Rights, directive principles, duties: what is fundamental?

ROHINTON FALI NARIMAN

WHEN this country was declared independent in 1947, it had a mammoth task before it, a formidable task of drawing up a Constitution which would serve its people and replace the English Government of India Act of 1935. That task was performed in a whirlwind three years – a little less than three years as a matter of fact, and the Preamble to this new document made it clear that there was going to be a completely fresh start. In ringing words, it begins with ‘We the People’. So, therefore, first and foremost, British rule was replaced by Peoples’ rule. The Preamble stated that we were Sovereign, our own sovereign, having thrown off the British yoke, and we believed in the democratic way forward, which meant we would govern ourselves within the framework of a republican form of government as opposed to the antithetical, monarchical type.

We are a Sovereign Democratic Republic. We elect our representatives, who rule us. Two words, ‘socialist’ and ‘secular’, were rejected in 1947 and then in 1950 but were introduced in 1976. As a matter of fact, K.T. Shah and one other member did their best to try and include the words ‘socialist’ and ‘secular’. Dr Ambedkar, who piloted the Constitution, in a sense, felt that these two words were unnecessary because they were already reflected. The Directive Principles of State Policy made it clear that we were going the socialist way and there were many provisions that made it clear we were secular.

The road map was set. There will now be for ‘We the People’, justice, socio-economic and political. Political justice was established immediately by a stroke of the pen. Article 326 of the Constitution declared that in place of the few voters in the provinces in the days of British rule, there would now be universal adult franchise. At that point the voting age was 21 years which we have now changed to people being eligible to vote at 18 years of age. Social and economic justice had a very long way to go, for which we borrowed heavily from the Irish Constitution, which incidentally was a Roman Catholic Constitution, that opens with the words, ‘... we are devotees of the Trinity and then of our Lord Jesus Christ.’

Interestingly, after justice, come the three words which are the cri de cœur of the French Revolution: liberty, equality, and fraternity. Liberty was to be of thought, expression, faith, belief, worship; equality was to be of both status and opportunity. These three words were in Part III of the Fundamental Rights chapter of the Indian Constitution, and above all, fraternity was in the forefront implying that it was fundamental to both the dignity of the individual and more important, it was basic to unity. Later, the phrase, integrity of the nation, was added.

The Preamble states categorically that it was a huge break from the past. For the first time we had recognized fundamental rights, and
we had Directive Principles of State Policy. Fundamental rights can be traced back to Anglo-Saxon jurispru-dence, to the Magna Carta itself, which is a document drafted in 1215, which was wrested by the Barons from King John, one of the wickedest kings that England was ruled by. What survives even today are Clauses 39 and 40, by a Statute of Westminster of 1297. We are primarily concerned with Clause 39, which says that no man shall be tried, except by his peers and under the law of the land. The Rule of Law therefore, as we know, can be traced back to Clause 39 of the Magna Carta.

To summarize there would now be no executive fiat, no arbitrariness of the king, but instead, the law of the land would govern us. It took many centuries for Parliament to mature as an institution and become a rival to the King in England. In 1689, when England had its Glorious Revolution, glorious because not even one shot was fired to expel James II. His son-in-law and his daughter eventually ruled as William III and Mary II. During their reign Parliament introduced a Bill of Rights in 1689. That Bill of Rights primarily pitted Parliament against the King. You remember, Magna Carta was baron against the king. Parliamentarians were given the right to free speech, and above all, excessive bails and fines; cruel and unusual punishment were outlawed. 

One hundred years on two documents of seminal importance appear: first, the U.S. Constitution of 1789, and second, the Declaration of the Rights of Man which was born out of the French Revolution. Most of our fundamental rights, as we know them, have some place in this Bill of Rights which was added by an amendment – the First Amendment. It was not part of the original Constitution of the United States of America. These rights are pretty much the rights that we recognize today, and they are rights no longer of parliament against King, but of the citizen against parliament, as it were – parliamentary law, and the executive. These are the mammoth leaps that we have taken through the centuries, starting with the noblemen against king, then parliament against the king, and now citizen against parliament.

The Declaration of the Rights of Man was equally important in that it stated these rights were natural rights which inhere in us because we are human. Something very important as this was only picked up by our courts in as late as 2017, to finally declare that yes, these are natural rights and rights which inhere in us, that they are not something to be taken for granted. In 1948, came the United Nations declaration, a result of the most horrible world war that took place between 53 nations, and post that world war, thanks largely to Eleanor Roosevelt, a declaration of fundamental freedoms as we know them to be today, was bestowed on us. Interestingly, the very first fundamental freedom is fraternity because they realized, as Beethoven did in the last movement of his Ninth Symphony, that until men become brothers there can never be world peace. So, the single most important thing which world peace requires is fraternity, and therefore, you find it as the very first right human right in the U.N. declaration.

