Fundamental Rights and DPSP : Analysis of Conflict

In this article, we will discuss the conflict between Fundamental Rights and DPSP (Directive Principles of State Policy) in a simple and easy way, and try to understand its various important aspects;

Before going through this article, you should make sure that you have understood the Fundamental Rights and Directive Principles of State Policy (DPSP) . This article is a bit long but you must read it with patience till the end, by doing this all your doubts will end.

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Conflict between Fundamental Rights and DPSP

Talking about the Fundamental Right, it is enforceable, that is, if it is violated, One can directly go to the Supreme Court and the protection of the Fundamental Rights can be demanded,

While the Directive Principles of State Policy under Article 37 are non-enforceable or non-justiciable, but the same Article also imposes a moral obligation on the State that the State shall incorporate these elements while making laws. And this is where the conflict started because there are many Directive Principles which do not match with the Fundamental Rights. Let us understand this with an example-

Example of Conflict between Fundamental Rights and DPSP

Article 14, Article 15 and Article 16 talks of equality. Particularly speaking of Article 15, it prohibits discrimination by state, on grounds of sex, caste, religion, place of birth or race.

Speaking of Article 16, it says that equal opportunities shall be available to all for employment or appointment to any office under the State and the State shall, here also, not differentiate on grounds of religion, caste, sex, place of origin, or race.

At the same time, Article 46 of the Directive Principles of State Policy, talks about promoting economic and educational interests of scheduled castes and tribes in order to bring them into the mainstream of the society.

The contradiction here is that – on one hand Article 15 and Article 16 talks about equality, while on the other hand Article 46 talks about special facilities or say reservation for SC and ST category.

Now again a problem comes here too, if we protect equality, then the people of the lower classes will never be able to come in the main stream and if they give reservation, then equality will not be left.

An interesting case related to this is the case of Champakam Dorairajan vs State of Madras. The matter was decided in 1951. Let’s see what it was.

Champakam Dorairajan vs Government of Madras, 1951

In fact, a girl named Champakam Dorairajan could not get admission in a medical college in Madras only because seats there were reserved for different sections of the society by an order of the government. Which was something like this.

Out of every 14 seats, 6 seats are for Non-Brahmin (Hindu), 2 seats for Backward Hindu, 2 seats for Brahmin, 2 seats for Harijan, 1 seat for Anglo-Indians and Indian Christians and 1 for Muslims.

Champakam Dorairajan was a Brahmin girl and due to less seats for her, she could not get admission. So he filed a petition in the Madras High Court regarding the violation of his fundamental rights.

Champakam Dorairajan’s Argument

She said that this cannot be done under Articles 15 and 16. Along with this, she also talked about another Article 29(2) in which it has been clearly stated that in any institution aided by the State Fund, any citizen on the basis of religion, caste, race, sex and place of birth shall not be discriminated.

On the basis of this argument, it can be absolutely said that the reservation of seats was wrong. But then the argument was also given by the government.

government’s argument

The government cited Article 46 of the DPSP, and said that since seats can be reserved on its basis of this article, So, it was done. And Article 37 also says here that it will be the duty of the state to implement it .

Now when this matter went to the Supreme Court, the question before the Supreme Court was whether the violation of Fundamental Rights can be justified on the basis of DPSP?

Supreme Court’s decision

The Supreme Court said that the reservation given on the basis of community violates the fundamental rights, therefore the state cannot make a system of reservation on the basis of caste or religion in the matter of admission, because it violates Article 16(2) and Article 29(2).

Along with this, the Supreme Court said another big thing that whenever there is a conflict between the Fundamental Rights and the Directive Principles of State Policy, then in that case only the Fundamental Right will be considered effective and not the DPSP.

However, the Supreme Court made it clear that the Fundamental Rights can be amended by the Parliament through the constitutional amendment process.

Overall, in the month of April 1951, it was finalized that now reservation cannot be given on the basis of DPSP. But the government had to give reservation.

The Prime Minister of that time,  Jawaharlal Nehru,  who was a leader of a socialist ideology, understood that if the deprived sections of the society were to be brought into the mainstream, then the Constitution would have to be amended.

