What are the Fundamental Rights in India’s Constitution? What is the relationship between the Fundamental Rights and Directive Principles of State Policy?

Rule of law principles embedded within our Constitution create the legal and institutional framework to protect the Fundamental Rights. The Fundamental Rights are contained in Part III (Articles 12 to 35). These are basic civil liberties guaranteed to every citizen of the country (some rights are also assured to non-citizens within the territory of India) against unjust and arbitrary action by the State. There are six categories of Fundamental Rights:

• Right to Equality - Articles 14 to 18
• Right to Freedoms - Articles 19 to 22
• Right against Exploitation - Articles 23 and 24
• Right to Freedom of Religion- Articles 25 to 28
• Cultural and Educational Rights - Articles 29 and 30
• Right to Constitutional Remedies - Article 32

The Fundamental Rights are not absolute. They come with “reasonable restrictions” and exceptions which not only attempt to balance an individual’s liberty with that of another individual or in the interest of the nation, but also serve the purpose of enabling a just and equitable society. When the government makes laws to circumscribe the rights, it must ensure that such laws are reasonable, both in the substance and proportion, and cannot exceed the scope of the restrictions written into the text of the Constitution.

Fundamental Rights (except Articles 20 and 21 - the right to life and personal liberty) can be suspended under Article 359 when a National Emergency has been declared (under Article 352). In the Constitutional history of India, Article 352 was invoked three times - in 1962 during the India-China war and in 1971 during the India-Pakistan war. The third occasion - between 25 June 1975 and January 1977 - has been the most controversial, officially declared because of “internal disturbances”, in the backdrop of great political instability.

Directive Principles of State Policy (DPSP) versus Fundamental Rights

Directive Principles of State Policy (DPSP) (Articles 36 to 51) contain several entitlements which the State must provide to create a welfare state, based on social, economic and political justice. Unlike the Fundamental Rights, which are negative in nature, DPSP seeks to create positive rights such as free legal aid, early childhood education, panchayats, a uniform civil code, maternity relief, unionisation in industries, public health, agriculture and animal husbandry, and the environment. Also, unlike the Fundamental Rights, the DPSP rights are not justiciable - if the State fails to operationalise these policies with actual rights, citizens have no recourse to the Constitutional Remedies.

Since DPSP are viewed as conflicting with the Fundamental Rights, they have been a source of contestation between the State intent on implementing policies benefiting the community at large and the judiciary mindful of upholding the fundamental rights of the individual.

Current judicial interpretation is that the Basic Structure Doctrine takes precedence over the DPSP, with the hope that the government will harmonise Fundamental Rights and the DPSP to give effect to the Constitution’s goals. Examples of such harmonisation -

• Constitution has been amended to introduce the Panchayati Raj system (Part IX-Articles 243 to 243(O) by operationalising the DPSP in Article 40 (organisation of village panchayats); the Fundamental Right to Education has been introduced in Article 21A, implementing the DPSP in the original Article 45 (free and compulsory education for all children upto 14 years);
• Laws have been passed to enable DPSPs for free legal aid (Article 39A), a Uniform Civil Code (Article 44), the protection and improvement of the environment, forests, and wildlife (Article 48A), and equal pay for equal work for men and women (Article 39), etc.