Apart from this, there are other rights such as the right to privacy, right to leisure, and most importantly, the fundamental right to see that all these rights are not declared only in name, but come down to the people and are justiciable by courts which are independent. All these concepts are framed in what is now called Part III of our Constitution. Part III begins with Article 12 to remind us that fundamental rights in essence are the rights of the citizen against the state, and the state is defined very widely because the state would include legislative activity, executive activity, local authority activity, and all other authority activity under the rule of government. Therefore, the moment a citizen petitions a court, a superior court, and claims that his fundamental right has been infringed, the state becomes the respondent, has to answer, and if it has no answer, the citizen trumps the state.

This is extremely important because you then have the wherewithal of trumping the state in the next article, which is Article 13 that is of seminal importance. It says that the moment there is any law or executive action that is made contrary to a fundamental right, it will be declared by a court to be void to the extent, of course, that it contravenes a fundamental right; and that declaration of voidness will enure to the citizen’s benefit and give the citizen relief. With Article 13 we have Article 32 which is an unique article not found in any other constitution in the world. It specifically states that it is a fundamental right to approach the Supreme Court in order to enforce other fundamental rights. And it is through this mechanism of Articles
32 and 13 that all the great rights mentioned are enforced in favour of the citizen as against the almighty state.

There are the great equality articles – Article 14, is equality before the law and the equal protection
of the law. Article 15 once again establishes that the state cannot discriminate on grounds of religion, race, sex, place of birth, or any such. Article 16, guarantees employment in government to persons who are citizens. Article 17 is a ringing declaration against untouchability. The Parliament is compelled to introduce an Untouchability Offenses Act to see that this article is faithfully carried out. Article 18 deals with titles and states titles etcetera given by a foreign state are not recognized. Article 19 is very important. Both Article 14 and 19 are important as the two basic rights which inhere in us, because we are human.

One is not to be discriminated against, which is Article 14 and Article 19 has a number of facets, each one of which is extremely important. The very first, 19(1)(a), is freedom of speech, and the court has read into it, freedom of speech and expression, and freedom of the press which is most important. The second is the great fundamental right of free assembly which is crucial to a democracy. The third is the right to freely associate and form unions. The fourth is to move anywhere freely throughout the territory of India, a right not reflected in the U.S. Constitution. The fifth is a right to reside anywhere in India, again not reflected in the U.S. Constitution. The sixth is a right to property which caused a lot of trouble in the 1970s, and finally was done away with in 1978, and the last one is a right you won’t find in the older constitutions across the world, the right to practice any occupation or carry on any business.

These seven fundamental basic rights are all contained in Article 19. In Article 20 and 21, the famous ‘no double jeopardy’, is where a person can be convicted of an offence only on the day that he has actually carried out the offense; there can be no ex post facto offence created and the great right not to incriminate oneself. Article 21 which lay dormant for a period of 28 years has now come back into being, guaranteeing not just life and personal liberty, but also the right to live with human dignity; the right to privacy. In Article 23 and 24 there is a declaration against any form of begar, slavery, or child exploitation. Article 25 and 26, address religious freedom, subject only to public order, morality, and health. There is a separation of church and state, of religion and state.

What is important is when children are taught in a wholly controlled state educational institution, religion cannot be taught, and if religion is taught in aided institutions, every individual has the option to opt out of that religious instruction. Article 29 is extremely important because it reflects the fact that we are an extremely diverse people. All cultural rights, which a very diverse people have, are preserved and protected. Now the word culture is vast and subsumes a large number of things that we do in our daily lives. In Article 30 rests the important right to a minority institution to admit students of their choice. Fundamental rights are basically addressed to the courts, to an independent judiciary set up under the Constitution, which deliberates on these rights, enters into a balancing act in each case that is before it, between the citizen and the state, and then decides either in favour of the citizen or of the state.

When we come to Directive Principles of State Policy, these principles emanate from a constitution which is Roman Catholic, and our two basic directive principles in Article 39(b) & (c) run as follows. 39(b) – that the ownership and control of the material resources of the community shall be so distributed as best to subserve the common good; and 39(c) – that the economic system does not result in concentration of wealth to the common detriment. Both these are directly lifted from an encyclical that is a letter written to the Bishops by Pope Leo XIII as far back as in 1891. So, we do have these Catholic concepts that were directly lifted and put into our Constitution. These Catholic concepts, therefore, have given birth to a large number of legislations that are socially beneficial and intended to usher in the social revolution that the makers of our Constitution had thought about.