Because if this is not done, then the Supreme Court will hang its leg every time and the deprived of the society will always remain deprived. This is how the first constitutional amendment came into existence.

first constitutional amendment

Pandit Nehru got the first amendment in the constitution done in 1951 itself which was something like this;

A new clause 4 was added in Article 15, in which it was written that no matter what is written in Article 29(2) , if the state wants, then for the upliftment of the socially and educationally backward citizens or SC and ST class. state may make any special provision.

The second amendment was made to Article 31 . In this a new clause Article 31A was added through which it was made easy to acquire land from Zamindars and others in public interest.

Apart from this, Article 31B was also added, under which the Ninth Schedule was made and it was written that even if any provision inserted in the Ninth Schedule violates the Fundamental Rights, then it cannot be challenged in the court.

That is why the first constitutional amendment of 1951 became so important because it paved the way for the abolition of reservation and zamindari system i.e. land reforms.

challenge to the first constitutional amendment

When the land of many zamindars was being acquired by the government through this first constitutional amendment, Shankari Prasad, a zamindar from Bihar, challenged this first constitutional amendment on the ground that it violates the fundamental rights because Article 13 It is clearly written that any law that abrogates the Fundamental Rights shall be struck down to the extent that it violates the Fundamental Rights. That is why the amendment made on the basis of Article 368 should be treated as unconstitutional.

The Supreme Court said that under Article 368, Parliament has the power to amend any part of the Constitution, including the Fundamental Rights, because Article 13 refers to the word ” law ” and not to the word ” constitutional amendment “.

When land reform was implemented in Rajasthan also through the 17th Constitutional Amendment 1964 , and land was taken from the landlords there, then a landlord Sajjan Singh reached the court regarding this matter.

He also said the same things in the court as Shankari Prasad had said. That is, on the basis of Article 13, declaring the laws that reduce the fundamental right as unconstitutional.

The Supreme Court gave the same verdict in this case as it had given in the Shankari Prasad case. That is, the Parliament can also amend the Fundamental Rights through constitutional amendment under Article 368.

Golaknath case 1967

This is also a matter of land acquisition. When the lands of Henry Golaknath and William Golaknath were snatched in Punjab, they reached the Supreme Court. In fact, what happened was that under the Punjab Security of Land Tenures Act, 1953, the lands of these two brothers were snatched away by the Punjab government. And then this act was put in the Ninth Schedule through the 17th Constitutional Amendment Act 1964 so that it could not be challenged in the court.

So Golaknath challenged that Act as well as the validity of putting it in the Ninth Schedule. Overall, he raised almost the same issue as in the case of Shankari Prasad and Sajjan Singh.

Supreme Court’s decision

This time the decision of the Supreme Court was shocking because it said in its judgment that
(1) Parliament cannot tamper with the Fundamental Right by using Article 368 in any situation because amending the Constitution is also a “Law”.
(2) Whatever laws have been made in this regard till now and anyone whose land has been snatched can not be returned but from now on these laws are illegal and it cannot be used anymore.

In this way, the Supreme Court changed its own decision given earlier and brought a new system. Which was very disappointing for the government because if the land was not taken from the zamindars or others, then how would the development work.

Indira Gandhi was in power at that time but in a very weak position. That’s why there happened a event called R. C. Cooper v. Government of India case in 1970. This was a matter related to nationalization of banks. What was that, let’s understand it.

R. C. Cooper Vs. Government of India Case 1970

Indira Gandhi’s government at that time wanted to extend banking facilities to the remote areas of the country or the areas deprived of banking facilities.

She could have done so because ‘b’ and ‘c’ of Article 39 give reasons for doing so. Article 39B, where lays emphasis on the equitable distribution of material resources of the community for the common good. Article 39C lays emphasis on preventing the concentration of wealth and production.

In 1969, the Indira Gandhi government introduced the Banking Companies (Acquisition and Transfer of Undertaking) Ordinance. Under which the government nationalized 14 banks.

These 14 banks were selected on the basis of deposits, that is, only those banks whose deposits were more than 50 crores at that time were selected. Out of these 14 banks, the shareholder of 2 banks (Bank of Baroda and Central Bank of India) was RC Cooper.

