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·CONFLICT OF
FUNDAMENTAL RIGHTS
AND
DIRECTIVE PRINCIPLES
Dr RAJENDRA SHARMA
DEPT OF POLITICAL SCIENCE
UNIVERSITY OI JODHPUR
USHA PUBLISHING HOUSE
JODHPUR-JAIPUR

·Published by Ugh. Thanxi
USHA PUBLISHING HOUSE
Neem Street Veer Mohalla
JODHPUR (India)
C Dr Rajendra Sharma
First Edition
January 1977
Printad att
KUALITY PRINTERS
JODHPUR

·Dedicated to Late Pt Jawahar Lal Nehru and all
other freedom fighters who enabled us to live in a fres
country
Di Rajendra Sharma

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·Preface The conflict of Fundam atal Rights an1 Directive Prıncı Almost all the ples is almost as old as the Indian Czastitution major decisions of the courts and important amendmønts of the constitution are related in one way or the other to this conflict In fact the glimpses of this conflict were seen even during the time when the Constituent Assembly was framing thº constitution. In the Constituent Assembly many members emphasised that the Fundamental Rights due to so many limitations have no real value On the other hand many members expressed their disappointment that many important rights of the citizens such as the right of employment right of education and right of maintenance in old age sickness etc have not been included in the justiciable fundamen tal rights but have been included in the Directive Principles It was pointed out in the Constituent Assembly that the Draft Constitu tion is almost silent regarding economic side of the problem of the masses. It is rather anxious to safeguard the anctity of property, it is rather anxious to safeguard the rights of tho e who have gor sone ching and it is silent about those who are dispossesed and have got nothing While there is much about the sanctity of pro perty and the inviolability of prop ry things such as right to work, Tight to means of livelihood and right to leisure etc have been left out and thesc things should have been effectively incorporated in the constitution. (Constituent Assembly Debates 6th November 1978 255 Shri Arun Chand Guha) Similarly Shri T Prakasham expressed regarding the Drafi Consti ution Instead of having a constitution based on a socialist basis in the manner in which Gandhiyi had formulated for thirty long lears that socialist bags has all been thrown off and a capitalist basis is being introduced That will be the result of this constitution Today we are in the throes of a famine for food and cloth and I would ask Dr Ambedkar whether this Constitution would solve 25% of these problems To my mind of us not possible so long as the capitalist system is keps up (CAO 6th Nov 1948 page 258 259) These germs of the conflict seen during the framing of the constitution assumed larger proportions lateron and the controversy regarding relative em ·is [ 2 1 phasis on the value of Fundamental Rights and Directive Principles have been discussed in various state legislátures Parliament and in the courts of law Fundamental Rights in the Indian Constitu t1ºn have beep made justiciable according to the article 32 and article 226, and ihe provisions of Part IV under the Title - The Directive Principles of the State Policy, according to the Article 37 have been made non - justıcıable Due to this arrangement it generally presumed that the articles of Part IIIrd enjov a special privilege and importance As a natural Corollary of this it is also generally assumed the Directive Principles are of inferior status in relation to fundamental rights This view has Geen generally accepted and has also been propounded, professed and upheld by our courts, but the motives and practical nece saty for making one part judicially enforceable and o her not so have been missed and ignored when the Indian Constitution became operative many important fundamental, rights of the citizens such as those of employment, education and humane conditions of the work etc could not be provided in the chapter of Fundamental Rights because the financial and other resources of the state were not adequate and hence th y were assigned to the part fourth of the constitution the Directive Principles ull conditions for their effective realızation are achię zed, in future This was the simple reason for making the articles of Part IVth nen justiceable but some how it has be n assumed due to this that they enjoy a a subsidiary status In fact many importunt rights have been included in the Directive Principles towards the realization of whuch the State has to move Thus the rights of the Part IVth of the Constitution are the ideals of Our Constitu tion and it is the constitutional duty of the State to move in that Direction Honeyer, very often the realization of the circums tances as expressed through the ideals of Directie Principles have been hampered and thwarted by the rigid interpretation of the constitution in the defence of certain Fundamental Rights The Fundamental Rights represent some thing static, they represent those conditions of rights which already, exist The Directive Principles represent dynamic ideals of the future Surely, the existing conditions and facts as represented by Fundamental Rights are important but fi ture ideals are still more important If Dire ·[ 31 ctive Principles are ignored one ignores the future Fundamental Rights There can not be aný fixity, regarding the concept of Fundamental Rights in future a ine may come when due to favourable socia) conditions, many of them will have to be deleted ser eg the right regarding untouchability (article 17 of the Indian Constitution), regarding special provisions for backward and scheduled castes Similarly many provisions of Directive Prıncı ples such as that of the right to adequate means of livelihood, right of equal wages, nght of the maintenance in the old age etc will be transferred to Chapter IIIrd after appropriate amendments of the constitution The supremary of the Directive Principles over existing fundamental rights lies in the fact that they provide the guide line of the rights of future depending on the changed SO_10-economical condilions the articles of Directive Principles wall be converted into justiciable rights and will be transferred to part Ibird of the Constitution A balance between the existing facts and future ideals has to be kept but such expectations have been belied because Chapter of Furdamental Right's us conurdered In the ca e of Champakam. Dorarajan Supreme Court held that the Directive Principles of State Policy have to run as subsidiary to the Chapter of Fundamental Rights The issue of relative empha is on the values of these two parts is fundamentally related to the role of the state in modern times regarding lives of the people Tho e who believe that State should interfere least in the economic functions of the citizens, lav more emphasis on the statusquo of Fundamental Rights, and others who believe that State should interfere for regulating the economic system of the country because without it the weaker section of the communt) may not enjoy proper and sûitable conditions of life maintain that many existing Fundamental Rights are the symbols of existing inequalities and hence many Fundamental Rights should be unably amended Thus in the final analysys the conflict of Fundamental Rights and Directive Princples becomes the conflict of hayes and haves nat' and therefore Late Pt Nehru said in Lok sabha on 14th March, 1955 that if we accept the interpreta tion of the Supreme Court, there is an inherent contradiction between the Fundamental Rights and Directise Principles of our Constitution and it us upto this Parlament to remove that contra & sacrosanct ·[ 4 ] diction and make the Tundamental Rights subscrve the Directive Principles More often our Constitution has been interpreted particularly in relation to Fundamental Rights on the basis of the ideals and principles of constitutions of other countries and it has been often missed that our constitution has been framed to solve our own problems which are different from those of other countries due to historical and social consequences For a correct understanding and interpretation of the constitution its historical background and the aim and purposes for which the constitutions are made shculd not be ignored the articl s of the Constitution shruld not be in crpreted in isolation having no organic relation with the history of the movement which proce ded the establishment of the consts ution In this work I am mainly concerned with the conflict of Fundamental Rights and Directre Principles regarding the issues and problems of economic and social nature only which create obstacles in the realisztion of an cgaltarıın society Regarding other fundamental Rights we are not concerned at all In thus work I base endeavoured to emphasize that constitution and insta utions of political organisation should be understood in relation to thesr historical background that often conflict of Fundamental Rights and Lirective Princ,ples has arken due to the rigid defence of fundamental Rights and at times the proceedings of the constituent Assembly lave not been taken into consideration, that the Fundamental Rights of the citizens are not coi tained only in Part IIIrd of the Constitution the classi firation of rights in tho parts was done for the sale «f expediency, trose rights which could be provided immediately by the State were assigned to the part Ilird and wluch State umed to make available in future depending on its cconomic and cther resources have been included in part IV th of the Constitution that the scope and extent of Fundamental Rights is conditioned by the economic and soc al needs and policies of h state te political rights are not suflicient in themsekes they should lead to the establishment of economic and social rights as well, and that Directive Principles are related to an advanced stage of Indian Society and politics It is a sicred duty of any democratic Govt to implement pledges given to the public at the time of elecuion ·IS) I have quotrd the seus of Pt Nehru on a scale which may appear disproportionate but this has been done on purpo c in the belief that he was al e guiding spirit of our Constitution both in its formalne and operatic phase I was Pc Nchru wan? fou ht for the relization of the estaklıshment of Constituent As embly, it was he who had the rare distinction and honour of introducing the Cbjectiles Resolution in the Constituent Asgari bly, which became the guiding spirit of the Constituent Assembly Pt Nehru t the time of discussions of Ist and IVtlı Constitution amendment Ells cleared many intricate 2ssues of our constitution and saved the constitution, from taking a wrong direction In many places in this work I have also gli en long abstracts from the Judgements and decisions of various courts, and Supreme Court of India, this also has been done with the specific purpose of making the background of the controversy under discussion amply clear Where ever some comments have been made on the views and decisions of the courts they have been done with utmost respect and deference to the Hon ble Judges and judiciary, they are within the limits of academic discussions and they ha c been based on the support of the views of eminent authoriting on the subject This work in substance was ready for submission in July 1966 but in the arcanwhile before the Supreme Court of India Constitutional validity of the 17th Amendment Act was challenged and this case was related to Fundamental Rights and the power of amendment of the Parliament in relation to Fundamental Rights and therefore I had to wait for the decision of the Supreme Court on that issue The Supreme Court of India by a slender majority of one judge on 27th Feb, 1967 gave a decision that Fundamental Rights can not be amended by the Parliament Necessary cognisance of this decision had to be taken I express my deep sense of gratitude and indebtedness to late Prof SL Audichya Head of the Deptt of Political Science and Dean of the Faculty of Social Sciences of Jodhpur University Jodhpur for scholarly and resourceful guidance and help regarding this work I also express ay sincerst thanks to the authorities of the Library of Parliament New Delhi, Sumer Public Library Jodhpur, High Court Library Jodhpur and Central ·CONTENTS Chapter 1 II III IV VA Page Introductory 1 to 21 The Origin and background of the problem of the conflict of Fundamental Rights and Directie Principles 22 to 32 Historical background of the arms and Aspirations of the Indian constitution 33 to 49 Right to Property Background and Sources of "Rights in the Indian Constitution 50 to 67 Article 31st Its Amendments and its relation to Fundamental Rights and Directre Princi ples of State Policy 68 to 81 Arguments in favour and against the fourt Constitution Amendment bill 82 to 93 The Importance of preamble as an aid in the understanding and inter pretation of the Constitution 94 to 107 Political Theory of Liberalism its evolution and effect on Indian Constitution 108 to 120 Conclusion 121 to 144 VB VI VII VIII APPENDIX (1) Fundamental Rights (11) Directive Principles (111) Fundamental Duties (1-20) References (1-16) Select Bibliogt apby ·INTRODUCTORY 1 RES. Very often he heir of political ideals such as JUSTICI LIBERTY', 1ELTARI STATL PUBIIC WITART PECT TOR LAR "CONSTITUTIOTAI GOVERNVENT etc. In the long history of Political Thought meanings of such terms have been sarjously modified and inderstood Mernings of these terms have to be understood in the light and context or the institutions through which these ideals are to let aciueved and the society in which these institutiont operite No concept of the State and the Constitution us ever intelligible save in the context of its kustorical phase and the nçeds of the society So far India 13 concerned one cannot properly eralizate ilin significance of these terms unless one keeps in mind not only the Legal Apparatus the COVSTITUTIO\ through nluch these ideils arc to be rellized but also the hustorical background etlucal and humannarian motives of the constartition The Ethical and humanitarian clemcna underiying Law is all persading is the Indinn life B hund the removal of untouchables and prohibition of the use of alcohol and wines is not merely a legal or political ca but also the chical Behind the idea of ulje removal of the paverty is the humanistic ideal that poverty 25 a serious dras back for the fulfilment of the Human persanıšity The programmes for the aplıfsment of the backward sections of she Indian Com walinity for raising the material and cultural standards of the masses compulsory primary education, abolition of Begara and untouchability,3 prohibition of child labour,' creation af just and humane conditions of work and maternity reljef pubiig assistance in old age sicknesse etc draw inspiration from humanistic dezis In the ultimate analysis thic ethical and political aspects of the lives of citizens are the facets of the same fundamental assie the Hunan personality the Human welfare This is all the more true for the Indian Constitution because under the impact and influence of many freedom fighters notably Miahatma Gandhi she ethical and political idcals have been interwoven into one pattern one ·[ 2 ] to into The significance of this can be understood by the oft quoted statement of Gandhiji that means are as important as the end' For this reason violent revolutions drastic and brutal measures have no place in the political philosophy which sustains Indian Constitution and we have therefore chosen democratic means of progressive legislation to achieve our aims and ideals The means have to be noble good and virtuous If this aspect of the Indian life is ignored our forcign policy our programmes for social welfare, efforts for equalization of public wealth the moving forces behind Five Year Plans the significance of the Directive Principles of State Policy cannot be rightly appreciated The lines of the Preamble of the Indian Constitution WE, THE PEOPLE OF INDIA havin, solemnly resolved constitute India a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens JUSTICE social economic and political LIBERTY of thought expression belief faith and worship EQUALITY of status and of opportunity and to prom ote among them all FRATERNITY assuring the dignity of the individual and the unity of the Nation have an undercurrent of Humanism and ethical principles They all revolve round MAN because without these the indiv idual is subjected not only to legal but moral economic and social injustice Gandhiji was very fond of the following fzmous lines of poetess Mira Prabhu Haro Jan ki Pir These lines show his concern for the welfare of the common man Many provisions of the Indian Constitution and specially those of Directive Principles are agency to translate the ideals of Gandhiji into practice? Pt Nehru s Socialistic ideals also revolved round similar humanistic considerations--the ail eviation of the sufferings of the poor subjected to len rule ani feudalistic and capitalistic systems for him socialism meant service to the common an Humanistic ideal Dr Rk Rajan Head of the Department of Economics Delhi University commenting on Nehru s Socialism said the case for Socialism rested today not so much on the considerat10115 which Marx man ·8 a. [3] and Others focussed attention on, but on essentially humanistic grounds Mr Nehru s socialism as a goal offered the best prospect of meeting the requirements of Humanism and the challenge of modern science and technology in a society which at least was two centuries behind the times Our Constitution has been enacted and acrepted on behalf of the people of India and its existence is for the achievement of the welfare of the masses and not of a few The quintessence of our argument is that in the Indian Constitution, the ideals of Humanism and Socialısm have become one and these are the two guiding stars for its right underst inding The citizenship is not merely a sort of possession and gaining status It means participation and sharing an equal footing with others 112 various functions of society and the nation The aim of the political organization is to discover what place citizens merit in the community based on fair and equal oppor tunities Before independence though we were citizens in the ordinary sense of the term but we did not have effective share in running administration of the Government and the production (f the country After independence it was expected that political organization will be such that people will not only enjov political equality but economic and social equality as well We raised our voice against the privileges - Economic Social and political of the few and fought for the privileges of the common man After achieving independence it became our aim and duty to create institutions through which the privileges of the common people may be established - that is to promote the welfare of the people a social order be secured in which justice social economic and political shall inform all the institutions of the national life It has been stated earlier that true citizenship implies active participation in the affairs of the State, which presupposes the existence of a society of equals where few people do not enjoy at the cost of others Political equality 18 not enough, there should bc conditions of economic and social equality as well Without this democracy is bound to become the handmad of economic power It has been very aptly said that economic side of dernorracy 15 socialism Prof Laskt rightly says "There cannot, in a word be democracy unless there 15 socialism". We have to see what ·[ 4 ] aims our Constituion endeavours to do for the economic and social cmunicipation of the general m 153 ;? If the constitution is tested on this touch stone and if it proves so we can feel satisfied otherwise it becomes the Constitution of a few people with vested interest The essence of the matter 18 that there are two distinct clums to power one based upon the right of property and other vested interest and priveleges ind the second upon the welfare of the greater number of human b ings-the Democr aty We have accepted democratic Republic not an oligarchic government It will be disastrous if it is purported to prove that thro ugh this Constitution the interests of big property and capital ist classes are to be safeguarded specially in the sense that, 11 will be a perverted evaluation of values and Through various resolutions the Indian National Congress long before Indian independence pointed out that what will be the political and economic shape of the free India by the abolton of Zamındarı and big estates and nationalızaun of hey indust ries and services 20 Long bef re independence it was declared that Socialism is the aim of Independent India Although Gandhiji in the beginning had differences with Pt Nehru iegırdıng Social ison and held the view that Zamındars and rich people should be permitted to hold their possessions as Trustres of the peo ple but later on le was disillusioned on this issue D: O P Goyal commenting on this point says Disillusionmtnt came only when it was very late for him to do anything else His Secretary Shri Pyarelal tells us in The last phase Vol I how Gandhi Ji had realized in his later life that his capatalist friends would not become Trustees of his imagination He had started advoca ting stronger measures Pyarelal told the international seminar organized by UNESCO On Gandhian outlook and Technique in New Delhi that Gandhı had to believe that the rich must be dispossesed of their wealth and that this can be done without the necessity of paying any compensation di This is clear cut socialism In any system of Government there are and otught to be certain conceptions behind the institutions which they ought to embody the ideals of valuable political lıfe to which these institu come ·IS [ 5 tions ought to be instrumeiitals lle have to enquire and to establish to what Idents our constitution is instrumental ? It will be fruitful to trice the ideals of our constitution through the history of freedom struggle and to see liow these ideals were intended to be materialized thiroligh tlie provisions incorpora ted in the Indian Constitittion as paru tl17 v etishrızed in the Fundamental Rights and the Directit e Principles of the State Policy and also to show that in the ultimate analisis mostly Directive Pri niciples are the means for thr establishnieitt of fundamental rights of the backuard and poorer sections of the conimunity in future and to show that much which was promised and aimed at contained in them The significance of the Directive Principles should be viewed and understood in thus liglıt They are the means to establish expected social circumstafites They are to be sened as means of achieving ideals of the historical evolution of the Ideals of freedom general welfare and economi social justice These directive principles very briefly but el squiry liy duwi a policy of action for the different State Governinents ant the Central Government and in a sense thev emb dv solemnly an recul 1140 the validity of tlie charter of deinands whilh the weaker sectio is of the citizens suffering from socio-economic ij is ile would present to the respective governments for iminedite relief 11 In real democracy community should be or equtis both polati cally and economically There cannot be much maring in granting the equality of means to get it art not equally available It is quite clear that a rich man enjoys advantages in thus regard over a poorer man * The suri Ival of political democracy today in all over the World definitely impossible unless It can conquer the centtal titadel of economic poster 13 Pt Nehru was one of the thief architects of our constitution and throughout his political life was inipregnated with the ideals or socialism His interest in socialism started with rabian Socialism It is quite natural to infer that he intist have tried to enshrine these deals of socialism in the Inulan Constitution does not fit in the scheme of things and affairs that he would have agreed to a constitution supposed ld be protecting rested interests which could create obstacles in the realization of India of huś dreams and hopes Michael Brecher vrites that Lconditiic Praha ·anime Committee of the Congress, under Achru s leadership lind cfconn tht broad lines of policy nationalization of pub'ır utilities ind all delince and key industries public ownership of monop its the destruction of the manaying agency sy tenis 3s curly 1 postbc As soon as Indian Constitution became operative mini impor tant cases camc xefore the courts for decisions and mostly they were regardırg abolition of zamındari, acquisition of lands and property movable or un movable etc for public purposes and compensation for the acqured properties In fact a class war of legal nature started on the forums of the Indian courts on the issues of the fund arrentals of our constitution and political and social organization Mostly these cases hinged on the relative valur of the Fundamental Rights and the Directie Principles and also raised in turn the questior of the relatie position of the judicar, and the Parlament in relation of tic provision of these two chapters 16 In the earlier phase of the operation of our constitution Courts more often interpreted the provisions of the Indian Consti tution in general and Fundamental Rights in particular on the bas of the nature of the Constitution of USA and cqualized our I undamental Rights to the Bill of Rights of the Constitution of the USA 10 ignoring the fact that the political background of the institutions of these two constitutions and countries 18 different and due to these differences they can not be expected to produce similar aims aspirations and results The Constitution or USA more or less is the product of 18th 19th century political philosophy and Laissez faire €conomic theory that the state as far as possible should abstain froin interference in the economic affairs in the name of Liberty and Freedom and should encourage free enterprise Cur Constitution is based on the theory and background that state stould regulate the economic system so as to produce ECONOMIC JUSTICE and equality of opportunities and special care for the upliftment of backward and weaker sections of the community For this reason through planned economy (Five Year Plans) the state is expected to establish a new social order for the welfare of the people by establishing institutions and treating circumstances in which Justice social economic and political will be made available in all walks of life where there is no concentration of wealth in the private hands to the common detriment and where the ownership of the ·[ 7 ] means of production of wealth is controlled regulated or owned by is for the state for the common good The Constitution of USA while ours 15 the deſence of frec enterprise Capitalist system etc specifically for opposite ains, that is it is socialistic 17 aspiration To understand and interpret these two constitutions which are supposed to uphold quite opposite economic systems on the same principle does not seem to be sound Such interpreterers have been often misled by some similarities because both these Constitutions are written and contain Fundamental Rights but have ignored the differences of motive forces and real aims the real ideals of the two constitutions have been confused Socialistic aspirations of our Constitution have been mostly incorporated in the Articles of Directive Principles With due defer ence to the courts it is to say that they have over emphasized the importance of Fundamental Rights Chapter, and under estimated that of the l'irectie Principles and even eminent commentators of our Constitution have field such views 17 "Hence the question of priorita in case of conflict between the two classes of provisions may casily arise hence in case of any conflict between Part III und IV of the Constitution there is no doubt that the foumer will prevail in the courts 18 and supparts following judgements of the Supreme Court In the case of Champakam Dor tryin Vs State of Vadras comn enting on the relative , aluc of these t vochapters and sccking lo establish n perpetual principle of the interpretation of the constitution Justice Dass on behalf of the Supreme Court held The learned Ads ochte General of Madras es en contends that the prorusions of Article 46 over ride the provisions of Irticle 29(2) we reject tlic abo noled contention completel Ilie Directie Prin ciples of the State Policy have a conform to and run 25 sulysdrary to the chapter of Fundanicnt al Rights in our opinion that is the correct way in unch the pros 11011s found in lart III (Fundamental Ragbis) and IV (Duectus c Principles llave to lie undustood The chapter of Fundamental Rights k a sacros inet ind not is able to lx nurilged In 1 le, ist sise o executie klojerder except to ti extent prouded in the appropriate TRUCII IPIRII 19 Similarli Dr Chatterjee pointed out in the Ioh Sabhu on Uth prel 1991 The purp ne of tu luylımentul Rt,lut ( ti tpter as that no matter - injority you liat there are vectuer ·[ 8 ] forbudden sectors on wluch you will never tresspass The purpose of I undamental Rights is that certain legal principles should be established beyond the reach of Parliament and the Execullie to bu applied by the courts of iny you cannot enforce Directise Prin ciples Our Constitution says expressly that they are non jus ticpable there lics the main difference 20 In opposition to these views at the time of consideration of the Constitution Amend ment l'ill (IVth Amendment) the late Prime Minister Pt Achru asserted in the Lok Sabha on 14th March 1955 that if they (Judges) are user than se arc in interpreting thing but I say if it is coricct then there is an inherent contradiction in the Constitution between the fundamental Rights and the Directie Principles of State Policy Therefore again it is upto the Parliament to remove that contradiction and make fundamental Rights subserve the Directre Principles of State Policy if I may say so with all respect to the judiciarv they donot decide about high political or social or economic or other such questions It is for the Parliamant to decide The ultimate authority to lay down what political or soc ial or economic law we should have is Parliament and Parliaments alone Thus there two assertions about thc relative alue of Fundamental Ri, hits and Directive Principles One view that l'undamental Rights are superior the Directie Principles 23 and the othe: that fundamnenial Rights should remain subservient to Directre Principles and if they are not held so by the courts they should be made as such through appropriate amendments of the Constitution for a new socioeconomic organization The above quoted judge ment of the Supreme Court and the arguments of Dr NC Chatter jee and other authorities and writers support the contention that the provisions of Fundamental Right Chapter cannot be abridged by any other executive or legislative act and they are the grounds where there will be no tresspass either from the Parliament or executive wlule on the other hand according to Pt Nehru and his miny colleagues2 $ Parliament must tresspass these grounds in the interest of promised economic and social policy as envisaged in the Directive Principles and Parliament is the ultimate authority not judiciary to prescribe the economic and social order of the Country This confict of the question of the relative priority of Fundamental are asserts to ·[ 9 ] Rights and Direcine Principles thus also raises the questian of the relatne constitutional competency of the Parliament and the judi- The abos e mentioned views of Pt chru indicates that Parliament is Supreme and expresses that in essence our Constitution is more like the Britisii Constitution liccause in both there is Parlia mentary supremacy although under Indian Constitution the Par linment has got some limitations Thus we have in our Constitution mixed principles of a stitten and an unwritten Constitution This mixing of the principles of different types of constitutions is one of the basic causes such has created confusion and contradictions in our Constitution It is difficult to reconcile and harmonise tliesc contradictory principles and as a consequence of this mixing two groups of opinions have come to exist in India According to one the State should function cxactly within the boundaries prescribed by the Constitution and reviewed by the Courts Thcsc boundaries are to be determined by the decisions of the courts and the inter pretation of the judges According to the other view, the parlia ment representing the wishes of the people who are the source of sovereignty should ultimately be in a position to assert itself gene rally and for progressive legislation specially The supporters of the Banctity of Constitution of Fundamental Rights have adapted a sort of conservatre attitude specially for the protection of the property rights and are against the so callcd trampling, and playing fraud with the constitution by a series of various amendments to facilitate the taking over the private rights in property and other enterprises While others maintain that the provisions of the Fundamental Rights should sot come in the way of social reconstructions