Other than these directive principles, free legal aid as a matter of right; workers being looked after in various ways, with equal pay for equal work, a basic living wage, was also included. There was a concentration on the weaker sections to see that
they are uplifted, and also an article that addresses the prohibition of intoxicating drugs and intoxicating drinks if they are detrimental to health. Another part of the Constitution suggested the imposition of an excise duty on alcohol to earn revenue for the state. This is what we find in the Directive Principles of State Policy and it was Sir Benegal Narsing Rau, who wrote the first draft of our Constitution and had a peculiar notion that the Directive Principles of State Policy were primary and all important and that the fundamental rights would have to subserve them.

Fortunately, the founding fathers of the Constitution emphatically rejected this notion and made it clear in Article 37, which is of fundamental importance, and appears in the Directive Principles chapter, that though these Directive Principles, like the other rights, are fundamental, they are fundamental in the gover-nance of the country, and they will apply to the legislature and the executive but most importantly, they will not be justiciable in courts. Therefore, the scheme of the Constitution was that the Directive Principles of State Policy would guide the way for legislatures and the executive, and that the courts would then test such legislation on the grounds that they either violate or not violate funda-mental rights.

This was all very well until, very early in our constitutional history in 1951, without waiting for the parliamentary election due to take
place the following year, the same provisional Parliament which was the Constituent Assembly, rushed through our Constitution’s First Amendment. The reason for rushing it through was that the government of the day was very keen that agrarian reform measures
go through and not get stalled. They rushed through the first amendment which included two articles that upset the scheme. The scheme was that fundamental rights are fundamental in their sphere – citizen against state that the citizen can enforce. And that directive principles are fundamental only in governance, applying to the legislature and the executive. The waters now get muddied. 

In 1951, Article 31A and Article 31B (capital) were introduced by this First Amendment. These articles subvert the scheme. The moment there is an agrarian reform measure under 31A, all fundamental rights cease. However, all fundamental rights were fortunately changed to Articles 14 and 19 that speak about equality and the seven rights, and also 31 which was a property right. This was ensured by the Fourth Amendment of the Constitution. From the Fourth Amendment on, when there is a contest between an agrarian reform legislation and equality rights, all the rights contained in 14 and 19 go out of the window.

Then comes the article that was meant to be an adjunct to Article 31A. That article is almost a black hole in the universe of our Constitution. It is an extremely drastic provision. It is open-ended and basically says, without prejudice to Article 31A, that the moment any act passed by either Parliament or the state legislature is put into the black hole, which is the Ninth Schedule, all fundamental rights cease. Second, and most important, is that it is not subject specific. In the early years the courts could have read it to mean subject specific, but unfortunately in the 1965 judgment in the N.B. Jeejeebhoy’s case, Chief Justice Subbarao said 31B is independent of 31A. It was akin to a validating act provision, and therefore, would have been tied only to agrarian reform. Therefore, 31B stands as a massive roadblock qua every single fundamental right.

The moment a legislation on any subject is put into this black hole, the statute springs alive by virtue of having been put into this black hole. Article 31B unfortunately was not put to test in any real sense because in the very first judgement in 1952, Shankari Prasad Singh, the Supreme Court said that since it was a constitutional amendment it could not be tampered with substantively. Golaknath, a 1967 judgement of eleven learned judges, by a razor thin majority said, thus far no further and therefore, upheld it. Thus far and no further means 31B continues. Eventually, in Kesavananda Bharati, in 1973, they put up the ‘basic structure’ test and said that any constitutional amendment that violated the basic structure must go. So, 31B was never tested on the grounds that it was a terrible inroad into the separation of powers and fundamental rights.

A five judge bench in the Waman Rao judgement in 1981 held that we will restrict 31B hereon. Every act in the Ninth Schedule, would have to be tested on the grounds of basic structure. Justice Khanna’s judgment in Kesavananda Bharati, had said the right to property is not part of the basic structure and by the time it came to be tested in Waman Rao, the right to property had gone altogether. Waman Rao spoke of basic structure and finally Waman Rao was referred to a larger bench in I.R. Coelho. Coelho was a nine judge bench and could have done many things in so far as 31B was concerned. It could have said fundamental rights are part of basic structure, which it did, but then went on to say that some fundamental rights may not be part of basic structure. I fail to see which fundamental right would not be part of the basic structure in 2005 when property had gone. Perhaps the title provision, Article 18, but short of that everything is fundamental, and they are all rights that naturally inhere in us. 

