Rights was borrowed from the USA’s Constitution.

Directive Principles of State Policy was borrowed from the Irish Constitution which was in turn copied from the Constitution of Spain.

 

Conclusion

Overall, DPSPs are an essential part of the Indian Constitution and aim to ensure the welfare of all citizens. Even if they are not legally enforceable, they provide a framework for the government to create policies and programs that promote social and economic justice.

FAQs (Frequently Asked Questions) on DPSP (Directive Principles of State Policy)

1. How many Articles are there in DPSP?

The Indian Constitution contains a total of 16 Articles (36-51) under Part IV which deals with the Directive Principles of State Policy.

2. What is the purpose of DPSP?

The main purpose of DPSP is promoting social, economic, and political welfare of the people and forming a just and egalitarian society. They aim to guide the govt. in formulating policies for social justice, equal opportunities and a welfare state. 

3. When there's a conflict between DPSP and Fundamental Rights, which one will prevail?

In case of any conflict between the two, Fundamental rights always prevail over the DPSP because the welfare of the society as a whole is considered more important than that of an individual.

4. What is the main difference between Fundamental Rights and DPSP?

Fundamental Rights are the basic human rights which are provided to the citizens whereas DPSPs are the ideal or guidance or duty of the state to be kept in mind when formulating policies and enacting laws.

5. Are DPSPs legally enforceable?

No, Directive Principles are not legally enforceable. DPSPs are non-justiciable, unlike Fundamental rights, which means that the courts cannot enforce them (the DPSPs). However, they are still considered fundamental in the governance of the country.

As we are aware, the Indian Constitution draws inspiration from various constitutions around the world. While Fundamental Rights find their origins in the United States' Constitution and Fundamental Duties are influenced by the Constitution of the Soviet Union.

Can you tell us the country from which DPSP has been adopted?

About the Author: Kakoli Nath | 275 Post(s)

Kakoli Nath is a legal Content Manager at Finology Legal who pursued BBA.LL.B (5 years integrated course). She is a patent analyst & had also done advanced certification in Forensics Psychology and Criminal Profiling from IFS, Pune.

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