and should not act as back pulling chain in the Socio Economic progress of the peoples 28 Thus naturally a situation has been created, in wluch few people interpret and view the constitution and specially Direc tre Principles and Fundamental Rights from one angle and others from a different one By incorporating the protection of property rights and freedom of trade and avocation under Fundamental Rights we have given rights to one section of the community and by accepting the principle of social and economc justice in the Preamble of the Constitution and consequentially accepting the way of social and economic reorganization and progress as shown by the Directive Principles of State Policy we have created rights on samem ·be kept [ 10 ] issues and points for the other section comprising the majority of the people The poorer a d 'HAVFS NOT' people interpret Directive Principles as their Fundamental Rights Thus a conflict has arisen between the Fundamental Rights of the 'HAVES and 'HAVLS NOT and this is the peculiar dialemma of the Indian Constitution, and that is why it has been interpreted differently by the Courts of Law and Political Leaders in the Parliament as shown above when We referred to the decision of the Supreme Court and abstracts from the speeches of Pt Nehru An effort has been made in this thesis to establish a probable theory for the right evaluation and understanding of the Directive Principles in relation to opposing and contradicting Fundamental Rights By adapting PROCEDURE ESTABLISHED BY LAWV in place of DUE PROCESS OF LAW, we have established legislative supremacy This important point should uppermost in our minds when he attempt to understand our Constitution regarding respectise position of Parliament and Judi ciary Chief Justice Kania Justice Mukherjee and Justice Patanjalı Shastri etc maintained in the case of Gopalan v/s State of Madras that by adapting the phrase 'PROCEDURE ESTABLISHED BY LAW, the constitution gave legislature the final word to determine the law 26 To emphasise this point Shri Mukhe jee held "The View that judiciary should be endowed with power to question the Law not merely on the ground that it was in excess of the authority of the legislature but also on the ground that the Law violates some Fundamental Principles as regards the protection of the life and liberty of an individual did not find favour with the authors of the Constitution and they considered that it would be preferable to place the ultimate authority for the confernment of this fundamental right in Parliament rather than to give the judiciary the auth ority to sit in judgernent over the balls of legislature 27 Dr Ambedkar gave the following explanation for the ommi ssion of the words. due process of Law and the substitution of the words according to procedure established by law In our Constitution The question of due process in my judg ment the question of relationship between the legislature and the judiciary In a Federal Constitution it is always open to the judiciary to decide whether any particular las passed by the legis raises ·[11] lature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legulature If the law made by a particular legislature exceeds the authority or the power given to it by the Constitution, such law would be ultra vires and invalid That is the normal thing that happens in all federal constitutions Every law in a Federal Constitution whether made by the Parliament at the Centre or made by the legislature of a State is always subject to examination by the judiciary from the point of view of the authority of the legislature making the law The 'due process clause in my judgment, would give the judiciary the power to question the law made by the legislature on another ground That ground would be whether that law as in keeping with certain fundamental principles relating to the rights of the individual In other words, the judiciary would be endowed with the authority to question the law not inerely on the ground whether it was in excess of the authority of the legislature, but also on the ground whether the law was good law apart from the question of the powers of legislature making the law The law may be perfectly good or valid so far as the authority of the legislature is concerned But, it may not be a good law, that is to say, it violates certain fundamental principes and the judi ciary would have that additional power of declaring the law invalid The question which arises in considering this matter as this We have no doubt given the judiciary the power to examine the laws made by different legislative bodies on the ground whether that law is in accordance with the powers given to it tron now raised by the introduction of the phrase "due process' is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles There are two views on this point One view is thus that the legislature may be trusted not to make any law which would abrogate the fundamental nights of mat, 80 to say, the fundamental rights wluch apply to every individual and consequently there is no danger arising from the introduction of the phrase 'due process Another view is thus that it is not possible to trust the legislature the legulature is likely to err, is likely to be led away by passion by party prejudice, by party considerations and the legalitare may The ques ·[ 12 ] make a law which may abrogate what may be regarded as the fundamental principles which safe, uard the individual rights of a citizen We are therefore placed in two difficult positions One is to give the judiciary the authority to sit in judgment over the will of the legislature and to question the law made by the legis lature on the sound that it is not good law in consonance with fundamental principles Is that a desirable principle ? The second position is that the legislature ought to be trusted not to make bad laws It is very difficult to come to any definite conclusion There are dangers on both sides For myself I cannot altogether omit the possibility of Legislature packed by party men mal ing laws which may abrogate or violate that we regard as certain funda mental principles affecting the life and liberty of an individual At the same time, I do not see how fi e or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legis lature and by dint of their own individual conscience or their bias or their prejudices can be trusted to determine which law is good and which law is bad It is rather a case where a man has to sail between Charybdis and Scylla and I therefore would not say any thing I would leave it to the House to decide in any way it likes 8 We know that ultimately the Constrtuent Assembly adop ted the phrase PROCEDURE ESTABLISHED BY LAW and thus decided to drop the American principles of judiciary the due process of lau Summing up the abo e discuss107 it is to be pro ed that our Con stitution is based on the ideals of Socialistic Humanism Secondly much that was aimed and pronused for socio economic cman cipation of the masses has been included in the Directive Principles ve Directive Principles ire the agencies for achieving the ideals of Socialism Humanism and egalitarian society Through Directive Principles a new social and economic order has to be established to bring about conditions and circumstances of Econo mic and Social justice and real equality of opportunities Thirdly, Directive Principles are of dynamic națure many of its articles are the fundamental rights of future Fourthly if some Articles of Fundamental Rights Chapter come in conflict with the provisions of the Directie Principles through which the aims and expectations of a new social and economic order are to be realized they should - ·1 1 1 [ 13 ] Ise amended, and finally the various Articles and the Constitution 18 4 whole should be viewed and understood in continuation of the historical evolution of political ideals, that is the Constitution should be studied in organic relation to its historical background and historical consequences The Constitution and Las lias a social function to perform, but a flexible instrument of social revolution and a mightly weapon to nchieve socio-economic justice through effectne implementation of the Directive Principle of the State Policy Wheneer it 15 fimund that some fundamental Ri, hits create difficulties for the implementation of the Directive Principles the former have to be amended suitably Commenting on this issue Is Chief Justice Shua Gajendra gadkar emphatically puts forward his vicws in the following words It will thus be clear that the concept of a welfare state changes the entire complexion of the role of democracy towards society Democracy can no longer be a passive witness to the socio-economic struggle and tensions It has to give up its policy of non alignment in such disputes because of the state is non aligned the result of the struggle is a foregone conclusion The figlıt between the rich and the poor the educated and the uneducated the emploved and the unemployed the healthy and ile sırk is an entirely unequal fight all adi antages being on one side and al} disadvantages being on the other If the statt were to leave the decision of this fight to the unfettered rule of the free mar ket m the belief that the survival of the fittest is the natural law then of course, the democrat way of life will be powerless to meet the challenge thrown by communism As soon as the democratic state embarks upon this adventure of achieving the ideals of a welfare state it inevitably turns to law as its greatest ak zn the Crusade "The function of the democratic state and its role assume wider proportions and cover a much larger horizon and in assisting the state to achieve these ever expanding objectives the function and The role of law correspondingly enlarge and wider horizon It is in this sense that the role of law in a democratic state is integrally connected with the role of the cover 3 ·( 14 ) democratic state itself vis a vis its obligations to the citizens of the state We reach a stage in the progress of the democratic way of life where law ceases to be passire just as democracy ceases to be passive and the purpose of law like that of democracy becomes dynamic and that naturally raises the eternal question about the adjustment of the claims of individual liberty and freedom on the one hand, and the claims of social good on the other It is this dual which 7 dynamıc democracy bias to face and it is in the harmonious and rational settlement of this dual that law has to assist democracy That takes us to the qu s 101 which we have posed for our discussion--the relation of law with liberty and social justice 29 The dynamic element of our Constitution has been mainly incorporated in the Chapter of Directive Principles If we want to established expected social circumstances as enshrined in the Directive Principles the citadel of economic power has to be broken Around some Fundametal Rights of the Indian Consti tution a fortress and a citadel of Vested economic power has been sought to be established The Directive Principles of our Constitu tion are thus a dynamic agency for the establishment of welfare state to bring about desired socio-economical reorganization based on fair and equitable distribution of wealth and opportunity They are the objectives of National policy ·2 The origin and background of the problem of the conflict of fundamental rights and directive principles It has been point out in the previous chapter that there are contradictory assertions about relative values of Fundamental Rig hts and Directive Principles by eminent authorities in this Chapter the origin and background of this problem us proposed to be discussed Article 15 (1) of the Indian Constitution reads "The State shall not discriminate against any citizen on grounds only of reliçion race, caste sex place of birth or any of them " Clause (4) of this Article was inserced after the 1st amendment of the Constitution in 1951 which now reads as "nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled Castes, and Scheduled Tribes This amendment was made to remove contradictory elements in these two chapters and specially as a result of judgement of Supreme Court in famous cases of Dorarrajan Vs State of Madras and CR Srinivasan Vis State of Madras 30 (AIR 1951 case No 270, 271) The facts of cases are as under "It appears from the judgement of Dass J (Justice) that the State of Madras maintained four medical colleges and that only 330 seats were available (for admission) for students in those four colleges Out of these 330 seats 29 were reserved and the rest were apportioned between four distinct groups of districts in the State, nilarly the State of Madras maintained four Engineering Colleges, and the total number of seats available (for admission) for students in those Colleges were only 395 Out of these, 33 seats were reserved and the rest were "apportioned between the same four distinct groups of districts For many years before the commencement of the constitution of India the seats in both the Medical Colleges and the Engineering Colleges 50 apprortioned between the four distinct group of districts used to be filled up according to certain proportions set forth in what used to be called the communal For every 14 seats to be filled by the selection committee ·[ 16 ] . 1 ס א טאטא - 1 candidate used to be selected strictly on the following basis Non Brahımın (Hindus) Backward Hindus 2. ('Brahamins Harijans Anglo Indiin ind Indian Christians Muslim Subject to the aforesaid regional and what have been claimed to be protective provisions selection from among the applications from a particular community from errh of the group of distrimta used to be made on certain principles based on 1cademic qualitcations and marks obtained by the candidates Nos on 7th June 1990, Shrimatı Champaham Dorairajın made an application to the High Court of Vladras under Article 226 of the Constitution for the protection of her fundamental rights under Article 15 (1) and Article 29 (2) there of By its judgement on 27th July 19,0 the Hish Court of Wa Iras allo v 1 this application The Sta e of madras thereupon appealed to the Supreme Court a, unst this judgement Shri CR Niyasan also filed 1 petition praying for a writ of mandamus or any other writ restrainin, the State of Madras and all officers thereof from enforcing observing muntaining or following the communal GO in and by which admission in the Engineering Colleges was sought to be reyulated in such manner as to infringe and involve the viola tion of lus Fundamental Right unter Artrule 15 (1) and Article 29 (2) of the Constitution By the same judgement the High Court of Madras allowed this application also and the State of Madras filed an appeal to the Supreme Court against it 31 Supreme Court turned down th» app al of \adras State and gave decision that GO (Communal) infringed the Fundamental Rights of the original petitioners Both before the Madras High Court and the Supreme Court one of the points urged on behalf of the State was that the provisions of these Articles have to be za zengin her Asteries of the Constitution, that Article 46 (of Directive Punciples) enjoins the State to promote with special care the educational and economic interests of the weaker sections of the community and in particular of the Scheduled Castes and Scheduled Tribes and with protecting thein from ·( 17 ) so sal injustice and all 10% no exiloitation and that this Article finds a place in part IVth of the Con titution (of Directive Prıncı oles) whici lays down certain Directive Prin iples of State policy and though these provisions are not enforcea ble by any are court, the principles therein lad do yn ne ertheless fundamental for the Government of the country and further Article 37 makes it obligatory on th part of the State to apply these principles in making Laws These argu ments and contentions were however reject by both the Courts The High Court of Madras and Supreme Court of India On the question of the relative value of chapter III and IV of Fundamental Rights and Directive Principles respectively Justice Das J remarked, • The learned Advocate General appearing for the state of Madras contends that provisions of this Article 32 have to be read along with other Articles in our Constitution He urges that Article 46 charges the State with promoting with special care the Educat tonal and economic interests of the weaker section of the people The argument is that having regard to the provisions of Article 46 the State is enqıtled to maintain the communal GO fixing proportionate seats for different communities and if because of that order which is thus contended to be yalıd in law and not in violation of the Constitution the petitioners are unable to get admission in the educational institutions there is no infringement of their constitutional rights Indeed the learned Advocate Gen eral of madras even contend that the provisions of Article 46 override the provisions of Article 29 (2) We reject the above noted contentions completely The Directie Principles of the State policy which by Article 37 are expressly made vnenforcuable by a court cannot override the provisions in Part III of the consti tution, which notwithstanding other pro ?sions are expressiy made enforceable by appropriate writs, orders or direction under Article 32 The chapter of Fundamental Rights is sacrosanct and 15 not liable to be abridged by any Legisla ive or Executive Acto Order except to the extent provided in the appropriate Article in Part III The Directive Principles of State po'icy have to conſom 10 and run subsidiary to the Chapter of Fundamental Rights In our opinion that is the correct way in which the provisions found in Part III and IV of the Constitution have to be understood 3.

·( 18 } In conclussion on behalf of the Supreme Court le further muntained "Take the case of Shri CR Shri Nivasan It is not disputed that he secured a much larger number of marks than the marks secured by many of the Non Brahamın candidates and yet the non Brahamin candidates who secured less marks will be admitted but the petitioner Shri Nivasan will not be admitted what is the reason for this denial of admission except that he is Brahamin and not a noi Brahımın? he can not get any of the seats reserved for no fault of his except that he is a Brahamın Such a denial of admission can not but be regarded as made on grounds only or lus caste It is argued that the petitioners are not denied admission only because they are Brahamins but for a variety of reasons eg (a) they are Brahamins (b) that Brahamins have an allotment of only two seats out of 14 (c) and that these two seats have already buen filled up by more meritorious Brahmin candidates This may be true so far as these two seats are concerned but this line of argument can have no force when we come to consider tlie seats reserved for candidates of other communities The classification in the communal GO procecds on the basis of religion race and caste In our view the classification made in communal GO is opposed to and constitutes and clear violation of the fundamental Rights For the reasons stated above we are of the opinion that communal GO being inconsistent with the pro: isions of Article 29 (2) in Part III of the Constitution is void under Article 13 34 On careful perusal of this judgement many important points come before us for consideration This judgement seeks to establish a per petual principle of interpretation not only of Fundamental Rights in relation to Directive Principles but also to other provisions of the Constitution as well 36 This judgement says in most explicit and categorical language The Chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive Act or Order except to the extent provided in the app ropriate Articles This means a categorical emphasis that there is no Legislative or Executive Act or Order which can abridge the operation of this Chapter save as provided in the appropriate Article This assertion does not appear to be fully correct The suspension of the Fundamental Rights can be brought about by

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·( 20 ) the Con titution while inte preting I'undamental Rights This is a sort of attitude of untouchability towards the Directive Principles, in favour of high caste Articles of Fundamental Rights supported 7s such by the Courts If the historical background of our Cons tittien and debates in the Constient As embly were kept in mind such situation would not have come and the Articles of Cha pler III should have been considered along with other Articles of the Constitution including those of Chapter IV For a balanced and harmonious View A Consuution likewise (like a statute) must be read as a whole The whole Constitution is to be exami ned with a view to determining the inten'ion of eact part, and the Construction must be uniform Particularly the Constitu ion of India is a very detailed one and the whole of it has to be read with the same sanctity without giving undue weight to any part eg Part III except to the extent one is legitimately and clearly lımı ted by the other 37 Further Willoughby has been quoted by D Basu “The Constitution is a logical whole each provision of which 19 an integral part thereof and it is therefore logically proper and indeed imperative to construe one part in the light of the provision of the other part 38 It is not the question of one or two Articles of rundamental Right Chapter in relation to those of Directive principles but about the relative values of these parts of our Constitution in their totality and of the overdue emphasis that Chapter of the Fundamental Rights is sacrosanct and its Articles are not to be viewed along with other Articles of the Constitution 30 In fact of their relative values and importance hinges on much broader issues such as on the realization and esta blishment of a new social order free from economic exploitation and how certain Articles of Fundamental Rights Chapter are in terpreted so as to block the entire historical process? The problem of ihe relative value of these two chapters must be viewed in rela lion of Agrarian reforms nationalization of key industries and services etc, and the realizatioa of the society as expressed in th Ar icles of Directive Principles mainly such as welfare of the people by the establishment of a social order in which justice ccial economic political shall inform all the institutions of the national life and that all citizens have adequate means of liveli the question ·1 211 101 11 artır (comic system des insult in the concentration ofw alth all mean al production are not und to the en nmn in edim Irunet tar conrering and control of the material sevmeyra ale di infried for the nation $rund wirre there ! no mpl 1030 frcdbron mic a dosities and perrure etc. The queen r The te atre value of thirth no clupteri became perticalor ) -573 ror only in fr casr much nefuse descurred in tha cha Fr X Champakan * teist on Init als 43 nthet imprint Voit lalu State of UP (1TR Allahabıd 2,7) hal et* 515h 1 Slair of Bihar b free throminencement of the Cristaltion the cornerumen of Uttar Pradesh concessed slon idea of unning the Bad Tranport Service mia State monopoly and with a sim 10 0 18 il pratie Inus owners nlo were already in field the lov treneuil tarii cincel the perinats already itsesed in prasate mutators in tercerar "' power under Sec 42 (3) of tir Vlator Iclucle Ace On thir commencement of the Constitutin scimr of the private aparatos whinee permita fuad been cancelled filed petiigons under Aructe 226 of the Commututonn prasing for declaring the use of the sad Act as unconstitutional as it infringed their rislis guarantere bry Article 19(1) of the Constitution The majority dretsin of the Allahabad High Court declared that the action of the State was unc natututional The Starr felt that no scheme of nationalizati in of amy trade businesi industry or Segnace would be fumeble because all these steps would be declared unconstitutionally then courts that the actions of State infringe the Fundamental Rights of the citizens Many Acts dealing with Zamındari abolition were also declared unconstitutional Excause it was interpreted by Courts ( Bihar haneshwar Singh vs State of Bihar)" that they infringed certain fundamental ruhts of the ci izens Thiut we note the significance of the pruhleru of the relatie value of these Chapters is not related to one pr 14 » Articles fiere and there not on the point whcher Arucke 46 os errides the provision of Article 29 (2) or vice ver a, but on broder issurs of national Social and Economic Poll in and the opprsifion of entrenched sested interests taking shelter b hund some Fundimental Rights The problem under discusion is to be ysrwed and judged in this context of broder issues at stake ·[ 22 ] rac It is to be noted that if the deciding Court doc not keep in inind the historical background and debates in the Constituent Assembly it may arrive at conclusion which may not be warranted by the actual facts This point is being illustrated in the following lines In support of his arguments in the judgement of Champa ham vs the State of Madras, ** Justice Das further said 'It will be morced that Article 16 which guarantees the Fundamental Raght of Equality of Opportunity in matter of public employ ment and provides that no citizen shall on grounds only of religion caste sex descent, place of birth residence or any of them will be ineligible for oi discriminated against in respect of any employment or office under the State also includes a specific clause in the following terms Nothing in this Article shell prev ent the State from making any provision for the reservation of citizens which in the opinion of the State is not adequately represented in the Services under the State 43 He argues that accor ding to this special pronz won the State was meant to make reserva tion for employment in the interest of backward classes but no such reservation was intended by the makers of the Constitution for admission in to educational institutions otherwise similar provision would have also existed in the Arnule 29 If the arguments founded on Article 46 were sound then clzuse 4 of Article 16 would have been wholly unnecessary and redundant Seeing however the clause (4) was inserted in Article 16 the ominission of such an expres provision from Article 29 can not but be regar ded as 31,nificant It may well be that the intention of the Constitution was not to introduce it all c»mmunal considerations in matters of admi sion into any educational institution muinta ced by the State or receiving ud out of State funds ection of backward classes of citizens may require the appointment of members of backward classes in State services and the reason why power has b en gisen to the State to provide for the resena tion of such appointments for backward classes may under those circumstances be understood That consideration however was 1100 obviously considered necessary in the case of admission into on educational institution and that may well be the reasons for the omission from Article 29 of a clause similar to clause (4) of Article 16 The prot 44 ·plea [ 23 ] This obser ation and conclusion is based on ignora ice of facts and has no relation to what actually transpired in the Cons tituent Assembly When this Article was under consideration in the Constituent A sembly Prof кт Shah had moved an amendment on 29th November, 1949 that at the end of clause (2) of Article 9 (corresponding to the Article 15 of the present constitution) the following be added 'Nothing in this Article shall prevent the State from making any special provision for women and chuldren o for schedu ed castes or ba-kward tribes for their advantage, sfeguard or betterment 18 as Justice Dass wished it to br there af State wanted to mike sp cul resor vation for the admission in educational institutions But Dr Ambedkar had opposed the inclusion of this special pro/ision for backward classes in the educational institutions on the following The amendement may have just the opposite effect The object which all of us have in mind is that the scheduled castes and scheduled Tribes should not be segregated from the general public For instance none of us I, think would like that a separate school be established for the scheduled castes, when there is a general school in the village open to the children of the entire community If these words are added it will probably give a handle for a State to say Well we are making special provisions for the scheduled castes To my mind they can safely say by taking shelter under the Article if it is amended in the manner the Professor wants it I therefore think that it is not desirable amendment 46 It is thus clear that if the Honourable Judge had kept the relavent debates of the Constituent Assembly in mind regarding this Article he would not have arrived at the conclusion to which he arrived at and to which he attached so much significance and would have clearly understood, why special provision for reservation of backward classes for admission to educational institution was not incorporated originally in the Article and would not have suggested that the authors of the Constitution have deliberately omitted such provisions because they did not want to make special provisions for backward clas ses for admission in educational institution on the basis of communal and other considerations as they have done so regar ding the appointment and employment opportunities However ·[ 24 ] duº to that decision of the court the relevant clause for the prote ction of backward classes for admission in educational institutions has been inserted in the Constitutions as a result of first amend ment of the Constitution commu lies To make the matter more clear let us see what happend in the parliament when the Bill for the ist amendment of the Constitution was under co sideration Pandit Nehru said in Lok Sabha come now in d al with those three special Articles on which a great deal of argument has turned The House knows very well that this ma ter came up in this particular form because of certain happenings in Madras The Government of Madras State had is ued a GO I dont know its details according to which ceriain reservations were made for certain classes and The High Court of Madras said that this GO nas nt in order that it was against both the spirit and the letter of the Constitu ion Nevertheless, while it is quite valıd and we bow to the decision of the High Court of Madras do this matter the fact remains that we are faced with a situation for which th- pre ent generation not to blame Therefore some crt of special provision must be made We have to do some thing fr the communities which are backward educationally economi cally and in other respects if we wish to encourage them in these matters We come up against the difficulty that on the one hand in our Directive Principles of Policy we talk of removing inequa lities of raising the people in every way socially, educationally and economically of reducing the distances which separate the grups or classes of individuals from one another on the other we find ourselves handicapped in this task by certain provisions in the Constitution We have to give them opportunities economic educational and other Non, in wanting to do so we find that we are up against certain provisions in the Constitution regarding equality and non di crimination We arrive at a pecu liar turle namely that we cannot have equality because in Trying o attain equality we come up against certain principles of equality laid down in the Consti uuion Tht is a very peculiar position We cannot have equalıtı because we cannot have non discrimonion for if you are thinking of raising those who are ·[ 25 in down you are somehow affecting the status quo, undoubtedly, you are thus said to be distriminating because you are affecting the statusquo If this argument is correct, then we cannot make any major change in the statusquo whether in the economic or in any other sphere, Clearly, whatever law you may make you have to make some change somewhere We cannot ignore the existing facts Therefore one has to keep a balance between the facts as we find them and the objectives and ideals that we aim If we stick to the existing facts alone then we are static and unchanging and shall be giving up our objectives and the Direc tre Principles of Policy laid down in the Constitution Hence we must find a middle way between our objectives and the existing facts We must keep our ideal in view and then take steps which will gradually carry us in that direction 47 The important point for discussion and understanding is that due to historical consequences society India as a fact came to be divided into various strata Those who tase remained backward have to be elevated and naturally the Stafe has to make special provisions according to the directions ut the Directive Principles Now these special provision, come in the way of Right of Equality guaranteed under Fundamental Ivyhts Chapter Thus a situation arises where the rights of back ward and poores cogimunities as envisaged in the Directive Prin ciples come in conflict with the Fundamental Rights of other citizens This again becomes a question of contradictions between Directie Principles and