The two-tier test muddied the waters again. This test was that first it would have been what is referred to as the Rights’ test and thereafter, the Essence of Rights’ test. What does that mean? It asks whether the law contravenes a fundamental right. If the answer is yes, then does it contravene the very essence of that right or not. For example, if there is some arbitrary pension scheme which takes away a large part of a person’s pension, it is as egregious an infraction of Article 14 as an infraction of Article 14 can be. It is very difficult to understand this core and penumbra test which they laid down and therefore kept 31B alive, so far as core and penumbra were concerned. 31C is bringing back to fruition B.N. Rau’s emphasis that fundamental rights run subsidiary and are subservient to the directive principles.

Long before 31C came into force in 1971, a communal GO was challenged in 1951, and one wondered why it was called a communal GO. It was a peculiar GO where in the engineering colleges, medical colleges and suchlike, there were 14 seats reserved – six for Hindus who were non-Brahmin, two for Brahmins, two for Harijans, two for OBCs; one for Muslims, and one for Christians. This communal GO was challenged in the Madras High Court and then here. Justice Das struck down the communal GO and said: fundamental rights are most important and directive principles are in fact subservient to them. He said this because if you read Article 13 and Article 37, it becomes clear that Directive Principles are not enforceable in the courts under Article 37, so they must run subservient.

The same thing echoed in Mohd. Hanif Qureshi’s case, which was involved cow slaughter. That cow slaughter case was upset in 2005 by a bench of seven judges who said that the balanced view that Qureshi had taken is no longer balanced because even though cattle may not be useful for giving milk or as draft cattle, nonetheless, if there is legislation that says they cannot be touched, you cannot touch them. It is not a coincidence that six of the seven judges were vegetarian.

31C became the subject matter of challenge in our most populated bench of Kesavananda Bharati which consisted of the maximum 13 judges and 31C was upheld by six judges on the grounds that a constitutional amendment could not be struck down. There was no basic structure test applied to it. It was Justice Khanna, the seventh judge, who applied basic structure, and struck down what is called the last part of 31C that precluded even a limited judicial review of going into whether the law was in fact in pursuance of Article 39(b) or (c) or not.

As things stood, for the first time there was a full-blown challenge to 31C in the same Waman Rao judgment in 1981, and Waman Rao somehow or the other said we are bound by 13 judges. It was the end of the matter. That was not correct because basic structure had never been applied to 31C. The majority six had said 31C had to stand because you could not touch constitutional amendments. It also went on to say it was very difficult to conceive of a case would violate Articles 14 or 19 if a law were truly under the Directive Principle of 39(b) or (c).

This reasoning was specious. 19(1)(a) is the single most important right in a democracy; the right to free speech and the right to freedom of the press. Think of a law that said all newspapers over a certain circulation of x pages were either to be nationalized or shut down altogether because they are critical of government. Such a law would have passed muster. Therefore, when both Justice Khanna and Waman Rao spoke of no law being made in pursuance of 39(b) or (c) violating 14 or 19, they totally forgot the most basic, cardinal right in a democracy – freedom of speech. The most fundamental right is the right to freedom of speech and of the press. Unfortunately for us, 31C continues on the statute book as originally enacted.

In 1976, B.N. Rau’s vision was realized. Every single Directive Principle and any law made in pursuance of any Directive Principle, out go the two most basic rights: equality and all the seven rights contained in 19. This was tested in the celebrated Minerva Mills judgment and fortunately, the enlargement of the scope of Article 31C did not stand scrutiny and the court struck it down. The court correctly, for the first time, spoke of Fundamental Rights and Directive Principles being two wheels of a chariot. It spoke of the balance required to maintain a means and ends analysis. Directive Principles are the ends to be obtained by the state. The means through which they can be obtained are only through Funda-mental Rights. Once this is viewed correctly, as it was in Minerva Mills, everything becomes crystal clear.

The court went on to say that Directive Principles of State Policy are contained in every constitution, totalitarian or otherwise. Funda-mental rights may also be in totalitarian constitutions but without any enforcement machinery. The difference between our nation and many other nations is that the rights are there as is the enforcement machinery, and fortunately for us, the enlarged 31C that was B.N. Rau’s vision was rejected by the Constituent Assembly, and also by our court, so that today we actually have 31B somewhat controlled by this basic structure doctrine. I only wish the court would go into 31C again, particularly with regard to the fact that 19(1)(a) is a matter which is of fundamental importance to any democracy. If 19(1)(a) can be snuffed out by taking recourse to 39(b) and (c), we will be no different from China or Russia.