RC Cooper’s main problem was with the compensation system. In fact, there was a provision in the ordinance brought by the government that after the acquisition of banks, the compensation that its shareholders would get would be based on mutual agreement. If this settlement fails, then the matter will be referred to the tribunal and then the amount that will be settled there will be given to the shareholder after 10 years.

Whereas under Article 31(2) the provision of compensation in such cases was that whenever the government acquired any property, the owner or shareholder of that property would be given such compensation by the government as would have been made according to the market value of that time.

In view of such situation, in 1970 R. C. Cooper filed a petition in the Supreme Court against the Government of India.

The government’s argument was that we have done this work under the Directive Principle of State Policy, while RC Cooper said that my fundamental rights have been violated by this.

Supreme Court’s decision

The Supreme Court, giving a 10:1 decision, said that
(1) a law made by the government violates Article 14. Why? Because the government took only the bank with deposits of 50 crores, it discriminated others.
(2) This law violates Article 31(2) because the compensation system mentioned in this law is inconsistent with Article 31(2).

In the 1970s R. C. Cooper won that case and the government lost the case. The Supreme Court once again gave priority to the Fundamental Rights over the Directive of State Policy.

Indira Gandhi’s return to power in 1971

In the 1971 elections, when Indira Gandhi came to the government with an absolute majority, she first dealt with all this. How?

Overturning the Golaknath Judgment

Indira Gandhi overturned the Golaknath case by making the 24th Constitutional Amendment to the Constitution. In which it was said that Parliament cannot make any change in the Fundamental Right on the basis of Article 368, if it is done then it can be nullified on the basis of Article 13.

The government, through the 24th Constitutional Amendment, amended Article 13 and added Clause 4 and made it written that – Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

Similarly, in Article 368 , it was written that – Notwithstanding anything in the Constitution, Parliament can amend any part of the Constitution.

In this way the Golaknath case was nullified and again the same situation prevailed as the Golaknath case was before 1967.

Reversing the RC Cooper Case

After overturning the Golaknath verdict, through the 25th Constitutional Amendment, The decision in the RC Cooper case was overturned. How was this done?

In Article 31 ‘C’ it is written that –

(1) Notwithstanding anything contained in Article 13, any law which is made keeping in view the Directive Principles of State Policy, shall not be deemed to be void on the ground that it Violates Article 14 or Article 19.

(2) No law declaring to give effect to such policy shall be challenged in a court of law on the ground that it does not affect such policy.

This is how Indira Gandhi nationalized banks. Hope you understand..

[Then later in 1978 through the 44th Constitutional Amendment, the right to property which was described under Article 19(1)(f) and Article 31. It was removed from there and made it a constitutional right under Article 300 ‘A’]

Article 300A states that – No person can be deprived of his property except by authority of law. That is, now a person can be deprived of his property under the law.

Kesavananda Bharati case 1973

This issue is also related to land acquisition. The land of Kesavananda Bharathi, the director of the Math in Kerala, was acquired under the Kerala Land Reforms (Amendment) Act 1969. And this law was put in the 9th Schedule by the 29th Constitutional Amendment 1972.

Kesavanand Bharati filed a petition in the Supreme Court and demanded the protection of fundamental rights under Articles 25, 26, 14, 19(1) (f) and Article 31.

Along with this, he also included the 24th Constitutional Amendment and the 25th Constitutional Amendment in this matter and said that through this amendment our fundamental rights have been violated, especially the property under Article 19(1)(f). Right.

Question before Supreme Court

1. Is the power of the Parliament to amend the Constitution unlimited under Article 368? In other words, can the Parliament amend any part of the constitution even to the extent of taking away all the fundamental rights?

2. Are the 24th and 25th Constitutional Amendments valid?

Supreme Court’s decision

The 13-judge Bench of the Supreme Court (which is the largest ever Bench) on 24 April 1973, by a majority of 7:6, gave a landmark judgment that –

1.  The 24th and 25th Constitutional Amendments are completely correct.

However, the second part of Article 31C which was amended through the 25th Constitutional Amendment (which provided that the policy made under it could not be challenged in court) was declared unconstitutional by the Supreme Court. Under this, the court said that – Judicial review is a basic feature of the Constitution and that is why it cannot be taken away.