some Articles of fundamental Rights and which of the ho should get priority Nobody will deny that triose who are backward should be specially encouraged If this 13 accepted it is imperative that the force of some Fundamental Right, wuch oppose this programme has to be diluted Before independence our leaders have been emphasizing that backward Secrons of the community will be encoui aged and uplifted How can we nos abstain from that duty and those promises ? Should me allow its materialization to be hampered by certain Funda mental Rigl ts? Iſ it is done it will tantamount to be going back on the previous assurances and promises and Parliament can not ramain a silent spectator to this tragedy Therefore it is suggested that for evaluation of the true salue of Directie Principles in - ·[ 26 ] relation to Tundamental Rights consideration should be gren 10 hı torical facts and their consequences and the Fundamental Rights should be interpreted and understood in this context and not 111 isolation of other Articles of the Constitution and facts of the society That is why it has been said in the introductory chapter that no theory of State and Contitutions is ever intelligib e sive in the context of its historical phase and the society for which they work If there were not so much differences and mequalıts bet ween different sections of the Indian community and social and economical conditions were on equal plane then of course the arguments and decisions held by the courts would have been appropriate but in the context of the existing conditions the con cept of Equility and property in relation to Fundamental Ru hts has to be modihed and amended according to the provi ions of Directre Principles There ore one should keep a balance between facts as we find and the objectives and ideal that we aim at If no stcik to the existing facts nlone then we become static and unchan ging and shall be gring up our objectnes and the Directive Prin riples laid down in the Consutution Thus it is submitted that the Articles of I undamental Rights should not be interpreted in isola tion and courts should not take such a rigid attitude as was taken in the case of Champakam Dorairajan Vs State or Madras that Ara les of Fundamental Rights should not even be read alongwith the Articles of Directie Principles and Chapters of Fundamental Rights is sacrosanct and the Directie Principles have to run as subsıdırry to fundamental Ri, lits This attitude of untouchability of some rourts is not helpful Now we turn our attention to the question of relatie value of fundamental rights and Directive Principle in relation of the abolition of Zamındari and other agrarın reforms and how obst ucles were created by the defence of fundamental rights of property in the effective implementation of these programmes Prof T Shah a member of the Constituent Assembly had anticipated that courts and tribunals may not give due importance to the provisions of Directive Principles and so to leave nol odi in doubt he had suggested an amendment in the Constituent Assembl on 15th Nov, 1948 that in cluse (1) of Article 1 of the dratt Constitution following words "Secular Fede ral Sacirlist Union be inserted ind the amended article may read ·[ 27 ] 28 "Indin shall be a secular federal, socialist union of States '48 To explain the merit of this amendment and to emphasise the impor tince of socialistic aspirations to be included in the Constitution he said in the Constituent Assembly "I am fully ay are that it Hould not be quite a correct description of the state today in India to rall it a Socialist Union I am afraid it is anything but Socialist so far But I do not see any reason why we should not insert here an aspiration which I trust many in this House share with me, that if not today soon hereafter the character and composition of the St tc will change, change so radıcally, so satisfactorily and effectively that the countri would become a truly Socialist Union of States He further said "By the term 'socialist I may assure my friends here that whit is implied or conveyed by this amend ment is a state in which equal justice and equal opportunity for everybody is issured, in which every one is expected to contribute by his labour, by hits intelligence, and bv his work all that he can to th maximum capacity and every one would be assured of get ting all that the needs and all that he wants for maintaining a decent civilized standard of existence I am sure this can Ise achieved without any violation of peaceful and orderly progress Those who recognise the essential justice in this term those who think with me that socialism is not only the commg order of the day, but is the only order in which justice between man and man can be assured is the only order in which privileges of class exclusiveness property for exploiting elements can be dus pensed with must support me in this amendment If this ideal is accepted I do not see that there is anything objectionable in inserting this epithet or designation or description in this article and calling our Union a Socialist Union nf States Dr Ambedkar who was the Churman of the Diafting Committee acknowledged the fact that much of the socialism has been included in the Direc Ire Principles and therefore there is no need to acrept the amend ment as survested by Prof T Shah, and thought that amend ment was superlucus and said "Vy Honourable friend Prof Shah does not seem to have taken into account the fact that apart from the Fundamental Rights which we have embodied in the Consti tution ve liave also introduced other sections which deal with directive principles of state policy If my honourable friend were ·28 their policy It says to read the Articles contained in Part IV he will find that both the I egislature as well as the Executi e have been placed by this Constitution under certain definite obligations as to the form of Now to read only Article 31 which d-als with this matter The St te shall in particular direct its policy towards securing - (1) that the citirens men and women equally have the right to an adequate means of Inve ihood (11) that the ownership and control of the material resour ces of the community are so distributed as best to subserve the common good (1) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment (iv) that there is equal pay for cqual work for both men and women There are some otlier items more or less in the same strain What I would like to ask Professor Shah is this if these directive principles to which I hive drawn attention are not socialısınıc in their direction and in their content I fail to understand what note socialison can be? Therefore my submission is that these socialist principles are already embodied in our Constitution and it 13 unnecessary to accept this amendment 19 Caving a rey under to Dr Ambedkar for not accepting his amendment for the inclusion of words that Bharat shall be a socialı t state Prof T Shahinuntained that although socia listic principles have been accepted in the Directive Principles but they will not be setting due importance and hence in turn tle socialistic a pirations will also not recere adequate regud and respect from courts and therefore he said in Constituent Assembly The Directives are in my opinion the vaguest loosest thickest smoke screen that could be drawn against the eyes of the people und may be used to made them believe what the draftsmen never intended or meant perhaps When those matters are brought before the tribunals for ac judication or arbitration they might not be interpreted in the sense the people might believe tho e ·[ 29 ] clauses to convey '50 His anticipated apprehension has been proved c rrect by the attitude ofthe Courts regarding the relati e If the values of Directive Principles and Fundamental Rights 51 courts had taken a balanced view keeping in mind the importance of Directre Principles in relation to the facts of our history and existing social and economic conditions there would have been no need for the first amendment of the Constitution In opposition to such a rigid attitude of the courts in relation to Directive Principles and Fundamental Rights Pt Nehru had to say in Lok Sabha (14th March 1955) "I would like to draw the attention of the House to something that is not adequutely stressed either in Parliament or in the country We stress greatly and argue in courts of law about the Fundamental Rights rightly so but there is such a thing also as directive principles of the constitution Eses at the cost of repeating thes. I wish to read the out (Prime Minister Late Pt Nehru referred at this occasion to Articles 37 38 39 of the constitution) These are as the constitution says the fundamental in the governance of the country Now I should like the House to consider how can you give effect to these prin ciples of the arguments which is often being used even if I may say so with all respect by the Supreme Courts is adhered to You You may say you must accept the Supreme Court s inter pretation of the constitutions They are wiser than we are in interpreting things But I say if that is correct there is an inherent contradiction in the constitution between the Funda mental Rights and Directive Principles of the State Policy 62 To set the matter right which arose due to the supreme courts decisions upholding the sanctity of the Fundamental Rights and thereby blocking the path of the desired and expected social and economical reorganization he further said in the same speech "Therefore again it u upto this parliament to remove that con tradiction and to make the Fundamental Rights subserve the Directive Principles of State Policy' $3 The problem of the relative value of the Fundamental Rights and directive Principles recently became a question of great controversy and practical importance as a result of Supreme Court s decision on the Constitutional Valaduty of the Scientcenth Amendment Act (Golaknath Case) and as a result of this 24th can ·[ 30 ] 4 were All steps of social justice & 25th amendment Bill have been introduced in the Parlia ment However the view of the ex Chief Justice Wanchoo and lus supporting colleagues of the supreme court more ſavvurab) inclined to the view that for the establishment of 7 new social order for the implementation of Directive Principles lundamental Rights may be uended by the Parliament The views of Ex Chief Justice Gajendragadkar were also in favour of amending the Constitution in order to eliminate the opposition of the some I undamental Rights of need bc He expressed his views on this issue in the following words I he concept of social justice thus cakes within its sheep the objective of removing all inequalities and affording equil opportunities to all citizens in social affairs as well as economic activities taken by the Indian legislatures with a vice to solving this problem of socio-economic inequality are based on the doctrine Let us neier forget that to the large class of citizens who suffer from stark poverty and its inevitable accom paniments notions of individual freedom and liberty are apt to ound as empty words which obtuin popular currency only in the drawing rooms of the rich and well to-do classes of citizens for It is plun that hunger makes men impatient and ingry, and impatience and anger lend to blindness In their truggle to face the urgent and pitiless problem of poverty citizens may not be able to appreciate the theoretical sınıficance and grandeur of the concept of individual freedom and libeſty of ocial justicc is thus a resolution dry concept which gives meaning and significance to the democratic way of life and makes the ru e of law dynamic When Indian democracy secks to nicet tlie challenge of socio economic inequality by its legis Iative process and with the assistance of the rule of lasy it virtually seels to chiese economic justice without any violent conficis As soon as the ideal of a wellue state i accepted by democracy it leads to one important consequence and that is that the claims of social justice must be treated as paramount and primary and of the freedom of the individual and his indnidual rights need be regulated order to achucve social justice Expressing lus views further about the desirability of the amendment of the Consti The concept to in 5 ·[ 31 ] tution to achieve socio-economic justice he says "ly point in mentioning some of these amendmenus is to illustrate my thesis that in seeking to achieve socio Economic justice democracy and the rule of law cannot treat my proposzlion is absolut ind any provision as infallible and beyond the pale of modification experience shows that some cliai ve has to be made democracy and the rule of law do not hesitate to make the change b c use it is the very essence of sociological jurisprudence that like life lau itselt must benefit by experience '56 Justice Gjendragadh 1r thus is of opron that clums of social justice may require that the freedom of the individual and his individual rights may b regulated in order to achiele social justice This means that th Fundamental Rights should be regulated in the interest of so ial and economic justice Secondly he also holds the view that the Constitution including Fundamental Pighis may be suitahlı amended Thus in this chapter it has been discussed that how and why the problem of conflict between some Fundamental Rights and Directive Principles arose and how and why courts took a rigid attitude and sought to establish a perpetual principle for the interpretation regarding relative values of these two chapters? It has also been pointed out that what were the reaction of Pc Nehru as leader of the majority party and National leader to such decisions and his explanation why these amendment were done? It has also been proved in this chapter that our constitution 19 socialistic in aspirations and much of there socialistic aspirations have been included in the Directive Principles Dr Ambedkar gave an assurance on the floor of the House of the Constituent Assembly that Directive Principles contain socialistic aspirations and they can not be ignored They are the means to establish expected and promised conditions of the social and economic justice and general welfare of the masses It has also been pointed out in this chapter that if the amendment of Prof IT Shah to include words Socialistic State was accep ted no ambiguity would have rema'ned about the true spirit of of our Constitution and Directue Prisciples His apprehension that in future courts may not give Directive Principles due consi deration has also proved correct It has also been emphasized ·| 32 | in this chapter that for removing already existing inequalities as n consequence of our history tno much emphasis on legal equality is not warranted and if the preexisting inequalities are to be removed special concessions have to be given to the wraker secfions of the community that is the reles ant Articles of the Direc tre Principles will have to be taken in to consideration while interpreting the Constitution in general and fundamental Rights in particular Assessing the overall situation it is felt that for the interpretation of the Constitution a balanced viers should lye taken heeping many factors in mind and the superiority of the Funda mental Ri. hts should not be upheld rigidly in isolntion without due regard 10 other provisions of the constitution and due weigh tage should be gren to the actual facts of social life historical background and its consequences and if need be the proceedings of the constituent assembly may be referred to find out the views of the framers of the constitution ·سا Historical background of the aims and aspirations of the Indian Constitution It has been pointed out earlier that the evaluation of a Cons titution and its institutions should be done in relation to the historical background In this Chapter it us proposed to study the historical background of the aims and aspirations of the Indian Constitution Late Pt Jawahar Lal Nehru was one of the chief architects and guiding spirit of our Constitution His impact on Indian Constitution has been very great both in its formatives? as well as operative phase 58 He set the Constitution on right direction It was he who had the privilege of introducing the Objectives Resolution in the Constituent Assembly which formed the backbone of our Constitution 59 The Objectives Resolution is the yardstick by which the true evaluation of the letter and spirit of our Constitution is to be done It is therefore quite natu ral to enquire how this great leadır felt about the problems of Indian masses? What were his dreams and expectations of a free India? How he thought the problem of the masses could be solved' He had no doubt sume differences with Aſahatma Gandhi on some issues yet he was accepted his political heir Gandhiji knew that Jawaharlalji was the man of future As early as 1929 Gandhiji said about Pt Nehru 'In bravery he (Nehru) is not to be surpassed Who can excel him in the love of the country? He is pure as crystal he is truthful beyond suspicion He is a knight sans peur et sans reproche The nation is safe in his hands 60 Most appealing was Pc Nehru s enormous capacity for constructive work his sustained will power anu drive bis abi hty to conceive of concrete long range plans for the future deve lopment of this greatly underdeveloped ani greatly oppressed country Through his continuous efforts he created a place for socialistra ideology in the Congress Organization and India Hhad many strong opponents on the 23sue of socialism in the Cong Tess itself but the important point is how through his sustained efforts he won the opposition and made them agree to us views It is but natural that this great leader who was the guiding spirit of our Constitution must have incorporated in this ideals of ·[ 34 ] socialı m, that is it was impossible for him to associate himself with any Constitution which was not in harmony with his socialistic ideals He consistently felt compassion for the poor and the nppressed and fought against all sort of injustices-Political Economic or social in the country and even on the International plane His speeches in Lok Sabha at the time of the consideration of amendments of Article 31 (1st and Fourth Constitutional Amend ment Bills) his pasionate zeal for bringing about a new social order through Directive Principles of State Policy, his anger for those who sought to block the programme of socio economic reorganization under the cover of political guarantees of some Tundamental Rights can be better appreciated and understood in the context of this background Now we will trace the influence of socialism on Pt Nehru and in turn his influence on our Consti tution through a short historical study of the evolu'ion of the ideals and aspirations of our freedom struggle and how the problems facing the country were planned to be solved? The Consti tution is after alt an ipparatus an instrument to realize th- dreams and hopes and expectations of the people the defenders of the sanctity of property rights and such oth r related subje ts would leave appreciated the real value of Directive Prın iples if thes hnd kept in mind the picture of free India which was drawn during freedom struggle and the views of Pt Nehru which he he d even so much carlier His views on vital 1»sues such as property rights nationalization of the key indus ries and srvices and means of production of wealth economic justice and quality agrarian reforms including abolition of Zamındari and other means through which the emancipation of the oppressed masses could be brought about have followed a continuous pattern if the historical background of our freedom strugglc is ignored one cannot realize the importance of socialistic principles of our Cons titution If the socialistic elements of the Indian Constitution ire ignored one mises the real spirit of the Constitution Despite Jus early attraction to Marxism as a possible cure for India s conomic ills at no time did Pt Nehru favour communism as an ideal form of Government for India because he was basically opposed to any sort of regimentation It was after all the human aspect of socialism that aroused his enthusiasm He had no ·( 35 ) interest whatsoever un fixed doctrinaire approach or the inevitability of a bloody revolution in order to bring about the needed social and economic emancipation to be realized because he had fauh in the progressive democratic socialisin These views of Pt Nehru that peace and stability of ? community and the State depends on the equal distribution of property hase also been supported by other eminent poitical writers and thinkers e g Madison wrote "The most common and durable source of factions has been the various and unequal distribution of property Those who hold and those who are without property have ever formed distinct interest in society * 1 Prof Harold Laskt also supporting such views writes "It remains historically obvious that a community divided in to rich and poor s, when the latter are numerous, built upon the foundations of sand 64 If attempts to equalize economic power are frustrated under whatever rights there will be a constant friction between the rich and poor the 'haves and "havez not and these will prou duce a serious threat to the sery cxistence of the State In such circumstances Pt Nehru nghtly warned that 'no single Funda mental Right can surune any grave danger to the state- We have een the most perfect of constitutions upset not because they lacked perfection but because they lacked reality because they failed to deal wuh the real problems of the day"8% Commen ting on the need of new adju tments Pt Nehru further said "But I would like to put it to them and to others that their security elemately les m a stable economic system and not in the w courts or in anything else if there is no peace between them and the sast agrarian population, they have no security That system cannot continue it does not matter what your Fundamental Righits might say what your Constitution might say or what your courts might say if you refuse to see beyond these you will arrive at a revalutigasy W which will wort ersegs te have to consider the reality and read just ourselves put an end to the big zamındari systein, refort our land system make it prog ressive and modernize : 84 Thus he advised capstalysts and Zamındar class to adapt themselves to new circumstances of fundamental rights The above quoted view of Pt Nehru and the abstract and ·[ 36 ] speeches which are to follow in this chapter will give an inside view of those issues for which the Nation fought for independence and the ideals for the achievement of which the Indian Con titu tion was really framed and will create a better understanding of the relative importance of Directile Principles Whatever has been included in the Directi e Principles has been commented upon and elaborated by Pt Nehru in his speeches and writings before and after independence He emphatically maintained his desfavour of capitalistic society and concentration of economic power in private hands He was in favour of abolition of Zamın dari and other intermediaries on land and was in favour of creating new conditions for economic and social justice for better deal to labour and other working classes for creating humane conditions of work compulsory primary education at state ex pense special treatment for the benefit of women and children and backward sections of the community the promotion of health and the standards of nutrition to secure a decent standard of life o He emphasized that the struggle and condict between nations and between people of the same country was due to capitalistic and acquisitive tendencies If the pro gress of Directive Principles is sought to be blocked by some Fundamental Rights the entire edifice created in the form of hopes and expectation of a free India will collapse If the prova sions of Directive Principles are not realized at will not be an exaggeration to 871 that the entire process of history and background of our freedom struggle will be stultified and the whole process will becoine abortive and purposeless Pt Nehru s attachment to socialism started during lus student career at Cambridge and throughout his life this attachment continued and he always emphasized that political independence has meaningful significance of at leads to social and economic independence According to him Congress was a bourgeoise organı ation in its early phase and was cut off from the masses and worked for the benefit of the upper class ont such as Indian industrialists and budding capitalists and I n Iish educated Indians who wanted more and more concessions and Indianization of the Services The Congre s came in the contact of masses ·[ 37 ] after the advent of Gandhij and under his influence and gui darce thr congress organization and its workers in-tubing Pt Nehru gradually moved towards the masses "Just then a new interest developed in my life which was to play an impor tant part in later year Iwas thrown into contact with the peasantry I got entangled in the hisan movement That entanglement grew in later years and influenced my mental out lool greatly A new picture of India seemed to rise before me naked starving crushed and utterly miserable And their faith filled me with a new responsibility that frightened me I listened to their innumerable tails cf sorrow their crushing and ever growing burden of rent illegal practions ejectments from the lands and mudhuts surrounded on all sides by vul tures who preyed on them Jamındırs agents money lender Police they toiling all day to find what produced was their s and their reward was kicks and curses and a hungry stomach the progressive pauperization of peasantry had been going for a long time 'what amazed me was our total igno rance in the cities of this agrarian movement, I realized more than ever how cut off we were from our people and how we lived and worked and agitated in a little world apart from them This reali atton came to me during thest Partapgarh visits and ever since then my mental picture of India always con tams this naked hungry mass 86 This picture of abject and grin ding poverty of Kısans and laboureis working on the land created n great hatred in the mind of this lenda foi tlus system which produced this misery-the Lamindari system How much huit he must have felt when the process of Zamındarı almon and the steps to give land to the tiller were sought to be bloched through the interpretation of some Articles of Fundamental Rights by the courts > not He became convinced that to alleviate the sufferings of the hisans and labourers Zamindari system must be abolished Pt Nehru s further interest in socialism is traced through the follo ning abstracts we even tried as early as 1926 to dran up a mild socialist prolranime We declared that the Existing land susteni must go and that there should be no intermediznes between the States and the cultivators 1 u inted to spread the ideology of ·07 ( 38 ) socialım sprcially among congress workers and the intelligentia for these people who were the backbone of the national mo ement thought largely in terms of narrou est nationalism Coinmenuing upon the state of society of India then and what are the duties of the State (Ile ofcourse expected the Indian State to do all the in this after Independence) he said "Today Nece 7 society in which there are tremendous differences bet ween man and man greit riches on one side and great poi crty on the other Some people Inc in luxury without doing any work whilst others work from morning till night with no rest or lessure and yet have not got thic barest necessities of life This cannot be right It is the negation of Justice It is not the fault of our indi viduals who happen to be rich It is the fault of the system and :( is upto us to change this systein which perinits of exploitation of man by mın ind produces so much misery ricry min and woman must have the opportunity to de clop to the best of hus or fer ability Honour and merit mutt come from ability and liard work and not because of caste or birth or riches but treated as equal with equal rights to share this coun try and 111 it produces There is very little education very little sanitation or melıcal facilities In other coun tries it is the bounden and first duty of the state to give free educa tion to every person free medical facilities and to build good houses for the poor In other countries it is felt that no nation can be strong unless its men and women are healthy and well educa ted we must put an end to this the futurc of India Tics with peasantry In the same strain Pt Nehru emphasized in his Presidential Address Pujab Provincial Conlerence April 11 1928 We must also be opposed to capitalism as a system and to the domination of one country over another The only alternative that is offered 10 us is some form of socialism that is the State ownership of the means of production and distribution We cannot escape the choic and if we really care of 1 better order of society and for ending the exploitation of man by nian we cannot but cast our weight on the side of socialism we may demand freedom for our country on miny grounds Ultimately it is the economic problem that mattess whenever vital questions affecting # ·( 39 ) masses have arisen they have been shelied why confuse the 189ues now? It has been sud we can settle our problems later Like all class conscious groups they have considered themsels es the most vital element in the nation and in the name of freedom have really sought to advance their own interests what shall it profit the masses of this country--the peas1 try the landless labourers the worker if e ery one of the offices held by Englishman in India is held by Indians M:53 support cannot come for the vague idea of Swaraj Therefore it is essentail that we inust clearly lay doun an economic programe must have an ultimate ideal in view Our ideal thus can only be an indepen dent democratic statr and I would add a socialistic state and for this we must work 49 In a speech at all Bengal Student s Conference Calcutta Sept 22 1928 Pt Nehru urther elaborare his id als in the following words. You cannot have a purely political ideal for politics is after all only a small part of life Your ideal must be 1 comp lete whole and must compri e lıfe as it is toda economic social as well as political Can You (xpect any peace in the land when there is so much misery and so much contrast between wealth and adject poverty? We are sometimes told that we must see that justice is done between landlord and tenant and capitalists and worker and justice means the muntenance of the statusquo It is a kind of ju tice the League of Nations gives when it maintains the present statusquo with the imperialist powers dominating and exploitin half the earth wlian the statusquo itself is ra injustice there who desire to maintain it must be considered is upholders of that Injustice If your ideal is to be one of social equality then perforce you must noth for a socialistic state The word socialism frightens many people in this country, but that matters little for fear is their constant companion our elders sitting in their council chambers shake their grey heads and stroke their beards in alarm at the mere mention of the word Making a declaration that in future things will have to be changed, that people will get living wages and the future govern ment of independent India will strive to bring about a change in social and economic order to end the sufferings of masses he futher said. It will not profit you much if there is change in your 10 ·[ 40 ] 71 masters and your miseries continue You want a living wage and not a dying wage You want to prevent exploitation of man and to ensure equal opportunities and fair conditions of living for 211 It is cert un that this cannot be done under the existing system By the year 1929 Pt Vehru had established independence League the aim of which were A Social Democratic State and State Control of the means of production and distribution steeply graduated income and inheritence taxes universal free and compulsory primarı education adult suffo age a minimum living wage excess profit taxes support for trade unions unemployment insurance an eight hour work day abclition of untouchability equal status for seves in 1 far reaching land reforms removal of intermediaries etc? This in short chalked out a programme for the state of free India to implement and much of the Directive Principles is constituted of these aims declared as back as 1929 These constitute the programme of the Rights to be given by the State Those rights which State of free India could give immediately were put in the category of Fundamental Rights such as untouchability equality of seves etc and which state could not give and aimed to provide in future depending on the availability on the resources were put under Directive Principles It is a fact that some leaders in the Congress were against socialistic principles being in corporated and in the programme of National movement but the important point is that inspite of their oppo itron Congress was gradually drifting towards socialism and the crucial election of Pt Nehru as President of Lahore Congress Session in 1929 ards great controversy on the clear support of Gandhiji proves