The Fundamental Duties chapter was introduced in 1976 by the Swaran Singh Committee. The committee had eight duties, two of which were that every citizen must pay his taxes and number two, every citizen must follow the Directive Principles of State Policy which today, are not in Fundamental Duties. Benjamin Franklin had said that there was no certainty except death and taxes, but what he could not conceive of was taxes that caused death. The taxes that caused death in 1976 were the income tax which was at a peak of 97 per cent with a wealth tax, if you were eligible, would come to 103 per cent.

Fortunately or unfortunately, the Swaran Singh Committee findings were not followed perhaps for this reason and therefore, the fundamental duty to pay taxes was not part of the chapter. The committee had one interesting provision – that Parliament pass a law penalizing persons or citizens who do not obey their Fundamental Duties. That too was dropped. Today we have ten Fundamental Duties with an eleventh added later. The Fundamental Rights chapter is Citizen versus State. The Directive Principles State Policy chapter is where the state is made to follow Directive Principles while enunciating laws. The Fundamental Duty chapter spells out the moral precepts plus how a citizen should behave with other citizens.

The first fundamental duty in Article 51A is that citizens have to abide by the Constitution, its ideals, institutions, and respect the national flag and the national anthem. Here is the question: How can one abide by the Constitution unless one know what the Constitution is to start with? Does not the government have a duty to spread the tenets of the Constitution in every Indian language and make sure citizens are aware of their constitutional rights?

It is essential that these moral precepts filter down to everyone. My suggestion is that the government of the day should distribute free copies of the Constitution of India in every possible language, so that every citizen knows what his rights are.
We are told to uphold the sovereignty and unity of the nation. The fourth fundamental duty states you can be called upon to defend the nation. The fifth fundamental duty is of crucial importance and is the cardinal value of ‘fraternity’ which is now in our Fundamental Duties chapter, and not in Fundamental Rights or Directive Principles chapters. Here it empha-sizes the extreme importance to honour other citizens in a spirit of brotherhood transcending religious, sectarian and other fissiparous tendencies, and to abjure practices which are derogatory to women. Most importantly, the key word here is ‘transcending’.

We have a fundamental duty in respecting our composite culture. For me, fraternity is extremely important. Criminal law is sometimes used selectively. To check this there are some interventions that are essential, For one, civil courts should take up any suit filed by any citizen against, for example, hate speech. Hate speech disrupts harmony. It disrupts brother-hood. Therefore, the moment a citizen petitions a court against hate speech, the court cannot merely issue a declaration and an injunction because of the fundamental duty. It must also award punitive damages. Nothing hurts more than that which hurts the purse. If the courts were to take cognizance of civil suits in which these three things are done, it would go a long way towards preserving and protecting fraternity.

Fortunately for us, a recent Supreme Court order went out of its way to say that every authority must act the moment there is hate speech, and if the authorities do not act, it will be seen as contempt of court. This was a good step in the right direction. Another very important step is a civil step given this fundamental duty and given the fact that the Fundamental Duties chapter, unlike both fundamental rights and directive principles, is silent on the court’s role. This can be corrected.

A civil suit could encompass any civil right, which is in fact a constitutional right. It is higher than any statute. If we are going to live by the cardinal principle of fraternity, this is the only way. It is the only constitutional method of assuring the dignity of every individual citizen of this country and of ensuring the unity and integrity of the nation. It must be given some teeth. I can only quote from Justice Jackson’s great judgment in West Virginia Board of Education versus Barnett which was the Jehovah’s Witness case of 1943, where they refused to salute the U.S. flag and Justice Jackson upheld their right not to salute the flag because they had a serious conscientious religious objection to it.

In India these words apply all the more because of the massive diversity this country has unlike America. The words are, ‘if there is any fixed star in our constitutional constellation, it is that no official high or petty will be allowed to prescribe what is orthodox, in politics, nationalism, religion or any other mode of thought.’ Beautiful words.

When no official is allowed to interfere with that diversity, it translates into unity, not otherwise. I will end by sharing with you another Jehovah’s Witness case, this time from the Supreme Court of India. I quote Justice Chinnappa Reddy’s great words where he ends Bijoe Emmanuel, which was another case where children of Jehovah’s Witness refused to sing the national anthem, again on religious grounds. He put it beautifully when he said: ‘our tradition teaches tolerance, our philosophy preaches tolerance, our constitution practices tolerance, let us not dilute it.’

Footnotes:

* Edited speech delivered by Justice Rohinton F. Nariman at the 13th V.M. Tarkunde Memorial Lecture, New Delhi, 11 November 2022.