2.  Parliament can amend any part of the constitution even if it is a fundamental right. But Parliament must always remember that the power to amend the constitution is not the power to rewrite the constitution.

Then the Supreme Court put the ‘Basic Structure of the Constitution‘ system in front of everyone. In this case, the Supreme Court clearly said that with the help of Article 368, Parliament can make any kind of amendment in the Constitution, but Parliament  cannot make any change in the basic structure of the Constitution.

What will be the basic structure and what will not, the Supreme Court will keep telling it from time to time. [For what this is, you can read the Basic Structure of the Constitution]

42nd Constitutional Amendment 1976

Two years after the Kesavananda Bharati case verdict (1973), a state of emergency was imposed in the entire country. In the midst of this emergency, the 42nd Constitutional Amendment was done in 1976. Through this constitutional amendment, the constitution was amended to such a large extent that it was called a mini constitution.

What was decided by the Supreme Court by the Kesavananda Bharati case was violated by this 42nd Constitutional Amendment case. As such – the power to take away the power of judicial review of the Supreme Court was not given to the Parliament but still it was done by this amendment act. 

Under this, Article 368 was amended and clauses 4 and 5 were added, the basic meaning of which was that the amendments being made in the Constitution under Article 368 or that which have been done cannot be judicially reviewed.

Secondly, in the Kesavananda Bharati case, the Supreme Court had said that Parliament can amend the Constitution but cannot rewrite the Constitution. Through the 42nd Constitutional Amendment, so many changes were made in the constitution that in a way it was like writing a constitution.

Overall, the Directive Principles of State Policy were made effective on the Fundamental Rights. Especially on those rights which are mentioned in Article 14, 19 and 31.

These provisions were set aside by the Supreme Court in the Minerva Mills case (1980). (Remember here that some of the provisions of the 42nd Constitutional Amendment were also repealed by the 44th Constitutional Amendment 1978.)

Minerva Mills case 1980

Minerva Mills was a textile mill located in Karnataka. Around 1970, the government felt that the production in this mill had reduced. A committee was constituted under the Industries Development Act 1951 to investigate this.

In October 1971, the committee submitted its report to the government (elections were held in March 1971, in which Indira Gandhi came to power with an overwhelming majority). As soon as the government received the report, the government transferred the management of Minerva Mills to the National Textile Corporation Ltd. under the Industries Development Act 1951..

Later, under the Sick Textile Undertakings (Nationalisation) Act, 1974, the government nationalized it and took over. And through the 39th Constitutional Amendment, it was put in the Ninth Schedule so that it could not be judicially reviewed.

[But that was not the only thing. Because the Allahabad High Court in Indira Gandhi Vs. Rajnarayan case declared the election contested by Indira Gandhi in 1971 invalid. Let’s understand it.]

Indira Gandhi Vs Rajnarayan Case

In the 1971 election, Indira Gandhi won the election from Rae Bareli but the runner-up Rajnarayan challenged Indira Gandhi’s victory in the Allahabad High Court on the ground that she used government officials and government resources for her electoral gains while in government. Which is a violation of section 123(7) of the Representation of the People Act, 1951.

On 12 June 1975, the Allahabad High Court considered it right and annulled Indira Gandhi’s election as well as barred her from contesting elections for the next 6 years.

This meant that now Indira Gandhi had to resign from the government and the government would fall. But Mrs. Gandhi did not do so, she challenged it in the Supreme Court (one of the reasons was that the Chief Justice at that time was AN Ray and he is considered Mrs. Gandhi’s favorite judge).

Anyway, he imposed emergency in the country on 25 June 1975 and in August 1975 made the 39th Constitutional Amendment. Under which the case of Minerva Mills was included in the Ninth Schedule as well as some other changes were also made in the constitution. For example, by amending Article 329, a new part Article 329A was added, under which there were 6 clauses. In which it was mainly said that the election of the Prime Minister cannot be challenged in any court.