that Pt Nehru s views and ideology was gaining greater support His privilege to nutroduce in the Constituent Assembly the Objertives Resolutions which formed the backbone of the Indian Constitution further proves that his opponents ultimately acquised to his views bacause they found themselves in minority The Objectives Resolution passed unanimously by the Constituent Assembly 7? The triumphant spirit was that of Pt Nehru and his creed of socia lism which took the shape of words in the lines of our Preimble Was ·} [ 41 ] where there is a clear expression of the Ideals of economic and social justice, and later on at Avadı and Bluneshwar sessions congress accepted without any ambiguity the principles of socialist pattern of society Championing the cause of the poor masses in his Presidential address before Lahore Congress Session 1929 Shri Nehru elaborated his ideas about socialism and the problems of the country further in the following words No solution was found for the problems of equality India deliberately ignored this and built up her social structure on inequality and we have the tragic consequences of this in the millions of our people who till yesterday were suppressed and had little opportunity for growth And so today politics has ceased to have much meaning and the most vital question is that of social and economic equality India will also have to find a solution to this problem, and until she does so her political and social srtucture cannot have stability I must frankly confess that I am a s cialist and a republican and am no believer in kings and princes or in the order which produces the modern kings of industry The interests of Indian capital and the owners of big Zamındaris are ever thrust before us and they clamour for protection The unhappy millions who really need protection are almost voiceless and have few adyo I recognise however that it may not be possible for a body constituted as is this National Congress and in the present circumstances of the country to adopt a full socialistic programme But we must realise that the philosophy of socialism has gradually permeated the entire structure of society the only point in dispute 18 the pace and method of advance to its full realization India will have to go that way too if she seeks to end her poverty and inequa lity for India means the peasantry and labour and to the extent that we raise them and satisfy their wants will succeed in our tash We can only gain them to our side by our espousing theu l'he congress it is said must hold the balance fairly between capital and labour and jamındar and tenants But the balance has been and is terribly weighted on one side maintain injustice and exploitation The All India Congress Committee accepted this ideal of social and economic change in a resolution it pas ed come months ago in Bombay I liope the cates cause to ·[ 42 ] congress will also set its seal on it In this programme perhaps the congress as a whole cannot go very far today But it must keep the ultimate ideal in view and work for it We have to decide for whose benefit industry must be run and the land produce food Our economic programme must therefore be ba ed on a human outlook and must ro sufice man to Money If an industry cannot be run without starvin, its workers then the industry must close down If the worhers on the land have not enough to eat then the intermediaries who deprive them of their full share must go The least that every worker in field or factory is entitled to is a minimum wage which will enable him to live in moderate comfort and human hours of labour which do not break his strength and spirit All these are pious hopes till we gain power Thus Shri Nehru seems to be giving a pledge to bring about all these desired changes when India becomes free The purpose and aim of our constitution and specially of Directive Principles should be viewed in the context and background of such expressed sentı ments and promises Any one who keeps these things in mind will not say that the programme of abolition of Zamındary system taking over of mills Banks factories in the interest of labour and similar other welfare programmes which try to end exploiting classes is playing a fraud on the Indian Constitution No body was left in dout about the programme of the Govern ment and state of free India Elaborating his ideas about the importance of working classes and bushan Pt Nehru further said We cannot escape having to answer the question now cr later for the freedom of which class or classes in India are we specially striving? Do we place the masses the peasantry and workers first or some other small class at the head of our list? essentially whom do we stand for and when i conflict arises whose side must we take? To say that we shall not answer that question now is itself an answer and taking of uses for it means that we stand hy the exsting order the statusquo The form of Government is after all a means to an end even freedom itself is a means the end being human well being human growth the ending of poverty and suffering All this foretells about the aims of the future Constitution of India 76 ·[ 43 ] in his mission and the contents of the Constitution of free India should be under stood and interpreated in the context of such expressions The conflict of statusquo maintaining fundamental rights and dyna mic Directive Principles should also be understood and appre crated in this context In 1934 even after his resignation from the Congress Gandhiji continued to fayour Pt Nehru as its "rightful helmsman In September, 1934 he wrote to Sardar Patel I miss at this juncture ( association and advice of Jawaharlal who is bound to be the Tyliſul heimsman of the organization in the near future He 13 courage personified He has an indomitable faith 78 Inspite of Gandhijis support Pt Nehru experienced opposition from some of the old guards of the congress organıza tion on the issue of socialism and economic policies and other reforms This point is being stressed because when the ques tion of acquisition of the property and abolition of estates was discussed in relation to compensation and agrarian reforms there appeared serious differences between the outlook of conservative clernents and socialistic elements of the congress organization in Constituent Assembly One group was in favour of giving com pensation at market value plus 15% solatium while the other group led by Pt Nehru was not in favour of giving compensation to that extent and eventually a compromise formula was evolved according to which the question of compensation was decided in such a way that the state on acquinng property will give compen sation accordmg to last and the quantum of the compensation will be decided by the legislature These points have a direct bear ing on the issues of Fundamental Rights and Directive Principles and the various amendments of the Constitution to implement Directie Principles Inspite of his keen differences with some of the old guards of the organization who were also members of the working committee Pt Nehru went on holding triumphantly to the ideals of socialism In his presidential address at Lucknow Congress (1937) he further advocated his views about the problems of India and their solution and the shape of things to come in frer India and said I am convinced that the only key to the solution of the world s problem and of India s problem lies in socialism I see no way of ending the poverty the vast unemployment des ·in 7 7 [ 44 ] radation of the Indian people except through socialism That involves s ast and revolutionary changes in our political and social structure the endng of vested interests in land and indus try that means the coding of private property except in a restricted sense and the replacement to present system short it means 7 new civilization radically liff runt from the pre sent capitalist order Socialism is thu for me not merely an economic doctrine it is a vital creed which I hold with all my hend and heart As 1 corollary of socialistic prinriples which Pt Nehru enun ciated a planned development of economy is necessary Commen ting on this point Dorothy Norman in her famous biography of Pt Vehru writes Just as Nehru had exerted the most important in fluence in Congress and in the country at large in makıng India wware of both international suns and the need for a Constituent Issembly so he was the first and most forceful exponent in the country of national plannin, Cven b fore 1938 he felt strongly that a National Pinnin, Committee should be created when he urged that such a committee b for nally apprinted in 1938 and the Congress approved his sug,es in he zsked to be its chair Later as Prime Minister he was to play a decisive role in helping to formulate inaugurate and implement free India s seve ral Five Year Plans The very essence of the planning is a large measure of re, ula tion and cordination The general puniciple governing National Policy were lud down lyriculum al land quairies rivers and forests are forms of national wealth ownership of which met vest absolutely in the people of India collectuely The co-operuive principle should be applied to the exploitation of land by developing collective and cooperative forms No intermediaries of the type of Taluqdars Zamındars etc should be recognized after the transition per od was over the system of credit should Ix socialized Thus through the consideration of special problem we gradually developed our social objectives and policy We could not th n plan for Socialism as such Yet it became clear to me that our plan as it des eloped was inevitably leadın, lis towards establishing some of the Fundamentals of the socialis tic structure Planning though inevitably bringing about a man 8 nines ·( 45 ] grtat deal of control and coordination and interfering in some measures with individual freedom would as a matter of fact in the context of India today lead to a vast increase in freedom "7J Thus we note that the shape of independent India was already visualized and framed before independence and the ideals of the constitution were well established It meant the establishment of socialistic type of state where the interests of few will not be allowed to block the interest of the masscs The framing of Indian Constitution was done to bring about these desired changes and the written Constitution is only a culmination of the political thoughts expie sed so far and is the crystallized and physical form cf those ideals The contents of various Articles of the Constitu tion should be understood in continuation of this historical evolu tion of the process of freedom and not in isolation The roots of Indian Constitution are fired in this background Enough mate rial has been now provided in this chapter, even with the help of long abstracts and quotations for the right understanding of the aims ideals and aspirations of our Constitution and its historical hackground Winte er Rights could be given immediately, were put in the chapter fundamental Rights and were made justiciable and those which could not be gren immediately, were put in the Chapter of Directre Principles to be provided in future depend ing on the availability of the resuurces of the State and the circum stances of the community The Directive Principles were thus the Rights towards whi h the state has to strne because in pre in dependence days a pedy was given to achieve them We have also noted that Pt Mehru hud mole emphasis on economic and social rights and con dered political nights as worth while only so fur they contributed to the healization of the former Vostly poli tical ri. Its have been included in Chapter 111 and economic rights, in the Directive Irinciples If the Indian Constitution has freen framed to realize these economic rights in ultimate analy51% their importance is greater if the political nights of few block the progress of economic and social rights the former linye to be imen dled this exactly was meant when Pt \chru in I oksabha ninin turned during the debate on the Fourth Constitution Amendment Till that 'It is upto this Parliament to make the fundamental Rights subserve the Diretine Principle of State Policy, #Die to ·[ 46 ] make political rights subserve economic and social rights Any body who has the knowledge of our freedom truggle and its real aims and aspirations will realize that this stand was not a new one for It Mehru He had been constantly muntaining it and we have traced his viens through a consid rable long period to leave nobody in doubt The emphasis on economic rights 15 a product of socialistic creed because believers of socialism think that mere political rights re not enourh and western democracies which put so much emphasis on only political rights are not perfect models Stalin, said What can be the personal freedom of an unemployed person wlio gces hungry and finds no use for his toll? Only where exploitation is annihilated where there is no oppres sjon of some by others no unemployment, no beggary and no mbling for fear that a man on the morron lose huis work his habitation his bread only th re is true freedom 81 Many Fun damental Rights enumerated in the Soviet Constitution have bøen included in our Directre Principles such as right to employment and work right to rest and leisure right to maintenance during old age sickness disability right to education etc Our Dırıc tive Principles him to translate the ideals of these rights into prac cice dependıng upon the economic capacity of the State Thur we note that many provisions of our Directne Principles are just precursors of the Fundamental Rights It is a great irony that similar points of Indian and Soviet Constitutions are not empha sized and more enphasis is laid on the similarities between the Constitution of USA and India We now finally come to the stage of the Constituent Assembly of India and the Oujectives Resolution which was moved in the Constituent Assembly This resolution is a key to the under standing of our Consutution and it clears many doubts about its true nature Its Article (V)2 is most important which in substance forms the Preamble of Our Constitution This resolution spells the Objectives for which the Constitution of India was to be framed and it provided guideline to the Constituent Assembly for framing the Constitution This point was emphasized by Pt Nehru himself in the following words But even now, at this stage it is surely desirable that we should give some indication to ourselves to those who look to this Assembly as to what we ·[ 43 ] It is a the meaning It is may do what we seek to achieve, whither we are going with this purpose that I have placed this Resolution before this House 84 Explaining the importance of the 'Objectives Resolution Pt Nehru said in the Constituent Assembly Dec, 13 1946 that it is not a mere resolution, it is something much more then a resolution "It is a Declaration It is a firm resolve pledge and an undertaking and it is for all of us I hope a dedication and appealing to the House he said "I wish that this House if I may say so respectfully should consider this Resolution not in a spirit of narrow legal wording but rather look at the spirit behind the Resolution 43 Here he appears to be saying to the p ople and the future interpreterers of the Constitution not to miss the real spirit the Constitution on the basis of narrow legalism If courts and defunders of the vested interests were to heed to this appeal they would have construed of the Articles in this sense and kept the real spirit of the Constitution in mind there would have been no controversy regarding the relative value of Fundamental Rights and Directive Pan iples and there would have been no need to amend the constitution for the implementation of the Directive Principles Commenting on the Objectives Resolution he further said in same speech "It seeks very feebly to tell the world what we have thought or dreamt so long and what we nou hope to achieve in the near future It is in that spirit which I venture to place this Resolution before tht House and it is in that spirit I trust the House will recei e it He secms to be emphasizing liere that the framing of the Constitution should be done in keeping with this historical background ideas and sentiments so far <xpressed and its interpretation should also be done in the same historical perspective He further said that this resolution prescribes the fundamental Principles of the draft Constitution Thus Resolution therefore lays down certain Fundametals which I do believe no party or group and hardly any individual in Indın can dispute 35 Cxplaining further that why words Socialut Statc hile not been used in this Reso ution PE Sehru said *We have done something much more than using the word We liave given not only the content of democracy but the content if I may sti so of economic democracy in this Resolution 84 90 ·| 48 ) 7 lle explained that the uer of wond xude Staten hore lon cleleted not lxcause he did not want to uirit or lor had desiatal fimi lin curier *** I ut frecuur aliis pop'r ma lur harc oily cred to its us and tie " inied this Roulutuin to do pro unanimousls and without debate Others mi har oy cuinn to lliures olution on the roun! that we have not what it sliould le 110% nic site Well I sind in (xulum and 1 hop In in all stand for 101111493 ind til indir will go towards the Constitution of a soxur Stan Bu main thing is that in such a Rey lutron al zes ortance to my dmirr I hid put that we wanted social i stile wr would liste put somethin, which might bre paper atsle in an ind m. hnly agrreille some and we wanted thus Resolution of 10 le controversial Therefort webrir laid down not tlimaratıcal words and formulas but rather thr content of the tun, we desire I hos 13 important and I take it there in tx na dispute about it 1 lius we noir int he (Shure Schiru) crtevatie is expressen, tlu uc stand for 1 Contatution such as found imrntally settler in spiration wluch should incorporate the ideals of economie dem xcruci Without nutunlls usine the word \xialsst sinte de a snied Indian Constitution to be sex 1listit in spirit Althout he nee the Constituent Assembly was free to make an am of Constitution but alter the acceptance of Oljeestles Rronlution at wuld not framtr ly ally and morally any (unstitution which w 11 tot inconsonance with the sentiments of economic mu neil justice as expressrd the Olyrctnes Results Ilus (on lituent Issemb i mny do the at 1111 undertake onks in one nx if you like it limits our work If you all that limituon that is ve 20 litre to certain fundamental propositions which are tnx donn in this dechiralion Mo mly challenges them in India and no fxxcy ought to challen, theon lut if any bxxls should rluallenge thicon well we shall accept ilie (hilling A constituti in frumud on such cxpressed categorical underst inding < innot but be socialist in aspiration To interpret such 1 con tifution in isolation without regard in these fieis it the defence of the rested Interest in property and annud iriat on the basis of the idols of the Constitution of USA citot be ju ufiril Such: wrong understanding has to Be carnecked if the Constitution is understood and intcrprend BR ·[ 49 ] in this background of economic democracy and socialist aspiration the sanctity of property rights, compensation etc would not have mattered much and Constitution would not have been interpreted so as to cause apparent disharmony between its two chapters 1 his point was emphasized in the Constituent Assembly by Prof IT Shah when he wanted words Socialistic State in the Constitution 39 Explaining his point he said 'I have one more word to add As I said at the very beginning this is not merely an addition or amendment to correct legal technicality or make a factual change but an aspiration and also a description of present facts There are the words "Shall be in the draft itself I therefore take my stand on the term "shall be , and read in them a promise and hope which I wish to amplify and definitise I trust the majority, if not all the members of this House will share with me' 90 Dr Ambedkar assured the House and Prof K T Shah that the Socialistic Pri nciples and aspiration have been already included in the Directive Principles and hence there is no need for that amendment What I would like to ask Professor Shah is this If these directive principles to which I have drawn attention are not socialistic in their direction and in their content, I fail to understand what more socialism can be 91 Thus it is clear that even in the view of D. Ambedkar, socia list principles have been included in the Constitution through Directive Principles It has been traced through long history of freedom struggle that socialistic elements cannot be ignored because It has been one of the prominent and major question for our freedom fighters If any attempt is made to decrease the due value of Directive Principles meant for the realization of pledged economic and social circumstances it will be going against the direction of the evolution of our political philosophy and history If this cardinal fact is kept in mind doubts about the real significance and relative value of Directive Principles will disappear ·41 to Background and sources of 'Rights' in the Indian Constitution In the famous case of Srimatı Champakam Dorirajan Vs I he State of Madras and CR Srinivasan and The State of Madras Supreme Court of India declared unanimously that The Chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislatie or Executive Act or order, except to the extent provided in the appropriate Article in Part III The Directive Principles of State Policy have to conform to and run as subsidiary the Chapter of Fundamental Rights . This declaration clearly means to hold that the rights of Chapter III of our Constitution are of superior value than those of Chapter IVth The main reason for such 1 view is that the rights of Chapter III are judicially enforceable and while those of Chapter IV are not enforceable by the Courts Thus the point of enforcement by the courts is considered to be the main reason for assigning superior value to that chapter but the reasons and moti ves for making those rights ( of Fundamental Rights Chapter ) enforceable and those of Chapter IV (of Directive Principles) not enforceable by the courts have been ignored It is the established Principle of Interpretation of contracts treaties and other docu Inents either of International Law or of Municipal Law that for ascertaining the real scope of these documents the motives and the circumstances leading to their formation may also be referred There has been much controversy about the relative value of the chapter of Fundamental Rights and Directive Principles hence it is worth wlule to enquire, what were the circumstances motives reasons leading to the acceptance of the principle that one set of rights be made enforceable by the courts and that of the other not so? It has been pointed out in the previous chapter that whatever rights State could provide immediately after the enforce ment of the constitution have been included in the part III of the constitution eg right of equality before law right of equal access to shops public restaurants hotels and places of public enterta inment use of sells tanks bathing ghats etc and which state could not provide immediately but which State wanted to make to

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·[ 52 ] unable to secure these circumstances the State may not be sued in the courts This was the basis of division and categorisation of rights in the Indian Constitution and whether these rights are included in Chapter III or Chapter IV they both are rights and constitutional rights because the provis1075 of Directive Principles are as much part of the Constitution 15 are Fundamental Rights because they too have been put in the Arile of the Constitution The enforcement of one set of rights and net of the other by the courts was provided on the basis of expediency and practical con sideration and not on the basis that those made enforceable by the courts were meant to enjoy any supremacy or higher status If the state were in a position to provide all those rights which have been included in the Directive Principles it would have made them jus ticiable right from the beginning but actually the state was not in such a position when the Constitution became operative and there fore to save the state from the embarrassment and the consequen ces of judicial actions it has been pr vided in the Constitution that some of these rights are not justiciable Yet the simple classifica tion based on expediency has been understood to mean that those trade justiciable have a distinctly superior status over those which are not justiciable Our freedom fighters political leaders and the makers of the Constitution never visualized that such a situation will ever arise as has arisen due to the stiff and rigid attitude of the courts as 15 evidenced by the decisions of the courts in a number of cases in which courts upheld the superiority of the articles of Fundamental Rights over those of Directne Principles including in the decision of the Supreme Court of India on the Seventeenth Amendment Act Let it be enquired that what has been the overall back ground of our rights and what has been the scheme on which our rights have been based and why were they classified ? Commenting on the general nature of the rights O P Agarwal writes From an analysis of the Fundamental Rights included in the Constitutional documents of the different countries we notice that the makers of the different Constitutions have generally recognised a distinction between two broad classes of rights ·[ 53 ) There are cert un rights which require positive action by the stare and such can be gurrinted onls so far as such action 15 practicable, while others require that the state shall alostain from interference or prejudicial action The first Category of nghts are those which merely require the state in the language of Irih Constitution to direct its policy towards securing that the citizens may, through their occupations find the means of making reasonable provision for their domestic needs Au an example of the first variety, we may take the right to work which it is not perctıcıhle for the Strle 10 buriniec to each individual citizen A rupical example of the second saricly is the rivht wuch requires, in the language of tlle American Constitutio) that the State shall not deprise any citizen of hus liberty without due process of 116 Sumne Constitu tions hue mentioned both clu3cs of ry hits inder the lead of fundamental rights & the Soviet Constitution and the Wermar Constitution of (erman l'hi distinction us homic clearly recognised in Irish Constitution which de nis sath I un damental Right strictlt so called and then with Directric Principles of Social Policy being exclusricly excluded from the purview of the coures 0 From this we derive thit in many countries Fundamental Rights liric licen put in the categorie s one enforceable legally and others not but both sets of categories of rights are rundamental Rights the non enforce lile Tundamental Rights has been inclu ded in the Irish Constitution under Directue Principles of Social Policy while in the Russian Constitution there is no such disture tron The rights enumerated in Directie Principles are also part of fundamental rights The important point which is to be noted here is that firstly, I 1o be recognised beyond any doubts that the sets of rights are fun damental rights they are the liranches of the same stock and for practical connderations only one has been made legally enforceable and other not This simply is the muffer, and there is no attachment of any special status to one brinch of rights We have Isorrowed the scheme of classification of rights from the Irish Cons ·( 54 ) titution Much of the confusion about our Directive Principles, will Vanish if it is acknowledged that they are part of Fundamental Rights and not something else both are the species of the same genus and only for practical considerations they have been put into two separate chapters or parts In fact no such confusion would have artsen if it were mentioned in our Constitution that the rights in both are Fundamental Rights and one set of them is enforceable and others not or both should have been included in the same chapter with the Title the fundamental Rights with tuo parts one dealing with justiciable and other with non justiciable rights However if we look into the scheme which produced this classification, that is the intentions of the framers of Irish Constitu tion of framers our constitution and the proceedings of the Indian Constituent Assembly we can conclude that practically the same was meant to be done and same principle has been accepted ne the rights of the chapter IIIrd are justichble and those of Chapter IVth non justiciable In short the essence of the argument is (under discussion) that in the Indian Constitution rights have been dispersed in two chapters under the compulsion of practical nece ssity Our rights whether included in the Chapter III or IV th emanate from the resolution on fund unental rights accepted at the barnchi se sion of all India Congress Committee 1931 and the objectives resolution introduced by late Pt Nehru in the consti tuent Assembly on December 13 1946 At the time of the adoption of the Resolution on Fundamental Riphts and Economic Policies a promise was given by the Congress that any constitution agreed upon on behalf of the congress shall provide these rights The text of that famous resolution is being reproduced below — This Congress is of (the) opinion that to enable the masses to appicciale what Swaraj as conceived by the Congress, will mean to them it is desirable to state the position of the Congress in a manner easily understood by them In order to end the exploita tion of the ma ses political freedom must include real economic freedom of the starving millions The congrese threfore declares that any constitution which may be agreed to on its behalf should provide or enable the Swaraj Government to provide for the following ·[ 55 1 FUNDAMENTAL RIGHTS AND DUTIES (1) Every Citizen of India has the right of free expression of opinion, the right of free association and combination, and for the right to assemble peacefully and without arms purposes not opposed to law or morality (11) Every citizen shall enjoy freedom of conscience and the right freely to profess and practise his religion subject to public order and morality (111) The culture language and script of the Aſinorities and of the different linguistic areas shall be protected (iv) All citizens are equal before the law irrespective of religion caste creed or sex (v) No disability attaches to any citizen by reason of his or her religion, caste creed or sex in regard to public employ ment office of power or honour and in the exercise of any trade or calling (v1) All citizens have equal rights and duties in regard to wells tanks roads schools and places of public resort main tained out of State or local funds or dedicated by private persons for the use of the general public (v1) Eycrv citizen has the right to keep and bear arms accordance with regulations and resery ation made in that behalf (v111) No person shall be deprived of his liberty nor shall his dwelling or property be entered sequestered or confiscated save in accordance with law (1x) The State shall observe neutrality in regard to all rel: giens (x) The franchise shall be on the basis of unn ersal adult suffrage (vi) The State shall provide for free and compulsory primary education (x) The State shall confer no titles (ru) There shall be no capital punishment (xv) Every citizen is free to move throughout India and to stay and settle in any part thereof, to acquire property and to in ·[ 58 ] 101 pendence because the nationalist in me cannot tolerate alıen domi nation, I work for it even more because for me it is the inevitable step to social and economic change. In the Preamle of resolu tion on Fundamental Rights, more emphasis has been laid on economic policies 'In order to end the exploitation of the masses political freedom must include real econ,mic freedom of the star ving millions 100 In order to end the exploitation, conditions of real econonuc freedom of masses is essential This resolution on fundamental rights and I'conomic policy was greatly supported by Pt Nehru "I spoke on other resolutions too including one on Fundamental Rights and economic policy It represented a new outlook in the Congress In the Karachi resolution Congress took step in the socialist direction by advocating Nationalisation of key Industries and services and various other measures to lessen the burden on the poor and increase it on the rich The emphasis on the economic policies and desire and pledge for the economic upliftment of the millions was the goal of the aceptance of this Resolution This resolution is the important source of rights of our Constitution and hence broadly it can be acccepted that our constitution and rights incorporated in it are for fulfilling these aims The rights of economic nature of the interest and welfare of the poorer sections of the community Lisans and Mazdoor (labour class) have been mostly included in the