Chapter: 5 Fundamental rights, directive principles and policies of state.

Fundamental rights, directive principles and policies of state. 

• FRs are the modern name of natural rights – Golakhnath Vs State of Punjab. 
• Every FRs is of equal importance and has no hierarchy.- - Prem Bahadur Khadka Vs Government of Nepal.
• FRs occupy a unique place in lives of civilized society and has been describes as universal, transcendental, inalienable and primordial. - Kesavananda Bharati Vs state of Kerala

Features of FRs:

• FRs as a result of revolution
• FRs as a fresh start
• FRs as fundamental.
• FRs as limitation to government
• FR as development.

FRs are reviewed by the court under strict scrutiny, and it also see narrowly teller Concept. Compelling interest (whether the law passed by legislature was really necessary for society.)

Fundamental rights can be analyzed from 3 philosophical perspective: 

1. Rights Perspective: Fundamental rights are inherent and inalienable, belonging to every individual by virtue of being human.
2. Contractualist Perspective: Fundamental rights arise from social contracts where individuals agree on mutual obligations and protections within a society.
3. Democratic Perspective: Fundamental rights are essential for ensuring equal participation and representation in the democratic process. 

Directive principles (DP) and policies of state (DPSP):

• They are a social destination or an end (Ultimate goal) of the government.
• They are the subject of institutionalization through Acts of government. 
• The practice of directive principle can be traced back to 1936 in the constitution of Ireland. 
• Ambedkar has expressed that, ‘directive principle is another name for the instrument of instructions.

Cases:

1. Yogi Narhainnath V. PM G.P Koirala and others, NKP, 2053 (D.N. 6127)

• Though directive principles can not be raised in court, but if the government goes and take decision against the directive principles and policy then, it can be questioned. 

2. Prakash mani sharma Vs. HMG, N.K.P 2054, (D.N 6391)

• Supreme court ruled that, the DP under constitution are not meaningless. 

3. Rabindra Prasad Dhakal Vs. Home ministry and others, N.K.P 2064, D.N 7817.

• Supreme court held that the directive principles are the commitment of state. 

Utility of DPs and policies of state. (Importance);

• For socio-economic transformation.
• For roadmap of the state
• For institutional legitimacy
• For legality of government
• To direct the work of government. 

Inter-relation between FRs and DPSP:

Following points shows the inter-relation between FRs and DPs:

• Prudence of FR over Directive principle and policies of state. 

State of Madras V. Champakam DorajRajan (1951);

Here, the court held that, the laws made to implement directive principle can’t take away FR. 

• Doctrine of integrated scheme (Equally fundamental):

Golaknath V. State of Punjab (1967):

FR and directive principle forms an “Integrated scheme”. 

• Doctrine of harmonious construction.

Olga Tellis V Bombay Municiple corporation (1985)

Court held that, ‘Directive principle are equally fundamental to the meaning and content of FR.’ 

Some points to establish dichotomy between FRs and DPSP:

1. On the basis of definition: 
2. On the basis of utility
3. On the basis of Justifiability. 
4. On the basis of state obligation
5. On the basis of character
6. On the basis of nature.

Landmark Judgement on Fundamental Rights: 

1. Annapurna Rana V. Gorakh Shumsher JBR and others. 

• Right to privacy for the first time in 1998.

2. Surya Prasad Dhungel V. Godawori marbles industries.

3. Man Bahadur Bishwokarma V. Law ministry and others.

4. Meera Gurung V. Immigration Department and others.  

Significance of directive principles, policies and obligations of state; 

Since state is not able to provide all rights at a time but state should provide those rights slowly in accordance with improvement of country. Therefore DPs, policies and state obligation are important to remind the state or to put pressure on state. ( see importance provided above) 

Justifiability of directive principles and the south Asian perspective:  since all south Asian countries are not developed, they can not provide economic benefit related rights such as free education, health, housing. 

In south Asia, these principles are important to remind and give moral pressure to the government. 

                                                                                                                                                                                                     Prepared and Edited By: Manish Rajak & Madhu Dahal