Especially because its fourth clause was quite controversial, in which it was originally written that any law made by the Parliament before the 39th Amendment to the Constitution, which deals with the filing of petition against the election, does not make such an election void.

Question before Supreme Court

The question before the Supreme Court was that (1) Is clause 4 of Article 329A constitutional? (2) Can the election of Indira Gandhi be declared void.

Supreme Court’s decision

In November 1975, the Supreme Court declared Indira Gandhi’s election valid, but at the same time the fourth clause of Article 329A was declared invalid and also said that free and fair elections are the basic structure of the Constitution. (However, under the 44th Constitutional Amendment of 1978, this entire article 329A was repealed)

Secondly, he considered the rule of law to be the basic structure of the constitution and tried to establish that no one is above the law.

So the meaning of saying is that this was also one of the reasons behind changing so many things by making 42nd amendment in the constitution. Now Coming to the Minerva Mills Case

Minerva Mills…….

We saw above how the government nationalized and took over Minerva Mills.

Minerva Mill’s Argument

They challenged the order of nationalization of Minerva Mills as well as some provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974 such as Section 5(b), 19(3), 21, 25 etc. .

but most important is, Section 4 and Section 55 of the 42nd Constitutional Amendment Act 1976 were also challenged Apart from this, the supremacy of Directive Principles of Policy over Fundamental Rights was also challenged.

Question before Supreme Court

The changes made in Article 31C under Section 4 of the 42nd Constitutional Amendment and in Article 368 under Section 55, does it harm the basic structure of the Constitution?

Can the Directive Principles of State Policy be considered supreme over the Fundamental Rights?

Section 4 of the 42nd Constitutional Amendment

Article 31C was changed through section 4 of this amendment act. Where earlier it was written that – A law made on the basis of Articles 39B and C cannot be declared void on the ground that it contravenes Article 14 or 19.

Now it was changed and it was written that if any law is made under any provision of the Directive Principle of State Policy, then it will not be rejected on the ground that it violates Article 14 or Article 19. This was called the supremacy of DPSP over Fundamental Rights.

Section 55 of the 42nd Constitutional Amendment

Clauses 4 and 5 were added to Article 368 through this section, the provisions of which were as follows –

4 – Any amendment of the Constitution (including amendment to the Fundamental Rights) which has been amended under Article 368, whether before or after the introduction of Article 55; It cannot be challenged in court on any ground.

5 – For the removal of doubts, it is declared that there shall be no limitation on the constituent power of Parliament to amend or repeal a provision of the Constitution under Article 368.

Supreme Court’s decision

The Supreme Court ruled in 4:1 that (1) Sections 4 and 55 of the 42nd Constitutional Amendment Act are unconstitutional. The power of the Parliament to amend the Constitution is not unlimited, because the limited power of the Parliament to amend the Constitution is the basic structure of the Constitution. (2) The validity of the Nationalization Act 1974 was considered correct.

In this way, once again the importance of Fundamental Rights was considered more than the Directive Principle of State Policy and harmony and balance between Fundamental Rights and DPSP was considered as the basic structure of the Constitution.

These are some of the most important cases of conflict between Fundamental Rights and DPSP (Directive Principles of State Policy), hopefully understandable. To see the list of basic structure of the constitution, visit the given link.

Fundamental Rights and DPSP Practice Quiz – upsc

Important links,
मूल संविधान भाग 3^↗️ भाग 4^↗️
The case that saved Indian democracy
Keshvananda Bharati v State of Kerala, (1973)
Kesavananda Bharati … vs State Of Kerala And Anr on 24 April, 1973
R. C. Cooper Vs Union of India ( Bank Nationalization Case)
The State Of Madras vs Srimathi Champakam … on 9 April, 1951 and youtube
Minerva Mills Ltd. & Ors vs Union Of India & Ors on 31 July, 1980
Minerva Mills vs Union of India
Indira Nehru Gandhi vs Shri Raj Narain & Anr on 7 November, 1975
THE CONSTITUTION (FORTY-SECOND AMENDMENT) ACT, 1976
The Constitution (Thirty-ninth Amendment) Act, 1975 आदि।