Directive Princi ples How can then the Directive Principles through which economic rights and hopes of the struggle movement are sought to be realised can be of any less relative value? Further Congress accepted this resolution on Fundamental rights in conjunction with certain economic policies The full title of this Resolution is "Reso lution on Fundamental Rights and Economic policy Thus in this title Fundamental Rights have been bracketed with Economic policies It is therefore clear that even as early as 1931 it was emphatically held and made clear that whatever set of fundamen tal rights is accepted or will be accepted in future they shall be associated with a particular type of economic and social policy which is to be based on the abolition of Zamındari exploitation of all kinds and nationalisation of key industries and services, real economic freedom for the poors, that is even in 1931 it was made ·[ 59 ] clear that no concept of fundamental rights 13 acceptable to con gress or shall be acceptable to it in future, if it is not associated with some accepted principles of economic and social policies The substance of the argument is that fundamental rights have valıdtıy only in the context of certain economic and social policies and not in isolation If this argument is accepted and it should certainly be accepted courts should not have declared many steps of the state meant for the abolition of Zamındari and nationalisation of key industries Commenting on this point Ex Chief Justice of India Shri Gajendra Gadkar says. When laws were passed in States like Uttar Pradesh Madhya Pradesh and Bihar with a view to bring ing about this over due agrarian reforms their validity was chal lenged In Madhy? Pradesh and Uttar Pradesh the challenge failed but in Bihar challenge succeeded and the Patna High Court held that the impugned Bihar legislation was unconstitu tional Thus many courts while giving decisions ignored the background and sources of the rights of our Constitution The quintessence of the argument is that even as early as 1931 National Congress Organisation pledged itself to a set of Fundamental rights only in the context of well expressed and accepted economic and social policies, that is the Fundamental nights should be and shall be conditioned and attuned to the relevant economic and social policies This exactly has been done by incorporating in the pro visions of Directive Principles accepted economic and social poli cies and these are to condition the scope and extent of the Funda mental rights The Fundamental rights should be understood and Interpreted in harmony with these economic policies expressed in the chapter of Directive principles 107 Now a second point is to be taken for discussion, whether any hint has been given in the text or the speeches associated with the adoption of the resolution on Fundamental rights in 1931, that rights contained therein are of two distinct status, one of superior or the other of inferior In fact no such thing has been suggested The rights of this text have been distributed and mentioned in both the chapters that is in Fundamental rights chapter and directive principles, for example the substance of clause (1) of article 1 of ·[60 - this text "every citizen of India has the right office expression of opinion the right of free association, and combination, and the right to assemble peacefully have been incorporated in the Article 19 of Fundamental rights chapter vide clauses (a), (b) & (c) The substance of clause II of Articlc (1) of tins resolution in Article 25, clause (3) "The culture, language and script of the Minorities in the Articles 29 and 30 of our Constitution The other rights also have been included in the Irticles of Fundamental rights chapter 108 Similarly the substance of Article 2 clause (a) the organisation of economic life must conform to the princi ples of justice to the end that it may secure a decent standard of living (b) the state shall safeguard the interests of the Industrial workers a living wage, healthy conditions of work (c) ade quate provisions for leave during maternity period (d)' Intoxicat ing drinks and drugs shall be totally prohibited except for medıcı nal purposes have been incorporated in the articles of Directive Principles vide articles 43, 42 47 ctc Thus the rights enumerated in the Resolution on Fundamental right have been distributed in both the chapters concerned with the rights--chapter of Funda mental Rights and Directive Principles according to the expe diency and practical need, the basis of this expediency being that whatever Fundamental Rights State could give to the Citizens immediately on the enforcement of the Indian Constitution were put in the chapter III and the rest for the realisation of which ome time was needed till economic and social circumstances improved were put in the articles of Directive Principle Thus again it is proved that the basis of classification of rights in the e two chapters or parts of our Constitution is merely the compu of practical needs and not the ideal or any Principle or political philosophy that tho e included in one part are of superior status and those not enforceable by the Courts included in the other are of inferior status The second source of the rights of our Constitution is the Objectnes Resolution' introduced by Late Pt Nehru in Consti tuent Assembly on December 13th 1946 Qur Rights whether inclu ded in the Chapter III or in IVth emanate from the Karachi

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·[ 62 necessity and not for giving a special status to one group of rights If the force of this argument as supported by the evidences me tioned previously, is accepted there is no justification in treating one set of rights as of greater value or of a higher status as has been done in a number of court deci ions It is the accepted principle of the fundamental rights in our constitution, that they are not absolute By a number of clauscs and sub-clauses they have been limited in scope This limitation has been imposed in the interest of (1) Scheduled Castes and Scheduled Tribes (1) In the interest of minorities (11) In the interest of general public morality public order peace and relations with friendly foreign countries If the fundamental :ights have been limited in the general interest of the public and courts have recos nised the reasonability of these limitations on fundamental rights and if this argument and logic is accepted that fundamental rights can be limited in scope in the interest of general public further limitations can justifiably be put on the scope of fundamental rights If there is need in the interest of general public and common mas ses as envisaged in the provisions of directive principles The pro visions of directive principles are in main the means to uplaſt poorer section of the community such as labour class backward and scheduled castes Therelore if need be for the upliftment and fou creating conditions of better economic and social life for millions of people who have so far suffered have not got justice so far the property rights of others can be further limited It has been already pointed out that fundamental rights have validity only in the con text of an accepted economic and social policy The provisions of directne principles are therefore to condition the scope of ſunda mental rights of a new order is to be established where the state will provide the right to work to education of public assistance in case of unemployment old age sickness and will make provisions for humanc conditions of work, where all people will get living wage enjoying decent standard of life where the health and strength of workers and the tender age of children are not abused by the force and compulsion of economic necessity where ownership and con trol of the material resources of the community will be distributed so as to subsense the common good, and where operation of the means ·[ 63 ] cconomic system does not result in the concentration of wealth, and of production 10 the common detriment, and where all the citizens of men and women equally have the night to an adequate means luvelihood, and where there will be social economic and politi cal justice in all the institutions of tlic national life But the rigid drſence of fundamental rights of property to a very great extent has belied the hopes and expectations of the establishment of a social order as enumerated in the directive principles of state policy When directive principles nere being discussed in the constituent Assembly, many members had cxpressed their, fear, anxicly and apprehension about the destiny of tlc e principles in futurc Prof ht Shah was constrained to say "The Directives are in my opinion, the vaguest, loosest thickest smoke screen that could be drawn against the eyes of the people and may be used to make them believe what the draftsmen neser intended or mennt perhaps When those matters are brought before the tribunals for adjudica tion or arbitration they might not be interpreted in the sense the people might beliese those clauses to convey "IUO Many decisions of the courts have proved that Prof A r Shah s fears about the destiny of these principles were not without scisons On the other hand Dr Ambedkar dres a very rosy picture about the future importance of directive principles and he assured in the constituent assembly. Ithile we have established political democracy, it is also the desire that we should lay down as our ideal economic democracy It is therefore no use saving that the directive prin ciples have no value In my judyment the directe principles have a great value for they lay donn that our ideal 15 economuc democracy Because we did not want merely a parliamentary form of Government to be instituted through the various mecha Bums provided in the Constitunion without any direction as to what our economic ideal as to what our social order ought to be, we deliberately included the Directive Principles in our Cons titution. 107 Eluciating the value of these Directie Principles Dr Ambedkar further said in the Constituent Assembly "I am not prepared to admit that they have no sort of binding force at all nor am I prepared to concede that they are useless because they ·[ 64 ] have no binding force in law The Directive Principles are like the instruments of instructions who should be in power is left to be determined by the people as it must be if the system is to satisfy the tests of democracy but whoever captures power will ne le be f cc to do what he hakes with it In the exercise of it he will have to espect those instruments of instructions, which are called Directive Principles He may ot have to answer for their breach in a court of law but he will certainly have to answer for them before the courts of electorate at electiou time 108 However, the decisions of courts in a number of cases regarding aboli tron of Zamındarı and nationalization of some industries and ser vices etc have created serious set back in the realisation of economic democracy 109 When constitution was ready and when there was a general discussion about the nature of the Draft cons titution many members of the constituent Assembly expressed the view that the economic and social aspects of the problems of India have not been adequately expressed in the constitution Shri Arun Chandra Guha (West Bengal) remarked When we are going to frame a constitution it is not only a political structure that we are going to frame it is not only an administratie machinery that we are going to set up it is a machinery for the social and economic future of the nation I feel as for the economic side the Draft Constitution is almost silent It is rather anxious to safeguard the sanctity of property it is rather anxious to safeguard the rights of those who have got some thing and it is silent about those who are dispossessed and who have got nothing While there is much talk about the sanctity of property and the inviolability of property, things such as right to work right to means of livelihood and right to leisure etc. have been loft out and these things should have been effectively incorporated in the Constitution 110 Through these words Shri Guha was emphasizing that the directive princi ples in which the ideals of right to work, right to means of liveli hood and right to leisure etc have been included should be accor ded due importance Therefore it is not in fitness of the totality of the scheme of our constitution, to treat these rights (of Directite Brinciples) as of ·į 65 i subordinate order In fact if aspirations of the people are to be materialized and economic justice and economic equality is to be established, it is better to accord to them superior value, and furt damental rights should be made to subserve to them, if need be It has been pointed out through the study of the history, background and sources of the rights incorporated in Indian Constitution that the division of 'Rights in two chapters has been done merely for the sake of necessity and for no other reasons Rights of both chap ters emanate from the same source and same sentiments The rights of Directive Principles are as much part of the Constitu tion as those of Fundamental Rights Chapter In fact more impor tant rights which were left in unrealisable position due to circum stances and situation have been included in the Directive Princi ples and are to be made realisable through Directive Principles According to Article 37 111 It is the bounden and constitutio nal duty of the state to implement Directive Principles, and not to do so will not only reverse the entire historical process but also will be unconstiutional It is not justified to treat one set of rights as sacrosanct as if the other rights are less sacrosanct On the overd all assessment the rights of Directive Principles chapter are more important and if there is a clash between the two viz chapter III & IV those of Directive Principles have to be given superior value and those of Fundamental Riglits Chapter which come in the way of realisation of the rights of Directive Principles should be made to sub erve them by the suitable amendments of the Constitution Speaking on the motion by which he introduced the Tourth Amendment to the Constitution in Parliament Prime Minister Nehru observed that where there was a conflict between a Funda mental Right and a Directive Principle the latter should prevail This opinion may appear to be in direct conflict with the view of the Supreme Court But on closer examination it will be seen that the conflict 13 apparent rather than real The courts cannot go further than that but Parliament can The final solution 15 arrived at only when the social conflict arising out of the compet ing claims of a justiciable and a rron justiciable right are resolved The guiding principle here is the superiority of the social interest over that of the individual To facilitate the putting into effect of these principle the constitution may have to be amended and the ·( 66 ) Directie Principle allowed to prevail It should holicier be added that whenever the Court is called upon to resolica conflict between a fundamental Right and a Directie Principle it is the duty of the Court to resolve the conflict with an eye on the funda mental spirit of the Constitution and with a view to harmonizing differences to the orient that is possible and fcasıble The significance of Directie Principles in relation to that of Fundamental Rights can be determined only by making a reference to the object of the Constitution makers in making these principles an integral part of the Constitution As has already been pointed out they represent the basic principles which aim at the creaton of a Welfare State Taken together these principles form a charac ter of economic and social democracy in India On the one hand they are assurances to the people as to what they may expect while on the other they are directies to the governments Central and State as to what policies they ought to pursue It is unfair to the people as well as inconsistent with he spirit of the Consistinion to allow these principles 10 remain pious wishes Lvery effort should be made by the representata es of the people and the agents of the government to translatų them into reality Nothing should be allowed to stand in their way cven the ſund! mental rights guaranteed to the individual Alter all the pro,ress and welfare of society as a whole should not be hampered by the rights of the individual This is why every fundamental right is subject to reasonable restriction in the interest of the general pub lic whether such restrictions are on account of Public Order morality decency, health or anything else It is in this sense that the Fundamental Rights are to subserve the Directive Principles Indeed, there can be no real conflict between the two They are intimately related to and inseparably bound up with each others 113 These words speak very eloquently about the impor tance of Directive Principles in relation of conflicting fundamen tal rights It has thus been proved in this chapter (1) That rights in the Indian Constitution are not contained only in the chapter of fundamental Rights, (11) That 'rights also find expression in the chapter of Directive Principles (111) The study of the sources and the scheme of the classification of rights' in the Indian Constitu ·[ 67 tion, does not warrant that one set of frights' may be considered of a special status (iv) In fact more important frights' exist in the provisions of directiveprinciples (v) Sources of 'rights' whether included in chapter IIIrd or IVth are the same and that they were distributed in two chapters on account of practical need, (vi) The absence of those conditions due to which ‘rights of the chap ter of Directive Principles could not be made justiciable from the beginning of the constitutions have to be realised and any obsta cles in the realisation of those conditions will be patently un cons titulional, (v11) The scope of fundamental rights from the very beginning as a matter of principle has been limited in the interest of general public, scheduled and backward classes and hence further limitations can be justifiably imposed in the interest of these classes (111) Fundamental Rights have been accepted only in the context of the particular type of economic and social policy and this prin ciples is not new It was declared even as back as 1931 through the resolutions on Fundamental Rights and economic policy, adopted by the AICC at its karachi Session (1931), (1x) Therefore Directive Principles in which mostly matters and issues of econo mic and social policy have been included can and must condition the scope of the fundamental rights ·5A RIGHT TO PROPERTY -Article 31-Its amend ments and its relation to Fundamental Rights and Directive Principles of State Policy The discussion of property rights is very significant The entire concept of Socialism establishment of a new Social and Economic order, ending of the system af Zamındari the steps for making hisans owner of the land, removal of the concentration of wealth provisions of better and humane condition of work for the labour etc all revolve round the right of property The issue of the conflict of Tundamental Rights and Directive Principles is also mainly related to the right of property it has been pointed out in chapter III through the historical study of the aims and aspira tions of our freedom struggle that in future Zamındari system and large scale property rights will be abolished but in spite of this whenever state has made any attempt to abolish Zamındarı etc its attempts have been to a great extent frustrated in the defence of one or the other fundamental right It is now proposed to deal with the nature and extent of our fundamental rights to property and their relation to Directive Principles This is important because our Constitution has been amended more than once in relation to property rights Originally clause 2 of Article 31 read No property, movable or immovable including any interest in or in any company Owning any commercial or industrial under taking shall be taken possey ion of or acquired for public purpo ses under any law authorising the taking of such possession or such acquisition unless the law provides for compensation for the pro perty taken possession of or acquired and either fixes the amount of the compensation or specifies the principles on which and the manner in which, the compensation is to be determined and given In the present Article 31 (clause 2A) was inserted by the Constitution (Fourth Amendment Act, 1955 ) and that clause 2 in its present form was replaced by the same Act for the original clause which has been quoted above Now Article (before 42nd Amendment) 31 reads as follows 31 (1) No per on shall be deprived of his property save by authority of law ·( 69 ) (2) No property shall be compulsorily acquired or requisi save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and enher fixes the amount of the compensation or specifies the principles on which and the manner in which the compensation is to be determined and given and no such law shall be called in question in any court on the ground that the compersation provided by that law 15 not adequate (2A) Where a law does not provide for the transfer of the owner ship or right to possession of any property to the State or to a a corporation owned or controlled by the State it shall not be deemed to provide for the compulsory acquisition cr requisi tioning of property notwithstanding that it deprives any per son of his property? Article 31 A (2) substituted bythe Constitution (Fourth Amendment) Act 1955 S 3 for the ori ginal clause (with retrospective effect) 31A (1) Not withstand ang anything contained in article 13 no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishinent or modification of any such riglits or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property or (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper manage ment of any of the corporations or (a) the extinguishment or modification of any rights of managing agents secretaries and treasurers managing direc tors directors or managers of corporations or of any voting rights of shareholders thereof or (c) the extinguishment or modification of any rights accruing by virtue of any agreement lease or licence for the purpose of searching for, or winning, any mineral or mineral oil or the preamature termination or cancellation of any such agree ment lease or licence, shall be deemed to be void on the gro und that it is inconsistent with or takes away or avridges any of the rights, conferred by article 14 article 19 or article 31, ·[ 12 ] the appellant it is considered that it means the monetary equiva lent to the owner of the property of which he has been deprived The conclusion must therefore be that compensation in Aru cle 31(2) means the equivalent in value of the property taken or acquired subject only to the qualification that such equivalent need not be paid in money One of the provisions of clause (2) is that law must provide for compensation and as such compensation means the equivalent in value of the property acquired (as we have already held at) it follows that any provision for giving by way of compensation less than the equivalent will not amount to compensation in law and will constitute contravention of that clause Whether the law provides for an adequate payment or for di criminatory payment to diſſe rent owners the result is the same a fulure to provide for compensation in law 116 (It was also observed in this case that if a provision in any act providing different amount as compensation for the acquisition of the property is given for difterent slabs of income then also it contravenes the provision of Article 14 becau e it is discriminatory and then it also contravenes Article 31 (2) Further in a similar decision of the Rajasthan High Co irt in the case of Nathinal v/s Commissione Cıvıl Supp ies the comments in the d cision were We may add that if that was the intention of the framers of the Constitution that compensation provided un der Article 31 (2) should not be justiciable and that whatever was paid by the legislature would be proper compensation it would hase been unnecessary to provide Article 31 (4) and Article 31(6) We are therefore of opinion that the compensation to be provided by law when property is taken away should be fair com pensation which means equivalent in value of the property taken or acquired subject only to this qualification that such equivalent need not be paid in money 116 We may now further refer to West Bengal Planning & Development Act and it being declared unconstitutional due to the inadequacy of just compensation by the Supreme Court of Indi The State of West Bengal appealed against that decision of the High Court of Calcutta in the Supreme Court where the arguments of the Calcutta High Court were upheld The Supreme rourt maintained unanimously on Ilth December 1953 in its ·[73] famous decision on Bela Banerjee vis State of West Bengal The provisions of the Section 8 of the West Bengal Act XXI of 1948 making the declaration of the Government conclusive as to the amount of compensation so as not to exceed the market value of the land to be acquired on December 31 1946 were ultrayıres of the Constitution and void that in as much as Article 31 (2) of the Constitution made the existence of such purpose a (public purpose) a necessary condition of acquisition the existence of such a purpose as a fact must be established objectively that the impugned Act (WB Act II 1943) was not saved by Article 31 (5) of the Consutulion from the operation of Article 31 (2) thereof as 2f at had not been certified by the President of India as provided for bv Arncie 31 (6) that while it is true that the legislature is given discretionary power of laying down the principles which should govern the determination of the amount to be given to the owner for the property appropriated such principles must ensure that what is determined as payable must be compensation that is Just equivalent of what the on ner has b n deprived of that within the limits of this busic requirem nt of full ind•mn ti ation of the cxpropriated o vner the Constitution allows free play to the legislatıc judgment as to what principles should guide the deter auon of the amount payable but that such principles take into account all the elements which make up the true value of the property appropriated and exclude matters which are to be negle ceed is a justiciable issue to be adjudicated by the court 117 The Supreme Court further maintained in continuation' turning now to the provision relating to the compensation under the impugned Act it will be seen that the latter part of the provision to Sec tron 8 (thereof) limits the amount of compensation so is not to exceed the market value of the land on December 31, 1946 no matter when the land is acqwred Considering the impugned Act is a permanent enactment and lands may be acquired under it many years after it canle into force the fixng of the market value on December 31 1946 as the ceiling on compensation without reference to the value of the land at the time of acquisition 13 arba trary and cannot be regarded as due compliance in letter and spirit anh the requirement of Article 31 (2) dingly hold that the latter part of proviso (b) to Section & nf hom We accor ·118 [ 74 ] impugned Act which fixes the market value on Dec 31 1946 as the maximum compensation for lands acquired under it offends agamst the pr 12mns 31 (2) and is unconstitutional and void The appeal 13 dismissed with costs These decisions have been dealt in detail on purpose so as to make it abundantly clear that what were the views of the courts of the land regarding acquisition of property and its compensation and to show by critical study how far these views were in harmony with the expressed views of a new social ind economic order to be established in India in consonance with the *ocialistic aspira tions of our constitution and the ideals of an egalitarian society? The study of these decisions is also important because they snught to turn our constitution in a direction which was never irtended or 11 ua by the framers of the constitution Late Pr Nehru s speeches in the Parliament at the time of the consideration of the Fourth Constitution Amendment Bili cleared many sues of our constitution The vigorous defence of this amendment by Pt Nehru and his colleagues saved the constitution from t hing a turn which was never desired and by explaming the new concept of property and compensation the relative value of Fundamental Rights and Directive Principles, he created a new awareness regarding the fundamentals of our constitution and thus Pr Nehru gave the cons titution a right direction His views latter on were accepted by many courts of India including the Supreme Court in many cases 119 Therefore the critical study of these decisions is very important to know whether our constitution was drung It should be noted that these decisions of various courts were not in harmoni with the ideals and aspimtions of our freedom struggle nor watlı the socialistic aspirations of our constitution They are not in accordancu with the sentiments of the Preamble of the Fundamen tal Rights Resolution of 1931 accepted by the Congress nor are they in agreement with the Objectnes Resolution introduced by Pt Nehru in the Constituent Assembly In short these decisions praise some very important 155445 Firstly they raise the most important point whether originally also (before the relevant amendment) the wordings of Article 31 (2) allowed the question of justiciability and reasonability of the com pensation to be heard and deciced by the courts Secondly, they

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·( 76 ) the legislature the final word to determine the law 121 Similarly Justice Dass of the Supreme Court maintained ' a procedure lard down by the legislature may offend against the court s sense of jus tice and fur plav but that is wholly irrelevant consideration The constilution is supreme The court must take the constitution as it finds it even if it does not accord with its preconceived notions of what an ideal constitution should be Our protection against legislative tyranny of any lies in ultimate analysis in a free and intelligent public opinion which must eventually assert itself On serious reflection I find several insuperable objections to the introduction of American doctrine of procedural due process of law into our constitution That doctrine can only thrive and work where the legislature is subordinate to the judiciary in the sen e that the latter can sit in judgement over and review all acts of the legislature Such a doctrine can have no application in a field where legislature is supreme Although our constitution has imposed some limitations on the legislative authorities yet subject to and outside such limitation our constitution has left our Parliament and the State Legislatures supreme in their legislative fields In the main subject to limitations I have mentioned our constitution has preferred the supremacy of the legislature to that of judiciary The English principle of due process of law is there fore more in accord with our constitution than the American doct Tine which has been evolved for serving quite a different system 1'2 CJ hania and Dass J further hela in the case of AL Gopalan Vs the State of Madras in 1950 law in Indian con titution means only the law made by the competent legisla ture it is not endowed with the customary notion of natural jus tice good law bad law etc The word law has been used in the sense of state made law and not as an equivalent law in the abst ract of general sense embodying the principles of natural justice that is the expression procedure est ablished by law means proce dure established by law, made by the State that is to say Union Parliament or the legislatures of the State and it is not proper to construe this expression in the light of the meaning given to the expression due process of law in the American Constitution by the Supreme Court of America Similarly J Patanjali Shashrı also held "I am unable to agree 1 2 3 ·[, 77 1 that the term law in Article 21 means (it is true for other articles also where the word "Law occurs in the constitution) the immutable ard universal principles of natural ju tice It is difficult to accept the suggestion that law stands for the Jus naturale' of the civil law and that the phrase according to the procedure esta blished by law is equivalent to due process in its procedural aspect, for that would have the effect of introducing into our constitution tho e subtle and elusive criteria implied in that phrase which it was the deliberate purpose of the framers of our constitution to avoid , 1 2 4 Justice hania elaborating this point further said "A perusal of the report of the Drafting Committee to which our attention was drawn shows clearly that the Constitutent Assembly had before it the American article and the expression 'due process of law but they deliberately dropped the use of that expression from our constitution There is therefore, no justificatiou to give the meaning of 'Jus to law in Article 21 The phrase 'proce dure established by law seems to be borrowed from Article 31 of the Japanese Constitution It is not shown that the word law means jus in the Japanese Constitution The word 'due in the expresion due process of law in the American Constitu tion is interpreted to mean just according to the opinion of the Supreme Court of the USA That word imparts jurisdiction to the courts to pronnunce what is due from otherwise according to law The deliberate omission of the word due lends strength to the contention that the justiciable aspect of 'law that is to consider whetlier it is reasonable or not by the court, does not form part of our constitution By adopting the phrase procedure e tablished by law the constitution gave the legislature the final word to determine the law 125 Although the above cited viens of the eminent judges are in relation to Article 21 of the constitution which comes under Right of Freedom but same is true for the word 'law used at other places also in our constitution including for Article 31 as is evidenced by the following comments of Justice hania The word law as used in this part that is IIIrd of the constitution) has different shades of meaning but in no other article it appears to bear the indefinite meaning of natu If so there appears no reason why in this Article it should recene this peculiar meaning Article 31, which is also in part ral justice ·( 78 ) Part III and relates to the fundamental rights in respect of propesty runs as follows to person shall be deprived of his property save by authority of law It is obvious that in that clause law must also mean enacted law The object of dealing with property under a different article appears more to provide the exceptions Suund in Arucle 31 (2) to (6) rather than to give the word 'law a different meaning than one gren in Article 21' 120 Thus, the contents of the speech of Dr Ambedkar and opinı ons of a few learned judges quoted and cited abos e, convirringly prove that in the matter of law under Indian constitution final say has been left to the legislatures For this reason courts cannot gre decision whether a particular law 13 reasonable or unreasonable, or whether it is just or unjust They cannot equate Jus with Jaw' They can only decide about the consti tutional authority that is whether a law has been made according to the established procedure and whether the powers to make that law has been granted by the constiution to that legislature The power of pronouncing whether the law is just or not, whether it fulfils the carnons of natural justice whether its con tents are tee enable or net are not within the jurisdiction of the Further these views are applicable to Article 31 also which is the main point of discussion in this chapter Even after fully knowing the difference between the procedure established by law and due proce sef las our courts gave decision on the Lsue whether amount of compensation for acquired property under Article 31 (2) is just or not In Dela Banerji : case and ſew other cases cited in the beginning of this chapter courts pronoun ced that due to the unren onable quantum of compensation, the part of the West Bengal Planning and Land Development Act as void of the constitution In that case (Bela Banerji s case) Chief Justice Harris had maintai ed But it seems 10 me that the word rea onable or just qualifying the word compensation is really not necessary because compensation to be compensation must be reasonable or just equiva ent if it is not a proper equivalent then at is not compensation and anything which is unjust or unrea sonable can never be regarded as an equivalent In my view Article 31 clause (2) requires a just amount to be given Simi larly the Supreme Court maintained in the same case what or not courts ·ani interest in ( 79 ) us determined as payable must be compensation that is jut but that equivalent of what the owner has been deprived of such principles take in to account all the elements which make up the true value of the property appropriated and exclude matters which are to be neglected i a justiciable issue to be adjudicated by the court 127 Thus it should be noted that although courts were precluded from pronouncing judgement about the equivalent value of the compensation to be given by law, yet they did it Now the second question which arises is that whether the words of original article 31 clause (2) gave any scope for the courts to entertain a case on the issue of compensation to be gnen for a property acquired under law for public purpose The rele vant clause reads 'No property movable or imm vable including or in any industrial undertaking shall be taken possession of or acquired for public purposes under any law autho rising the taking of such possession or such acquisition unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation or specifies the pruc pes on which and the manner which the compensation is to be determined and given If the above quoted words are carefully noted it will be clearly observed that (1) for acquiring a property for public purpose there should be the authority of law (2) the law should provide for compen sation or should either fix the amount of the compensation or determine the principles (3) no where the jurisdiction of court is permitted by the language and words of this clause The words do not say that courts can determine whether the compensation is reasonable or not Only the legislature and law made by it and compensatın determined by it are in picture Even with this clear position the courts entertained cases and gave decision on the question of justiciability of the compensation and even maintained that the question whether compensation given for the acquired property is just or unjust reasonable or u reasonable as a ju ticiable matter Thus courts went beyond their jurisdiction Now we come to the next important point which arises as a consequence of such decision about just crability for the acquired property These decision had far reaching repurcussions on such matters for example on the nelfare schemes of the country an ·[80] mainly abolition of Zamındari and other political and social and economic questions It also created the question of authority of Parliament vis a vis judiciary and relative importance of the many provisions of Directive Principles in relation to fundamental rights of property and profession Surh decisions were mainly responsible for the introduction amendment Bull (I ourth, and subsequent constitution Amendment Bills) Tempers ran high in the Parliament on the issue of this Constitution Amendment Bill and there were heated controversies and discussions inside and outside Parliament about the fundamental of our constitutions in relation to property 128 Some people called this amendment a fraud on the Indian Constitution Through this amendment in a very clear langunge courts prolubiled from entertaining any case res, ardın justiciability or the reasonability of the compensation for the acqui red property Regarding this amendment and for explaning thr intentions of the framers of the constitution about the payment of compensation for the acquired property Pt Nehru said in Lok Sabha on 14th March 195. It my privilege in fact to move this Article (Article 31) or the correspondence one (Article 2 + of the Draft Constitution of India) before the constituent Assembly and I gave expression to my news as to what it meant fairly clearly then One might presume therefore what the intention of the mosers of those articles was when they placed them forward and therefore what the intention of the Constituent Assembly was at that time Eut we need not trouble ourselves about at If the Supreme Court or the High Courts of this country have interpreted those articles in a different way, contrary to the intention as expressed by the very movers of these articles in the Constituent Assembly, they have every right to do so We can not say that they should go back to refer to the speeches made and the rest It simply means that we who put forward these articles were in error in drafting them we did not put forward, we did not define precisely whatwe meant Now I had thought when we passed this article in the Constituent Assembly that we had made it perfec tly clear that Parliament would fix either the quantem or the rules governing compensation and after that there would be no challenge at all Well inspite of that it has been challenged and in fact challenged effectively In fact what we are doing ·129 [ 81 ) but so far Article 31 is concerned is that we are merely repeating th more precise and clear language what we had said before That 15, previously it has been said that there would be com pensation but Parliament would determine the quantum of it or fix the rules governing it From the above quoted lines of the speech of Pt. Nchru it is clear that even in the Constitution As embly it was pointed out that the question of the componsation will be in the control of the Parliament and court shall not give decision whether the com Thus it pensation is reasonable or unreasonable, just or unjust has been discusssed that due to the existence of 'procedure estab lished by law courts went beyond their jurisdiction The words of the relevant clause of Article 31 also did not warrant the interference of the courts and now it has been just pointed out that even in the Constituent Assembly it was made clear that in the matter of compensation legislatures will have the final say and courts will not interefe e and it was made clear beyond doubt that the interferenre of the courts will not be tolerated in the programme of establishment of a new social and economic order to be achieved by eliminating the vested interests on land and other property Regar ding land policy of the Congress & Government Pt Nehru in the most emphatic language expressed many years before as follows- • The policy of the abolition of big estates is not a new policy but one that was laid down by the national Congress years ago So far as we are concerned we who are connected with the Congress shall naturally give effect to that pledge completelyone hundred per cent -and no legal subtlety no change, is going to come in our wáy That is quite clear We will honour our pledges. Within limits no judge and no supreme court will be allowed to constitute themselves into a third chamber No suprem* caurt and no judi cary wall sit in judgment over the sovereign will of Parliament which represents the will of the entire community 130 Thus the position of the judiciary la relation to abolition of Zamındari was made clear nearly sıx years before the discussion of the IVth Constitution Amendment Bull in the Parliament, (and nearly twenty five years before the enactment of forty fourth amendment Bill ) ·5B Arguments in favour and against the fourth Constitution Ameodment bill These decisions and consequently Fourth Amendment of the constitution created great constitution :l political and legal stir and furor in the country and the fundamentals of our constitution and our political philosophy came under hcasy and acrimonious discussions The careful perusal of previously mentioned decisions of various High Courts and unanimous decision of Supreme Court in the case of Bela Banerjee us the State of West Bengal, rause 1ery important issues for critical discusion The speeches of I ate P& Nehru then Prime Vlinister, Shri HV Pataskar Minister in the ministry of Law Shri Govind Vallabh Pant Minister of Home Affurs in the Parlament defended that the question of determination of the season ability of compensation for acquired property is beyond the scope of judiciary and origin ally also courts were on purpose precluded to give decisions on this issue The lourth Constitution Amendment Act prescribes in the most clear language that courts will not entertain these questions in future It was argued by these leaders that they are not changing the contents of the relevant articles of the constitution but are merely repeating the old thin, but in a more precise and exact language so as not to leave the courts in any doubt about their scope on this point On the other hand by the opponents of this amend ment It was argued that this amendment will abridge peoples fundamental rights of property and will expose them to the tyra nny of the legislature and thev will be deprived of the protection of the courts The sum and substance of the speeches of the defenders of this amendment W urgently necessary to void the interference of the courts if we want to establish in India a socialistic pattern of society and to realise the promised and expected circumstances of economic and social justice of a welfzre state Further it was emphatically expressed Chat she amendment (Foarck Construtional Amendment) was a keeping with the real wishes of the framers of the constitution and it harmony of the ideals of our freedom struggle, and in continua tion of the evolution of our cherished aims and real aspirations of was that it ·[ 83 our constitution It was further asserted in these speeches that these decisions of the courts have created a situation of apparent contradictio 1 and conflict between rund umental Rights and the Directive Principles of the State Policy This amendment would, therefore pave way for the removal of inherent contradıruois, between these two parts of the Indian Constitution and if need b. fundamental rights will be made to sub ere the sentiments of directive prinriples As a corollary of this it was alss argued that the concept of private property should be related to social utility, that old concepts must change in a progressive and dynamic society Villions of backward people of India desene more protection than a few privileged having entrenched vested interests in property and courts must take in to consideration all these facts while giving decisions on the issues of fundamental rights re the scope and extent of the fundamental rights should be in tune with the nocessities of a socialistic pattern of society and welfare state The question of relative importance of directive principles and fundamental rights also came in forefront and assumed great constitutional and political importance The supporters of this amendment justified it on the plea that without it the ideals of Directive Principles will not be translated into action while the opponents of this amendment put forward the arguments that unenforceable directive principles cannot and should noc over ride the provisions of enforceable Fundamental Rights Conmenting on this point Dr NC Chaterzi said in the Lok Sabha on 11th Aprile 1935 . The purpose of this Fundamental Rights Chapter was that no matter what majority you hav there are certaia forbidden sectors on which you will never tres pass The puspose of Fundamental rights us that certain legal principles should be established beyond the reach of the Parlia ment and the executive, to be applied by the courts of law- You cannot enforce Directive Principles Our Constitution says expressly that they are non justiciable-- There lies the main difference between Fundamental Rights and l'irective Principles --these Fundamental Rights were made to withdraw certain items from the reach of political controversy, and to provide certain essential safeguards which are regarded as sachet 181 ·( 84 ) In opposition to such views on the value of Directive Principles in relation to Fundamental Rights Pr Nehru said upholding the superiority of Directie Principles on 14th March 1955 in Lok Sabha I would like to draw the attention of the House to some thing that it is not adequately stressed either in Parliament or in the country We stress greatly and argue in courts of law about the fundamental rights Rightly so but there is such a thing also as the Directive Principles of the constitution Lven at the cost of repeating them I wish to read them out (The Promemimper refer red here to Articles 37 38 and 39 of the construtron) These are as the constitution say the fundamentals in the governance of the country Now I should like the House to consider how you give effect to these principles of the argument which is often being used even if I may say so with all respect by the Supreme Court 1$ adhered to, You cannot You may say you must accept the Supreme Courts interpretation of the constitu ion They are wiser than we are in interpreting things But I say, then if that is correct there is an inherent contradiction m the constitution between the fundamental rights and the Directive Principles of State Policy Therefore, again it is upto this Parliament to remove that contradiction ind to make the fundamental rights sub sere the Directive Prirciples of State Policy A number of other political leaders also gave their views on this iss de Shri Pataskar who was at that time Minister in the Ministry of Law said in the Lok Sabha on 14th March 1955 that * it was not a correct procedure to try to construe (as according to hu, the Supreme Court of India had done) the Indian Constitution on the basis of the words and phrases which occur in the Constitution of Australia Canada or the United States of Ame rica, as these constitutions were meant for being useful to different countries for the solution of their own different problems 193 He held that the provisions of our constitution should be in cerpreted in the light of Clause 5th of the Objectnes Resolution tri animously adopted by our Constituent Assembly on 22nd January 1917 the Preambl of our Constitution and the Directive Princi ples of State Policy as embodied in Part IV of the Constitution He further observed The most important provision in this connec tion ws Article 38 (of the Constitution) which lays down that the 139 ·1 ( 85 ) State shall strie to promote the welfare of the people by establish ing a social order in which justice, social economic and political shall inform all the institutions of the natior al life Whatever is laid down in Articles 19, 31 and similar provisions (of the Consta tution) has to be interpreted in view of this policy of a welfare state If you do noi take any account of this thing and try to in terpret the Constitution the interpretation is bound to be incorrect Our Constrution is an independent piece of work not based on any particular Constitu ion but us framed on the historical background of our constituzional development and the particular neds of our country, in view of the goal which has been set before us That must be taken into account for its proper interpretation There is no point in arguing about the sanctity of property If there is any interpretation by which the progress of the country is going to be held up, such an amendment (ie the proposed Fourth' Constitution. Amendment Bill) is the only solution То argue that by this amendment we are trying to take away the authority of the courts is not correct We are trying to restore what the Constitution makers really intended In our opinion the present Arıcles are erough for the purpose for which they are intended But on account of the interpretation of the Courts 1 has become necessary to bring forward this legislation. It should be more appropriate to hold that our Constitucion makers trusted the legislatures to protect the rights of citizens as the people of Great Britain trust their Parliament to protect (the) people s pro perty The intention of the framers of the Constitution can not be allowed to be negatied or hampered by incorrect interpre tation" 34 Speaking on the same point and expressing simular views Shri Govind Vallabh Pant then Minister of Home Affairs sa d in Rajya Sabha on 17th March 1955 "Our Constitution enshrines the main purpose and objective of our national policy Our society is to be based on the twin pillars of social and economic justice The Preamble embodies the main objective for which the Parlia designed and intended to ſunclion It has, besides the Preamble the Directive Principles which in a way chalk out the road which will lead to the goal which has been defined in the Constitution The function of the Parliament most ment us ·( 86 ) important It has unlimited scope and it can if it so chooses and iſ circumstances so require, make far reaching changes in the Cons titution But when there is a conflict be ween the main cen tral objective of our social reconstruction policy, the Fundamental l'aghts, the Directue Principles and Parliamentary legislation on the one hand and the decisions of the Supreme Court on the other some way has to be found out to establish harmony between all these The cour e of legislation during the last few years has revealed defects in Article 31 of our Constitution It is with a view to curing that effect that this Bill has been placed before this House' 136 Commenting further on the importance and signifi cance of Aracle 31 which is the subject matter for discussion in this Chapter, Shri GB Pant said Article 31 is concerned with a vital matter The original clause in the Draft Constituuon was I think Clause 24 That by itself was the subject of a prolon ged controversy and some of us happend to be concerned with that controversy even then Some basic fundamentals were accep ted and are accepted even today There are different purposes for which properties have to be acquired Social legislation affecting the community in general or large sections of it stands on a different footing and it has to be viewed from a different angle It is there that Article 31 comes in It was by itself a sort of a compromise Article That Article however, laid down that compensation would be paid for acquisition but the quantum of it or the principles and the manner in which or in accordance with which such compensation was to be given should be deter mined by Parliament It was then the view of very eminent jurists lıke Shri Alladı krishnastvamı Ayyar and also others that the Parliament would be the final authority in the matter But the hopes have been belied It has been found that the courts did not agree with the interpretation which the authors of the Consti tution thought it bore and it would convey They have construed the Article differently 136 Expre sing his surprise about the decisions of the Courts regar ding property rights under Article 31 he further commented Many things have happened which were altogetherer beyond the range of imagination of the authors of the Constitution been found that the guarantees that they had given has been inter It has ·[ 87 ] preted in a manner which comes in the way of socuri legislation and which does not allow even very modest steps to be taken in the direction of social welfare We have decided to work for a welfare state of a socialistic pattern in our country, well, that may call for big changes We do recognise private rights even in property But it should not be forgotten that all private rights in property are the creatures of society Such rights exist because the State is able to maintain order and to follow certain policies Even if one were to say that compensation should be deterınıned by the market value, the State could always order things in such a way that the value miglit almost be diminished and reduced to zaro 137 with it Concluding his arguments on the necessity of this amendinent Shri GB Pant said in the Rajya Sabha on 20th April, 1955 "It has been said that we should not tamper with the Constitution lightly But what we are doing by means of this amend ing Bull today is to rehabilitate the Constitution and not to tamperi The spirit of the Constitution the intention of the auth ors should prevail and where the language had been found defective or ambiguous it should be adjusted and revised so that the actual purpose for which the Constitution was framed and the intentions of the authors and the motives which actuated them may be fully borne out -- I should like to mention that the concept of private property 15 not a static one it has been changing from time to time in the good or bad old days slaves were regarded as private property Some time ago even women were treated as such But the concept of private property has been changing ---One can early say that private property is creature of the State---The need for thu amendment arose out of the interpretations placed on this clause by the highest tribunal in this land in a series of ca es which arose on this particular clause-----in Bela Banery es case-------It is impossible to carry out any measure of social legislation of the inarket value for the property acquired 19 to be paid especially when large schemes of social reforms are to be launched whicn we hope to in the course of the next few years No State can afford to pay the money equn alent of the property that will be acquired for the benefit of the poorer sec ions of the community in this land-It has, therefore to be ·( 88 ) accepted that an amendment of Article 31 (2) has become unayoi dable 139 Through these words Shri Punt refuted the charge that Govt is tampering with the constitution llc defended thus amend ment for the necessity for establishing Welfare State Speaking the on use of compensation for the aquired property latc Pt Nehru also emphasized that full cotnpensation is neither possibleffor a poor state like Indn to give nor it should be given on the matter of principles because according to him under the promisions of Direc tive Principles State has to establish a new type of social order and provding the full compensation according to the decision of the Supreme Court will not establish the desired structure of society where justice social, economic and political shall inform all the institutions of national life and where cconomic concentration dons not take place for the common detriment and where ownership and control of the malerial resources is distrbuled for the common gord etc He said on 14th March, 1955 in Lok Sabha. In the case of normal land acquisition the normal lawe prevail and the normal full com parisation is ger n but wh re all the all cts a mich la ger sphere the social sphere then we have provided differently If we are aiming as I hope we are aiming and we repeatedly say aiming changes in the social structure, then incvitably you cannot think in terms of giving what 15 called full compensation Why? Well, firstly because you cannot do it Secondly because it would be impropei to do it unjust to do at and it should not be done even if you can do it for the simple reason that all these social matters laws etc are aiming to bring about a c stain stru ture of sonicty different from what it is at present In that different structure among the other things that will change is this--the big difference between the 'haves and the "have-nots Now if we are giving full compensation well, the haves' remain the 'haves and the "have nots 'have-nots, it does not change in shape or form of compensation takes place There fore, in any scheme of social engineering if I may say so you can not give full compensation, apart from the other patent fact that you are not in a position nobody has the resources to give it--- We do want to give compensation and we intend to, as we have been doing you have to think not only of the type of pro perty but the history behind it the social consequences behind it we are at ·and no That is | 89 ] The and all that kind of thing in determining the compensation object is not to expropriate the obect is not to injure anybody the object is a positive object to bring about a social change for the benefit of the largest number of people doing the least injury to any group or class Now in a matter of this kind therefore where you have to consider all these factors political, social economic, I submit that the judiciary is not the competent autho- Tity Pt Nehru had cleared much earlier the position regarding the Zamindarı abolition and the opposition of the courts in rela tion to these progressive legislation When speaking in 1949 on the Amendment to Article 24 of the Draft, of the Constituent Assembly New Delhi September 10 1949 he said The land question may be settled in a different manner altogether The policy of the abolition of big estates is not a new policy but one that was laid down by the National Congress years ago legal subtlery, no change is going to come in our way quite clear Within limits, no judge and no supreme court will be allowed to constitute themselves into a third chamber 140 The sum and substance of these speeches and arguments is that the fourth amendment of our Constitution as well as similar other amendments were urgently necessary to create in India the socialist pattern of society and to realize the ideals of a welfare state in the country Secondly this amendment was in accordance with the real wishes of the authors of the Constitution This amendment did not tamper with the constitution but rather at rehabilitated and strengthened at Thirdly this amendment was to remove inherent contradiction in the Constitution between the Fundamental Rights and Directive Principles of State Policy and that the concept of private property itself must change in a dyna mic and progressise society and fourthly if some articles of Fundamental Rights come in the way of realization of the ideals of Directre Principles the former may be suitably amended so as to up-hold the superiority of Directive Principles for the realization of ideal of selfare and egalitarian society Fıſthly the interpretation of the constitution should be done in relation to the history and ideals of struggle of freedom So far the first point is concer ed encugh material has been provided in previous chapters that our ·[90] constitution u sccialı tic inspiration On the floor of tlic consti fucnt Assembly a ell assurances were given by Dr Ambedkar that socialistic principles lave Icen incorporated in the Directive Frinciples and ro goserrirent can afford to neglect them Regarding econd funt that thus amendment was in accordance with the wishes of the frarrers of ic constitutun the abosc quoted abstracts from thic speeches of Pt Nehru and Shin GB Pant it is quite clear thieven in the constituert A sembly and in parlia ment 11 ans pointed out that in future 7amındari will be abolished this C Was frrirally accepted in the lur darrental Rights Resolution accepted by AICC in 1931 in its famous harachi Resolution However, this point was disputed by Dr BR Am bedlar in the course of lus speech in the Raj) ? Sablia on 19th March 19.5 that he ud lus rufung Corrmittee of the Consti trent Assembly could take no r ponsibility whatsoever for Article 31 of the Constitution and pointed out that Congress party in the Constituent Assembly was 'so desided uathin itself that we did not know what to put and what not to put that there were three sections in the Congress party and that one section led by Sardar Vallabhbhai Patel stood for full compensation full compensation in the sense in which full compensation is paid at market price plus fifteen percent solatium 111 'According to him the second group led by Shri Janaharlal Nehru was against the payment of compensation for abolition of Zamindari and other big estates However in the end a compromise formula was accepted that compensation would be given 11 courts will be kept out so far the reason ability of the quantum of compensation is concerned Dr Ambedkar pointed out in Rajya Sabha on 19th March 1955 that even Shri Pant had also previous y admitted in the course of his speech in the Rajya Sabha on 17th March 1955 that the original clause 24 of the Draft Constitution which later on became Article 31 of the Constitution had had been the subject of a prolonged controversy and it was by itself a sort of 1 compronuse Article Therefore it is difficult to agree fully with the contention that the change made by this amendment of the constitution was in accordance with the intention of the authors of the Consti tution As a reply of this argument of Dr Ambedkır it is submit ted that the original compromise on the quantum of compensation ·[ 91] and at being accepted that compensation will be paid but this matter will finally remain in the hands of parliament proves that in the matter of Zamındari abolition no litigati01 a id interference of the courts will be tolerated It is further submitted that the original clause of article 31 regarding compensation was based on the agreement of the majority of the members of the congress party in the constituent Assembly otherwise this article could not be described as a compromise article, the important point in this regard is that nobody can dispute the fact that this compromise article was not according to the wish s of the majority Once there was a compromise on this issue there was no question of any division of opin10? H-nre it is safe to conclude that after the compromise formula the ori inal artırie 31 was supported by the majority and hence Dr Ankars arzu n at does not seen to hold much weight Fu ther to prove that what was the position in the constitutent Assomly when this particular article was under ducussion we may refer to the views of Pt Vehru in the constituent Assensly on September 10 1919 while moving an amendment to article 24 of the Draft constitution (corresponding to article 31 of the constitution) "We will honour our pledges Within lim ts no julge and no Supreme Court will be allowed to constitute themselves into a third chambar No supreme Court and no judiciary will sit in judgment over the sovereign will of Parlia mont which repre ents the will of the entire community but ultimately the fact remains that the legislature must be sup reme and must not be interefered with by the courts of the law in measures of social reform 142 These lines say in very clear cut terms that in the pro ramme of abolition of Zamındarı and other big estates on land the interference of the courts will not be tolera ted and that is why fearing that such interference may come in future and actually create obstacles in such programmes original article 31 was worded in such a way that courts may not interfere So far this position is concerned there can not be any dipute But inspite of that courts entertained cases on the issue of compensation and declared many acts void passed by various state legislatures Thus the acceptance of this compromise formula by the majority of the congress party in the constituent Assembly proves that the arguments that this was not supported by the majority 15 proved ·192 Wrong Hence the original article 31, before the fourth amend ment of the cunstitution was according to the wishes of the fra mers of the constitution but courts put a different interpretation on that article therefore it is justified to conclude that this amend ment was necessary to make the wishes of the framers of the con stitution, to prevail This actually was intended by this arend ment and this is evidenced by the speeches of Pt Nehru, Shri GB Pant and Shri HV Pataskar which have been referred to in this chapter Regardtng next point that concept of private property is a dynamic one and fundamental rights should be adjusted to the needs of the society it is submitted that even ex chief justice (Gajendra Gadkar) of India also supports the view that amend ments & changes in fundamental rights are justified in the interest of socio economic reorganization of the societv The pri ciples of a new, class-less society are incorporated in the Directive Principles Hence, if need be Fundamental Rights can be justifiably amended in the interest of new social and economic circumstances as envis aged in the provisions of Duective Principles I shall illustrate this approach by indicating briefly how the Constitutional amend ments made from time to time have sought to find a solution to the problems raised by the fundamental rights My point in mentioning some of these amendments is to ullustrate my thesis that in seeking to achieve socio-economic justice democracy and the rule of law can not treat any proposition as absolute and any If provision as infallible and beyond the pale of modification experience shows that some change has to be made democracy and the rule of law do not hesitate to make the change because it is the very essence of sociological jurisprudence that like lıfe, law itself must benefit by experience 143 In essence similar Views were expressed by the other defenders of this amendment The l'undamental Rights even in the chapter III have been limited and conditioned in scope by number of clauses and sub clau e either in the interest of the State back ward section of the community, and Scheduled castes and minorities ples is extended to its logical conclusion there is no reason why should they not (Fundamental Rights) be further limited in the If this princi ·[ 93 ] interest of the general conmunity and for the upliftment of hisans and Labours as directed in the contents of Directive Principles In short the entire conrept of Fundamental Rights and specially that of property rights should have social utility and be social sert ice oniented In other words Fundamental Rights can justi fibly be conditioned in the context of the demands of the contents of the chapter of Directive Principles of a community of equals is to be established which is the elaboration of the ideal of thejustice, economic social and political In economic field justice means equal distribution of wealth in social field it means that people belonging to different communities and castes should have equal Tights and none of them should have special privileges In the political field one man should be as important as the other with out any distinction in choosing the government and with the help of the money and wealth democracy may not be either influenced or purchased Summing up it can be said that the provisions of our Con stitution should be held be interpreted in the light of Clause 5th of the Objectives Resolution the 'Preamble of our constitution and the Directive Principles of State Policy ·we are 6 The Importance of Preamble as aid in the understanding and interpretation of the Constitution Our Constitution is very detailed one ind has been framed on the basis of the principles of many trading constitutions of the world such as that of USA Pngland Ireland etc Although great efforts were made to harmonise the principles of thest. various Constitutions into one yet occasionally contradictory cle ments come to the surfacc However at present as concerned with the contradiction between Chapter III and IV of the Constitution it is worth while to see how the study of the Preamble can help in the removal of this contradiction and uphold the greater importance of Directive Principles in relation to contradictory and conlictin elem nts of I undamental Rights Commenting on the importanca of the Preamble our Consta tution Pt Thakur Das Bhargava said in the Constitution Assembly on the 18 November 1919 "The Preamble is the most precious part of the Constitution It is the soul of the Cons titution It is a key to the Constitution It is a proper yardstick with which one can insure the worth of the Constitution All the 395 Articles of the Constitution have to b m asured with the yardstock of the Preamble and such provisions as st in the test of the Preamble are good and other should be taken as worth less 144 Preambe express the stance of the Articles of the Constitution in realation to the broad sentiments of the aims and aspirations for which the Constitutto a has been framed It gives us a clue of the direction although not of all details in which the Constitution has to more Acrorliny to Mit vell a leading authority on the interpr tation of Constitutions "The Preamble of a statute has been said to be a good means of finding out its maining and as it were a k v to the understanding to it and as it usually states or profe ses to state the general object and intention of the letistatire i pis 11 the enactment it may legitimately be con ilt ito solve arv 1 ni aty 145 En715777 the impor tance of the Prein ble in th understan lins of th Con itution Justice Story has said 'The Importance of examining the Pream ble for the purpose of crno inding the language of a Statute ·( 95 ) has been ong felt and unnersally concedid in all juridical di cus 310ns It is an admitted maxim in the ordinary course of the administration of justice that the Freamble of a statute 1$ 7 bey to open the mind of the makers as to the mischiefs which are to be remedied and the objects which are to be accomplished There does not seem any rea on w 17 fi ndan cntal law or Constitution of Government an equal attention should not be given to the intention of the framers as stated in the Preamble' 140 On the importance of preamble in the understanding of a statute or a Constitution Basu Durgadas cites many examples and says 'The proper function of a preamble as 10 explain certain facts which are necessary to be explained before the enactments contained in the Act can be understood In hort 1 court may look into the object and policy of the Act as reculed in the Preamble when " doubt arises in its mind as to whesher the narrower on the more liberal interpretation ought to be placed the preamble of our Constitution serves two purposes (a) it indicales the source from wluch the con trution derives its authority (1) it also stales the objects which the constitution seeks to e tablish and promote :47 From the above quoted sentences it is clear that Ircam ble can be used to judge whether a liberal interpretation is war ranted or not Secondly through its study the objects whsch the constitution eeks to fullfill can be fi und out From these it is also clear that reference to Preamble should be made in case of doubt and ambiguity and by inference it is also clear that adequate atten tion should be given to the intentions of the framers of the Consti tution because it is expected that tle intentions of the framers of the constitution will be incorporated in the preamble It is well known fact that the preamble of oui constitution substantially has been taken from the Article 5th of the 'Objectives Resolution which 13 moved in the Constituent Assembly by Lite Pt Jawa harlal Nehri on 13th December 1946 This means that the Objectives Resolution and the Peeamble stand and aspirations and it will be quite logical to deduce that the aims of the Freamble' are same as were explained for the 'Objec cives Resolution when it was moved in the Constttuent Assembly The important point which us to be kept in mind is that Olyjec tives Resolution contained the objectives for which Constitution Or sane ans ·[96] was to be made and these objectives were incorporated in th- Preamble of our Constitution Therefore, it can be said that if one hns to know the objectives for which our Constitution was framed a reference to the Preamble should be made It will be worth while to see and note what was expressed by late Pt Nehru when he moved the 'Objectile Resolution in the Constituent Assembly He referred to it as a High Adventure of giving shape in the prin ted and written words to a nation : dreams and aspirations He described it not merely a Resolution but a Declaration and a Pledge to the Nation and he requested the flouse to consider that Resolution not in the spirit of narrow legal wording but rather to look at the spirit behind the resolution He said "In this resolution which the House knows has been drafted with exceeding care we have tried to avoid saying too much or too little This resolu won therefore steers between these two extremes and lays down certain Fundamentals only We have done something much more than using the word We have given the content of dcmo cracy in this resolution and not only the content of democracy but the content if I may say so of economic democracy Well I stand for socialism and that India will go towards the Constitu tion of a Socialist State and I do believe the world will have to go that way Only in one sense it (Odjectives Resolution) limits our work le we adhere to certain fundamental propo sitions no body challenges them but if any body should challenge them well we shall accept the challenge and hold our position but I wish to say that whatever the legal aspects of the thing might be there are moments when law is very feeble reed to rely upon when we have to deal with a nation full of pas sion and freedom 148 From the above quoted extract of the speech of late Pt Nehru at the time of moving the Objectives Resolution in the Constituent Assembly it is clear that he emphasized beyond doubt that we stand for certain l'undamental propositions and also emphasized the hope that India will make a Constiution on Socialist lines and not only India but the whole word may have to do it He further said that we stand to accept any challenge from any body for defending our Fundamen tal propositions, The Fundamental Propositions were (if whole speech is read) democracy, sovereignty of Indian people econo- ·> [97 inic and social and political justice ele For him the cono'nu justice ment the acceptance of the principles of socialistic organi ition of society lle expressa with full emphras thar ir ins body challenge these fundamenta's we shall hold to our position and accept the challery that is if ans atteinpt 11 tyle under whatever plea to negatise the efforts of them fundum ntals it will not be allowed In plain words it meant that we stand for soci Justic type of economic and oni organization Tourier the Objectives Resolution could not be pissed carly in the Constituent Assembly and there * 13 some delay, so Shri Tehru main spokr on its importance ind urgency on 22 January, 1917 "llos fony are we to wait? And if we sons of us a long tre mnd e prospin Tous can afford to wait what about the waitinz of the hungry and the starving This resolution it brinn* promism of freedom u brings the promise of food and opportumly to 111 "1* Thus hic quite clearly expresses that the ains and aspiration of thuis resolurion is to bring i 171 opportunity to ni! 11. furth said in the same speech But tıkın3 tt 15 8 wliole u is a resolution which lias already seccived th- full assant of this loogse and I hope that thus Resolution will lead unto 1 Constitution on the lenos suggeste 3 by this Rosolut191 I trust the Constitution 1111 lead us to the real freedom that we have clamoured for and that reil freedom in tum will bring food to our starting millions clothing for thon housing for choti and all rinnor of opportuni ties for progress 150 The abolition of Zumindari as a progrı mm. for providing food for million and taking of mi n111rd mills in the interest of consum r and labour class ille construc tion of cheap houses by the West B ngal Govt for refugees on the land acquired from Bela Bann* jse and others and the cases brought bufore the courts for decisions on these points and issues and th- decisions of the Courts against the interest of such pro grannas in th* d-ſenre of some fundam ntal Rights should be new Tintir context of above expressed sentiments and then alone one can feel that much wrong was sought to be done by the deſence of cert un lundainºntal rights The above quoted lines can them selves throw enough light on the Oy lives of this Rolution all manner of opportuntics, food for millions staru ing clothing and housing for them 181 1 ·[ 98 ) Now we focus our attention to the text of the 'Objectives Resolu tion and the 'Preimblr of the Indian Constitution The articles 5th and 6th of the 'Objectives Resolution' are very important Arti cle 5th reads wherein shall be guara itsed and secured to all the people of India Justice Social, Lconomu ani Political Equality of status of opportunity and before the lan, freedom of thought expression belief faith worship vocation, association and action ubject to law and public morality And article 6th reads "wherein adequate safeguards shall be provided for minorities backward and tribal areas and depressed and other backward classes 182 These two articles form the core of our Rights and have been in corporated in the Preimble of our Constitution Some of these specially those of political nature such as right to equality before rights slaw, right of freedom of speech thought, expression belief and faith worship, vocation and 2 cialion of minorities etc have been included in the Part III tha is Fruimental Rights chapter and have bern made justiciable Simila some of the social rights have also been include in chapter III such as equality of status and accessibility to various public places welis tanks, restaurants and hotels abolition of untouchability abolition of titles etc Mostly political rights in Chapter III have been condı tioned in the interest of backward and scheduled castes according to the provisions of Article 6th of the Objectives Resolution It is one of the accepted scheme of our Constitution that backward and down tiodden are to be elevated and provisians have been made fr this aim both in Fundamental Rights Chapter and Directie Principles as for example 15 (1) and (2) 15 (4) 16 (3) 19(5) etc and article 46 of the Directive Principles Now the words of Article 5th of the 'Objectives Resolution wherein shall be guaranted and secured to all the people of India Justice Social, Economic and Political This means the securing and providing of the conditions of economic and social justice has been guaranteed by the Constituent Assembly a Sovereign body by the unanimous acceptance of the Objectives Resolution Mostly, the provisions through which these guaran tees of economic justice are to be realized and fulfilled, have been included in the Directive Principles Now the argument is that if on the plea of non justiciability of Directive Principles, the process are ·[ 99 ) of the realization of the Conditions and circumstances of the economic and social justice is blocked in the defence of justiciable rights of Fundamental Rights chapter how the solemn promisc and guarantees given by the Constituent Assembly can be fulfilled? After passing the Obj-ctives Resolution the Constituent Assembly as a Sovereign body representing the will of Indian people took a pledge to provide for the conditions of economic justice The con cept of economic justice definitely has socialistic elements so far our political philosophy is concerned and for Pt Nehru the mover of this resolution it could not be anything but pure and simple socialistic in aspiration as has been established through our enquiry on the background of our political struggle in one of the previous chapters and the speeches of Pt Nehru at the time of introducing Objectives Resolution Economic justice in this context means the equalization of wealth and not its concentration in the hands of few people for the common deteriment It could not mean 'laissez faire or the economic justice and liberty of Nineteenth centuary free enterprise ideal Pt Nehru had said that rich and privileged will have to be deprive of their vested interests for the common good The process of equalization of wealth means upliftment of the poorer section of the community and the dilution of the concentration of economic power Through the following lines the position regarding agrarian reforms and such other programmes is clear "But the fact remains that when you change a social system or an agrarian system, the burden must fall on somebody 159 Through the unanimous acceptance of the Objectives Resolution by the Constituent Assem bly it is quite obvious that this resolution became constitutionally, legally and morally the guiding star for the Constituent Assembly for framing the Constitution of India If the guarantees given on such explicit understanding for economic and social justice have to be materialized, then surely the provisions of Directive Principles will have to be given their due constitutional importance The Preamble also gives these guarantees in the name of the people of India WE THE PEOPLF OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DE VOCRATIC REPU BLIC and to secure to all its citizens JUSTICE Social Economic EQUALITY of status and of opportunits and Political - ·[100] One fails to understand how such categorical guararltecs should not be fulfilled and obstacles created in their realiza tian? It will be patently unconstitutional to put and tolerate any bstacle under hatever plea and under whatsoever argument in the realization and fulfilment of these guarantees even in the def ence of conflicting Fundamental Rights It may be charged here that more emphasis is being given to economic and social justice and not so much to political justice they and political rights This is due to the fact that when India be-came free bulk of political rights were provided to ļts citizens had been achieved Political justice means one man one votc It also means that every goveşnment shall be on the anvil both in its daily affairs and also at the end of certain period when the voters and elector ates will be given an opportunity to assess the work done by the Government These conditions exist normally in India and have lveen in existence since the Constitution became operative People can crıtısıze the Government in the Parliament and outside and llections are held regularly Emphasizing the greater importance of Economic and Social ri, ht$ Dr Ambedkar sud in the Constit uent Assembly on 25th November 1949 that on the 26th January, 1950 we are going to enter into a life of contradictions In political life we will have equality and in social and economic life we will have inequality In politics we will be ecognizing the principle of one man one yote and one vote oc value social and aconomic life we shall, by reason of our social and conomic structure continue to deny th. principle of one man oie value How long shall we continue to lie this life of contradic How long shall we continue to deny cquality in our social and c onomic life? He further said But the e can be no gainsay ing that political po vr in this country has too loz been the mon opoly of a fun and the many are I only b asts of burden This monopoly has not merely deprı ned them of their chance of butter nent it hus sapp'd hat may b called the sight ficanci ailiit "The aw trodden classes are tired of being go vcrued Thus urge for sell realisatiot in the downtrodden clases must not be allowed to dmclop into a class struggle or class » ur lui These lines point out that why more emphasis has been laid on social and economie rights and less on political rights In our tions > ·[[ 5101 ] Spraking on the impa tance of social and economic nghits and their organic relation with directive principles Dr Ambedkar further maintained in the Constituent Assembly "while we have established political democracy, it is also the desire that we should lay down an ideal before those who would be forming the Govern ment That ideal is economic democracy "188 Dr Ambedkar further said emphasizing the relation bet veen the ideal of economic democracy and Directive Principles "It is therefore rio usc saying that the directive principles have ho valus In my judrment the directive principles have a great value, for they lay down that our ideal is economic democracy Because we did not wafıt merely a parliamentary form of Government to be instituted throu, h the various mechanisms provided in the Constitution Without any direction as to what our economic ideal as to what our social orir ought to be we deliberately included the Directve Principles in our Constitution I think if the friends who are agitated over this question bear in mind what I have said just now that our object in framing this constitution really two fold (1) to lay do vn the form of pohtical democracy and (11) to lay down that our ideal y economic democracy and also to prescribe that every Government whatever it is in power, shall strue to bring about economic democracy, much of the mis understanding under which most members are labouring will dis appear 156 From these rernarks and assurances of Dr Ambedkar it is celar that the framers of our Constitution have put the ideals of econ nc d mo racy and econo nic justice in the Directive Principles If the pro risions of Dır ctive Principles are negatied the guarantees of economic justice are negatived These guarantees of economicʻju tic have baan provided by the unanimo is accept ance of the Objectives Resylution by the Con tituent As embly a sovereign body representing the combined will of the nation and leave been further confirmed by the language of the Preamble that is the people of India are under solemn pledge to the ideals of economic justice and economic justice is to be realized through the Directive Principles Any move to oppose the realization of guar. antees of economic justice to be achieved through the implementa tion of the Directive Principles should be con dered broadly speaking unconstitutional ·( 102 ) Commenting on the importance of referring to Preamble Justice Story further says It is properly resorted to where doubts or ambiguities arise upon the words of eacting parts for if they are clear and unambiguous there seems little room for interpreta tion except in case leading to an obvious absurdity or to a direct over throw to the intention expressed in the Preambie "167 Manv concerning decisions of the courts to which we have referred to previously have the effect of almost overthrowing the intention expressed in the Preamble There is a consensus of opinion among the leading authorities on the interpretation of the Constitution that reference may be made to Preamble in case of doubt and ambiguity In our Constitution there is definitely much confusion and doubt about the position of Fundamental Rights vis a vis Directive Principles It has contra dictory elements as for example according to Article 32 (1) of our Constitution the right to move to Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guarantee 1 This is one guarantee Th Article 37 of Directive Principles says "The Provisions conta i un this part shall not be enforc able by any court but th“ principles laid down are nevertheless fundan atıl in thgoi ruinre of the country and it shall bath duty of the Stete to apply these principles in making laws' This is second guarantee and that too a Constitu tional one To solve such ambiguity and contradictions about guarantees Preamble should b used as an aid for correct right and balanced understanding If w. note carefully the words of the Preumble of our Constitution to solve confusion about the rela tive value of Fundamental Rights and Directive Principles the lat ter dealing mainly with economic and soeial rights Justice-Social Economic & Political it can be observed that the first and fore most importance has been given to 'social then second to econo mic and then in the last to the word 'political justice Thus it is clear that economic and social justice have been given priorits over political justice otherwise this particular sequence of these three words becomes meaningless On this argument if it is accep ted that in the Preambe of our Constitution Social and Economic Justice has been given prior and greater claims over those of politi cal justice because the latter had already b en realized to a great extent the superiority of Directive Principles through which these ·in ( 103 ) prior claims of economic and social justice are to be realized is automatically established over Fundamental Rights Chapter which mostly contains political rights The Indian courts have also accepted the principlest hat reference can be made to the Preamble for ascertaining and elu cidating certain controversial points as for example in the case of A Gopalan Vs State of Madras it was muintained by the court *T} cre can be no doubt that the people of India have in crercise of their sovereign will as expressed in preamble adopted demo cratic ideals and resered to them clves certain funda mental rights and I agree thut in construing these prosisions the high purpose and spirit of the Preamble as well as the Cons. atutional significance should be born in mind '106 Rok in this regard a very important point asises The courts have referred to the Preamble in relation to the importance of the Fundamental Rights but it has not referred with same emphasis to the Preamble relation to the economic and socnl rights and to Directive Principles although in the same preamble the guarantees of economic justice and cconomic rights have also been given 100 This clearly shows that there has been less an areness of the truc constitutional significance of the Directie Princa ples and our aim is to create a positive constitutional awareness regarding them The aim of this book is not onls to create posi tive awareness of the importance of Directive Principles merely on poinical or moral grounds, for carrying out the historical evolution of our political thought and our political struggle to fruition but on constitutional and legal grounds as well On the authority of the views of many important writers such as Maxwell, Justice story etc we have maintained previously that reference should be made to the Preamble and to the intentions of the authors for solving any controversy On such reference we find that the Objectives Resolution and 'I'reamble give guarantees of economnic justice and the claim of economic justice is more than that of political rights This will be clear from the sequence of the words used in the text of the Preamble first word regarding rights is JUSTICE, with the word 'Justice also in the order the first word 'social' then, next "economic and lant “political After 'JUSTICE come other political rights. LS in the ·[104 1] LIBERTY then „EQUALITY etc. The ideal of economic and social justice is, to bę realized through Directie Principles and hence Directive Principles have more Constitutional and legal importance and this should not and can not be ignored This conclusion is borne out by our previous arguments that what has been the intention of the mover of the Objectives Resolution in the Constituent Assembly and the same has becn accepted throurh the Preamble in the name of Sovereign will of the people of India and thus Directive Principles have theit established legal an! constitutional importance For the interpretation of the various Articles of the Constitution a reference has to be made to them and a balanced decision should be gren keeping in vi*w the over all situation, both of Fundamental rights and Directive Prın ciples It is constitutionally and legally improper to give Directive Principles an inferior status If such views were upheld and acc epted by the courts there would have been no need to amend the constitution as it has been done as a consequence of the decisions of the courts upholding the superiority of the fundamental Rights over Directive Principles 100 Through these various amendments of the constitution such a situation has been created so as to establish the supr. nary of the Directive Principles to bring about the conditions of Sorial and Economic justice and many Articles of Fundamental Rights Chapter have bøen diluted in force and many clauses has been deleted altogether as for example the amended Article 31 (a) and 31 (6) have reduced the interfering power of the articles of Fondimental Right Chapter in the real zation of the ideals of the provisions of Directive Principles 'The Article 31 (B) which reads. Without prejudice to the generality of the provisions contained in Article 31 (A) none of the Acts and Regulations specified in the Ninth Schedule por any provision thercof shall be deemed to be sold or ever to have become void on the grounds that such Act Regulation or Provision is inconsis tent with or tiles away or abridges any of the rights conferred bu any provisions of this part and notwithstanding any judgment decree or order of any court or tribunal to the contrary rach of the said Acts and Regulation shall subject to the power of any competent legislature so repeal or amend it continue in force 1 6 2 Through this amendment the obstructug article of Fundamental ·[ 105 ] Rights Chapter which arc opposed to the realization of economic justice have been put in an inferior place and finally the supre macy of the legislature has been also establishci regarding the economic and social progrımnies which the state has to follow Thus the utlımate sayin' thy inatter has been left to the legislatures and not to the courts 162 In fact when the Constitution became operative it was expected that the courts will take into consideration the due practical, and constitutional importance of Directive Principles and will give a direction to the Constitution consistent with the aims and aspirations for which the struggle for freedom was fought, that is for the removal of the poverty of the masses and the upliftment of the backward classes through the process of equalization of wealth and the avoidance of the concentration of economic power in few hands but the courts, contrary to the expectations of the authors of the Constitution gave more importance to the Fundamental Rights so much so that almost all thic schemes of social engineering as for example aboli tion of Zamındart and removal of other intermediaries from the and, nationalization of some services etc were challenged in the courts effectively The authors of the Constitution had given a clear picture about the use and the instrumentality of the Constitu tion but inspite of this the scheme of values was effectively chal lenged and attempts sere made to change and modify it Spcak ing on the issue of relatise position of economic and social incqua lity vis a vis political equality, and why there should be more emphasis on social and economic equality Dr Ambedkar said in the Constituent Assembly on 25th Nov 1949 le must not be content with mere political democracy We must begin by acknow jedging the fact that there is a complete absence of two things in the Indian Society One of them is equality on the social plant Welase in India a society based on the principle of graded in equality włuch means elevation for some and degradation for others. On the economic plane we have a society in which there are sunt ho have immense wealth as against many who live in ofyjact proscrty On the 26th Januır, 1950 we are going to enter into the life of contradiction in politics we will have cqualits and in tcial and economic life we will have inequality How long shall we continu to deny equality in our social and economnc ·[ 106 ) life ?1 63 This question is addressed to those who put obstacles in the way, of realization of economic and social justice by blocking the execution of Directive Principles Dr Ambedkar had given a Warning regarding the perils which will re ult of such inequalities are not removed We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assem bly has labouriously built up '184 Similar concern and anxiety was expressed by Pt Nehru and he also gave a sinular warning when courts gave decisions upholding the supremacy of l'unda mental Rights when state took steps for agrarian reforms and special encouragement for the backward and the poorer sections of the community But I would like to put it to them and to others that their security ultimately lies in a stable economic system and not in the law courts or in anything e se If there is no peace between them and the vast agrarian population they have no security That system cannot continue it does not matter what your Fundamental Rights might say what your Constitution might say or what your courts migl say If you refuse to see be yond these you will arrive at a revolutionary situation which will ignore all these things We have to consider the reality and re adjust ourselves put an end to the big Zamındari system reform our land system make it progressive and modernize it But the fact remains that when you change a social system or an agrarian system the burden must fall on somebody Thus assessing and reviewing all the previous arguments given above it is re affirmed that if the economic and social justice for which constitutional guarantee has been given by the solemn unanimous acceptance of the Objectives Resolution by the Consti tuent Assembly and which has been further confirmed by the language of the Preamble of the Constitution on behalf of the uni ted people of India the Directive Principles have to be given a superior status over conflicting Fundamental Rights otherwise these pledges and guarantees given for economic and social justice will not be realized and to do any thing to block the realization of those ideals will be unconstitutional will be against the constitu tion will be against the constitutional objectives of national policies The importance of the provisions of Directive Principes 165

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·71 Political theory of Liberalism its Evolution and effect on lodian Constitution All Constitutions are the products of their own political philosophy and history Constitutions are the means to establish those institutions through which cherished ideals are to be realised and their value and worth should be measured by the extent to which they prove successful means for the tainment of desired aims Frequently enough our Constitution is understood and Interpreted on the basis of the principles of the Constitution of USA On the argument that it is a written one and has a chapter on Fundamental Rights in the form of Bill of Rights but the political philosophy and the forces of history behind the two 18 ignored The Constitution of USA is a product of its own background and of 18th 19th century political philosophy ours is a modern one, and is based on a political philosophy very much nearing to socialism in aspiration One is a constitution more or less of static nature in the sense that greater emphasis has been laid on statusquo ours is a dynamic one with more emphasis on the establishment of a new society and social order free from exploi tation where there will be econom c equality where economic con centration will not be permitted and where major services and industries will be socially owned One is the product of the econo inic theory of 121ssezſaire and free enterprise the other of con trolled and regulated econo ny It is very clear that the fun damentals of these two constitutions are very different The earlier phase of our constitutional and freedom strug le was very much influenced by the principle and ideals of early Liberalism and upto a particular stage there exists a parallelism between the history of Political Thought of European countries particularly Englan.) and that of ours primarily because Indias fate to a great extent was allied to that of England The philo sophy of Liberalism was spearheaded in Europe and England by a new class, the prosp rous middle class which had acquired infi trential position in the society due to the benefits of industrial revolution and large scale commerce The political ideals of this class included such Jiberties freedom of thought of expression and 166 ·( 109 ) of association, the security of property and freedom of trade and ocation These were to loc realized by the adoption of constitutions, and the institutions of the governments workin, under them con trolled in ulumaic analysis by representative legislatures respons blc to an cle-torale which should include as far as possible the cntirc adult popu ation These ideals and rights had been defended in the notre of inalienable 'Natural Rights and took their inspiratiens frem the political philosophy of French Resolution and Jolin Lo-kc, and were included in the American Declaration of Independence which later on produced American Constitution at Philadelphia Conicntion Although the political philosophy of fileralism as such continued on the whole for a considerable long prriod pre dominantly as the philosophy of middle class, lrut later on due to the increased enſranchisement and the apprerance of conscious working class thus had to be modified because the interests of other classes also had so te considered and respected Gradually Liberalısın from the philosophy of a particulır class became the plulosophy of the whole community Our carly freedom fighters were also influenced by the philnsophy of cariy 1 zberalism and 1ts ideals through western education The carly liberals in Ing land, on humanitarian grounds i ere opposed to exploitation and iniseries of the masses. Their political outlook was also tampered by religious considerations and sume is true of many of our early freedom fighters In India as in England there was a bourgeoise class wluch sprachended tliese concepts of liberties and freedoms and under their influence the Cmyrus was found by an English man Mr Humc and its activities were then concerned with mid dle and upper middle classes and Englislı eJucad sections of the population only Our liber ils also had no real contint with the masses and they agitated and criticized British Indian Government for their own advantages This class and their organization has been described by Lile Pt Nehru 18 Bourgeoise class and Lourgeoise organization The English educated class grew slowly in the cities and at the same time a new triddle class aiose consis ting of professional people eg Lawyers and Doctors and there were merchants the go between of British trade and industry I ley found the British Obstructing them in every path +

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·[111] in the freedom of producing and clling of goods and the freedom of contract between industrialists and labours unhampe red by any governmental interference This condition of Economic System was for them based on the simple principles of Natural Justice and Liberty and any interferene in this was considered by them interference in their fundamental rights of liberty free trade vocation and property etc They viewed their rights and their sanctity in this light In other words they believed in the creed that perfectly free exchange will produce automaticalls a system of natural justice That is the believed that complete frce dom of exchange either of goods or services produced automatı cally a natural harmony of interest which needs only to be let alone in order to produce as much economic advantage to every indu dual as circumstances permit (Defenders of fundamantal Rights of the Indian Constitution also hold mlar views and con sıder any interference by the state by way of amendments of these rights interference in their natural rights) But they ignored and could not foresee and comprehend the important principle that economic interests of the classes are opposed to each other The interest of the industrialists and employers is to give minimum possible amount in the form of wages which is quite oppo ed to the interest of Jabour is a class However so long labour lacked class consciousness free enterprisa economic system carried on but rapid industrialization and increase in democracy via increa $ed enfranchisement created a situation where the interest of labour and poor class s could not be ignored The clash of class intere produ es tension and conlict and to pro ride for this later liberals accepted the idol and principle of legislative coercion to produre a social harmony 168 the greatest good of the greatest number Thus due to the circumstances th cono nic ideals and political ideals of early liberal philo ophy cumº in conflict and it came to be realized that economics and politics are not mutually i ndependent from the point of view of utihtarianism for the greatest good of the g eatest number social harmony should be produced by legislative regulation'and coercion and from the punt of view of laissez faire economists harmony of economic interest and justice is produced by the al ance of legislative interference ·[114] I lour "110 Vills contribution was very significint in the sense 1 at any economic systein should not be basil merely on their rigid fiws but should be conditioned in the conuerunr of humanism that is they should take into account the happinrus and Inscries of human brinis m general hit song ideal wu hield by I ne It Jiw halal \rhiru ad throughout 1. platıcıl carrer he emplı mixed this aspect sliun anum or humanita jan co uide rain, him socials had mportance in this context alone Ixcruse he Indiried this socialism could produce ilir best poss bir erditions for hun in mellare 1 Thrse ideals of best p3331 bile conditions for human welfare mently have been included in ir Durrese Principles of stall policy of Indian Constitution For hun the value of lumin personality did not lay in the realms of treenplay cal thoughts but as something to be fcalised in the actual condition of free soci Afrxxl sociri) du cording to hun was onc dich opened ways in created o sportunities for satis fying life P't Achru and later liberis inaint uned that liberty 13 not only an indusdurl gonx but also a social fool that is india cull right and publi uulity are closely connected I hcsc 1013 are also supported by Justice (endradkar Vodern litxera lism draws its in pirition froin a presesire and comprehensac ethical plulos phy Its main postulate that indivulu al lite should shon preferenre for social oblin, slon 1. Istly Vills views about the finction of a liberal state in a fret societs are expressed in the ful owing words in which lie sales that ilic function of a liberal state is not nige but positive It cannot make its cit! zers free 1 erely by refraining is m levisi union ir slation should Te used for creating equalizing oportunities 173 All this in sul tance meant than the litx ralism as a political pluleophy tot 15 drofug towards a philcsophy that the conduions of the greatest good of greatest number should be rerl ed through legislative coercion and the rights of individuals hic to be regulated in the interest of community in general thus aspect of human persona lity and liberalism and the positive contribution of the State for the human welfare was further elalorated bs 1 | Green He belıcıed and maintained that any system which perpetuated tuman miseries and deprved them of the substancual slıure of the produce of the country "13 to be coidemned seriously, In Green ·( 115 ) writores are beliefs one finds a strong sense of moral injutlice of a FOCsely that withheld from large portion of its mem!»rs the fonds panty material but chucfl spritual which the culture of that JOCIC!I created Jull panicipation in the affairs of the society is i dei clopinent of human personality and to create the possibility of such participaron sus thin end of the liberal KOCKEN "In Indıı mum political lenders were injurnced by these deals of prorres ise biler ilum and they omplirsised their ir pritance in their own uns For Gandhujt the uplift of back ward and scheduled casses and semasal al untnuchability and other social and rennoinic barriers elc depended on rich huimanı tarian and bitxral idenis because these barriers presented a large numl»rt of people from sharing and participating in the affairs of the society and the produce of the country - Sinodaya' means general upliftment ror ( indhiji polical freedom and social upliment was one of the print stops for spiritual development, his ideals of sellase panchayats and panchas muraj and prohibi uion etc, have luren included in the directive principles 178 Dr Or Coyal 1173 drawn parallclum between the view of Gandhiji and I II Grren "The closest resemblance in western political thought to the concept of San odaya is thic 'common good deal of Professor TII Groen' 196 Fort Schru Also socialism meant service to the common man and concern for com mon good lle was (chruji) moved loy the museries of the hisans and tabourers and felt pangs of their miseries Hc writes "In 1920 I wis ignorant of lalur conditions in factories or fields and my public outlook was entirely bourgeoise I knew of course that there was terribic poverty and misery and I felt that the first aim, of politically free India must be to tackle this problem of poverty looking at them and their misery and overflowing gratitude I was filled with shame and sorrow-shamc at my own casy going and comfortable life and our petty politics of the city which ignored this vast multitude of semi nacked sons and daughters of India, sorrow at the degradation and overwhelming poverty of India A new picture of India scened to rec before me nacked, stanting, crushed, and utterly miserable 117 To end such situations in society Green postulated the idea of positive freedom, that u the state through legislation must create actual situations for the ·Ixenefit of the individuals Treelom mun tl mar it means not mear Is a legal but in noul pr stula), a fenuinely I created roner on the part of the individual to sharr in the sods wich a toxine) prelucru !** Virrels rumal Musly linlitr to the actual forts of tlır circinus inces has no meaninr the directe principles are the ins to creier this actual conditions of quality and their uport ince should li ci alunted in thu ernse) wine anle alır fi in of 151 ht of fire contract frrritom of trade and legal mushy lien actual conditam do tint mit int such riglit Trinn a'tirate is lcc 115 tretiplos n cul Cioen txclicca thu the standard for legislatim slould in the idea of general me it cannot be undos tunt li lone f1s 1 30cal self The concepts of liberty and foredlom shoul! Bai. Ixtli individual and *xul aspects 17Cindluji and I't clir also eigh wired this aspect althou, h in their own different llic mine sun tion of elic Gossi111 r! is not to abstain <r lxın tu utra! Lut to di sognr forse thun tonds incefoner al govxl the central cu of this pidulmeplay is thing self is as coal sell (indluji s ideal of sell as a sexual self is represent in furs advice to the rich people there the should nk themelues 19 Trusters of the perple Iccording to Tu (rcen Hilverun ene is ampoule recepe in 1 Focict #liesc as insuutos polaire conti nusis ropone pubbor ping n nd the icine of m Il justified coercion becau 11 net aldler forms faceruont which are less tu! rnbe Simul li Veliru pien Irland Iphoses in the parli unent for th stable amend Inents of the cu statuli in to put restri the 115 fund nlal Hiflus in the same tiff txeque ab erice (Coucuns on felment al rimbito corried in a serible accions fer the donn trodden 11 ildırns (reens restiti mrnt of 11ct aliran tushed the rigt! line between economics and politics in which the older liligrals had excluded thirstyr from 1 terſereint shopuri tion of free mult!! It \ CWS 14 expressed by Icu cannot laser surely political ideal for polllius i after 11? only a small part of life Your iden must lx 1 complete hole and rust itt prise lift 13 It stod cronomic social as 01 75 political 145 Alcok to break the ri id lines ixtiseen ccor omnis and 30121725 They sir ititi?fref nike relependent 17:c Il $07111 ·( 117 1 major purpose for this revision of theory of liberalisin for green, was to force the state to adopt a legislative programme for post tive good from which it had previously alyst used The State must come forw til for making pullic education compulsory and should finance it also to make regulation for samtary and public health standard of nutrition housing for decent living conditions and control over labour contracts 163 Our Directie Principles have incorporated all these ideals It should thus be noted that their exists a parallelism of views between our leaders and modern English liberals Green s ideas came very near to the liberal form of socialism insolving no class intagonism and was very inuch similar to idea of rabian type of socialism "No sharp difference of principle separated Greens liberalism from the socialism of the group of young man who organized the Fabian Society in 1884 Loth green and the Tahraas reflected, probably independently an important change in the climate of British political opinion, namely a loss of confidence in the alleged social efficiency of private enterprise and an incrcnscd willingness to use the state s legislatie and administrative power to correct its abuses as an extension of liberalism been pointed out previously that Pt Melirus interest in socialısın tarted from Fabian tipe of socialism when he was student at Cambridge University I would say that it was really at Camb ridge that broadly speaking certain socunlı tır ideas-partly Tabian Sacıalı m partly some slightly more 15,ressile socialistic idens-developed 185 rtus it should be noted that Fabian Type of socialı m is an extention of the 11eus of 1 H Green that revised Silveralism is an effort to discipline individualism of old liberalism Now from the age of Greens te 15ed liberalismn we come to the stage of cocialism? It has been enphasised previously that our constitution has been influenced to 7 scry great extent ly the aspirations of socialistic principles In the Fabın (syys Sido es llebb asserted that the economic ide of ili dem intir idea is in fact socialism itself and Sidney Olner said that socnl m is a merely individualism ration.lized is only the expression of the eternal passion of life seeking its satufaction throu, h the stil in, of each individual for the freest and fullet activity Socialism not 1A4 (I! }}.15 IS ·( 118 ] suppression but the realization of personality and individuality Indeed it would not be difficult to represent Fabian socialism as an effort to implement Greens positive freedom on the basis of a much wider knowledge of economics and of industrial and political administration than Green possessed And while the Fabians propo ed to go much farther than Green in the direction of nationa izing basic ndut stries and control'ıng production and distribution they based their plans, as Green did on the observed bad effects of leaving the economy uncont rolled Sidney Webb in' Labour and the New Social Order 1918 chalked out a programme of national mınıma for British Labour Party and this programme included a minimum standard of leisure, health education and subsistence and any policy contrary to this programme to be considered as anti national All these ideals of public policy have been included in the provisions of Directive Principles of our constitution, and not to implement the provisions of Directive Principles should be consıdered contrary to our public policy these directive principles are thus the objectives of Indian National Policy The crux of the arguments 19 that the earlier phase of our struggle for freedom was influenced by early liberalism and the concept of certun inalienable civil rights such as right of freedom of expression liberty Irfe property were emphasized and they believed (early freedom fighters) in the laissezfaire economic system An evolutiou in political ideals took place and under the influence of Gandhiji and Pt Nehru freedom struggle more and more came to be hinged on the issue of alleviation of the sufferings of human beings and gradual realization that capita listic economic system produces human miseries and this system should be ended and should be replaced by a system not based on acquisitive tendency but on co operation The state should through progressive legislation create those actual conditions and circumstances where there may be the greatest good of the greatest number that is the state 25 morally bound to conirol the economic system in the interest of general good It should by possitive efforts strike to create Humane conditions of work for the security and stability of employment for the creation of better conditions of health, nourishment sanitation ·با [ 119 housing etc, and should make positive efforts for the compulsory education at state expense All these ideals of revised liberalısın have been included in our Directive Principles and State is under constitu'ional Ojugation under Article 37 and it shall be the duly of the State to apply these principles in making laws 188" to trive to secure these conditions and to apply these ideals and directives for its legislative and executive programme Thus the ideals of revised and evoked Liberalism have been incorporated in the Directive Principles of our Constitution and they represent the evolved phase of that theory Those who oppose these directre principles stuck on the level of old and discarded theory of liberalism Carly Liberalism laid more emphasis on civil rights eg equality before law security of property freedom of profession and trade and freedom of contract etc Mostly these political rights have been included in the chapter of Fundamental Rights The revised and advanced theory of 'liberalism puts more emphasis on social and economic rights Mostly such social and economic rights has e been included in the Directive Principles of our Constitution Thus the provisions of Directive luinciples represent the ideals of advanced liberal political philosophy and are therefor of superior value Earlier liberalism also laid more emphasis on individualism but revised theory of liberalısm permits interference in the liberty of individual in the interest of general community that is it emphasizes that self is a social self This theory therefore permits legislative interference in the economic system by the State for the general good Various amendments of the Constitution which have been done to abolish Zamındarı free enterprise capitalistic system concentration of wealth etc have been done according to the principles of revised liberalism Those who have opposed these amendments on the plea that they interfere with their civil and political rights as incorporated in Fundamental Rights Chapter have remained stuck to the old notions and have not kept pace with the evolution of the philosophy of liberalism that is why they failed to appreciate the superior importance and significance of the Directive Principles So fır we have discussed about the economic policy and Laissezſaire theory etc in relation to the old and revised libera Now we come to the abolition of Zamındari and big land ism ·( 120 ) holdings and their abolition on the basis of mcdern theory of state Zamındarı system was a product of middle age feudalı tic system of political organization where sovereignity for practical and historical reasons was duided because in addition to National laws private laws also existed which feudal lords and 2 amındars could appl over their tenants This was either due to the absence of an effecti e central control or due to the connivance of kings Feudalism 18 typically a system in which public functions are treated as private services to be bought or sold as if they weru property In a moçlern state such system which allows priate law and public function in private hand is unthinkable because according to modern concept of sovereignty the power of state is not divisible and no intermediary on land and law can be tolerat ed between the state and the tenants and therefore on this ground of indivisible sovereignty Zamındari system has no place Apart from this it is a system which produces exploitation of labour and hisans and causes them great hardship by way of heavy demands by Zamındars from their tenants and their illegal eject ments and other harrisments To allow such a system which produces so much miseries is contrary to the principles of human ism and modern theory of the state This botlı from political as well as economic reasons due to the modern concept of sovereign ty and concern of the state for public welfare and social security Zamındari system can have no place in modern society The various amendments of the constitution to facilitate the abolition of Zamındarı and otherbig estates and obstacles created in this programme by the interpretations of the courts in the deſence of Fundamental Rights should be viewed in this light and then issues of discussion can be better appreciated in uphold the superiority of Diectise Principle over conflicting fund mental ughts The conflict between Tundamental Rights and Directive Principles 15 the coflict of the old and modern theory of liberalism

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·( 122 ) clearly asserted that any future constitution of free India will provide for the abolition of Zamındarı and special welfare schemes for the backward sections of the community that is our aim will be to form an egalitarian society It is very natural that if we want to establish such a society the privileged classes which have been existing since long will have to be levelled down and in return down troddens will have be uplifted In other words, in indepen dent India there shall be reorganization on social economir ind political plane and this was the aim of establishing our constitu tion It has been shown in chapter "On the importance of Pream ble As An Aid In The Understanding of the Constitution that the Preamble is the yardstick of our Constitution It has also been shown that 'Objectives Resolution moved by Pt Nehru has been mainly reproduced in the Preamble The Preamble (emphasises the establishment of a society wh ra thore shall be social, econo mic and political jusuce son or the aspirations of the Preamble mainly those of political nitur. suuh as equality before law, freedom of speech expression etc and other liberties have been included in the Chapter of Funda nental Rights but still a larger number of aspirations have bu a put in the directive principles and they are mainly of social and eco 10 nic nature It has also been adequately stressed that we cannot rest content with political equality alone but we will have to make attempts to establish social and economic equality as well which can manly be achie ved through the effective implementation of the provisions he of Directie Principles 187 The crux of the problem of this book 15, if there is a conflict between a fundamental rights and directive principles which has greater importance ? This book is mainly concerned with the con Nict between these two vir Fundamental Rights and Duective Principles, regarding issues of economic and social nature only Thus situation of the conflict hus a risen becausc courts hait upheld the supremacy of the conflicting fundamental rights against rele vant Directive Principles merely on the ground that the former are justiciable and the latter are not We have shown in chapter sccond that this basis alone should not be viewed as all important ·[123] so as to exclude all other con derations There are other points as well for consideration If we want to establish a progressive socia listic society, if we want to realize so many ideals which have been mentioned in the directive principles we will have to give them their rightful importance For the sake of the rights of few, the entire historical development cannot be stultified or reversed The history of various relevant amendments of the constitution show that mostly such amendments have been made to translate the ideals of Directive Principles 188 If this is not done then how can we progress towards an egalitarian and socialistic society? If we defend the statusquo of inequality in the name of some fundamental rights how can achieve equality Which is our goal? To defend the statusquo of inequality in the name of some fundamental rights is itself rank injustice and great manoeuvring for perpetuating inequality In fact before providing equality, the already existing inequalities have to be eliminated first To avoid such complications in the interest of establishing a classless society and to make the nature of Indian Constitution clear without any ambi gurty Prof KT Shah had suggested in the constituent assembly that in the first article of our constitution Socialistic State words should be included 189 He had a prophetic apprehension that, perhaps in future courts may not give due respect to the directive principles through which socialistic society may be established but Dr Ambedkar gave a solemn assurance on the floor of the consti tuent Assembly that the inclusion of the words socialistic state is redundant due to the presence of directive principles in the draft constitution because all the needed socialism has been put in them 100 (Directive Principles) Now whenever the state tried to abolish Zamındarı, to make so far miserably neglected farmers the owners of the land the courts came in the way and hence first and fourth amendments were made in the constitution to make the way clear for the economic progress Thus gradually a slow but progressive revolution was taking place through these amendments and sufficient explanations were given for the need of these amendments The apparent contradiction between the fundamen tal rights of property and needs, rights of Kisans were harmoni zed through these amendments by the Indian Parliament The substance of the whole process can be summed up in the words of ·Rights 192 I[ $124 ] late Pţ Nehru "It is upto this parliament to remove that contra diction and make the fundamental rights subserye the directive principles 101 Fundamental Rights have often been used to preserve wreching so lal 11 q:alities, this cannot be allowed to happen in India The social id as of the 20th Century must not Le lost amid 18th and 19th Conų) i Decipes of Fundamental These views of Pt Vehru were lattor on supported by David H Bayley, through following lines In any case of subs tantial conflict between the Sovereign will of Parliament and the opinions of Judiciary even in interpreting the constitution of India the will of Parliament must prevaili This does not mean that India does not or cannot have an independent Judiciary which can do much to enforce the rights set forth in Part III of the Constitution It only means that po sed of a certain determination the central legislature will and indeed ought to over ride the opinion of the courts This principle is not excepuonal in itself the I'nglish have been operating under 1 for generations without losing any appreciable measure of their political free dom 199 Thus through progressive amendments through the translation of Directive Principles into action 94 we have been progressing towards an egalitarian society Flits fact has been acknowledged and appreciated even by foreign writers and it has also been accepted that it is and has been a ocialı tıc revolution Thus for example Taya Zinkın writes Ever since 1916 India has been passing through a revolution, a revolution doubly unique It is the world s only socialist revolution and it is the only revolution to be conducted democratically with all the forms of law by the time it is over India will have been transformed from a society thoroughly hiearchic into one almost as firmly egalitarian as Sweden 195 Appreciating a further, Taya Zinkin writes' more over if it surceeds the Indian revolution which can perhaps be best described as Nehruist will provide the rest of the under deve loped world with a pattern of development which will make com munism look both old fashioned and barbarian by comparison It is in fact a revolution by consent This Indian Revolution is deliberately and professedly socialist 196 Similarly the great Indian patriot and writer shri Jaya ·[ 125 ) Prakash Narayan also accepts in his paper Organic Democracy "It is a matter of satisfaction that India is committed to a democratic socialist pattern of society "187 Thus the slow and steady socialistic resolution was going on and Zamındarı was abolished inspite of obstacles created by the decisions of the courts, nation lization of many services and industries was done, public sector was being created and tax structure was made to avoid as far as possible, concentralion of wealth, 'In short the belt had been tightened around privileges waist,' 198 Later on the courts also agreed that the state has a right to amend the constitution 99 but the majority judgement of the Supreme Court of India on the constitutional validity of the 17th amendment in the case of Golak Nath and Others Vs The State of Punjab 200 crcated a serious set back to it and had sought to turn the arms of tle clock in the reverse direction It will be in the fitness of the affairs 10 touch in, brief this, decision of the Supreme Court on the constitutionality, of the 17th Amendment Act and the power of amendments under Article 368 of our Constitution Out of the eleven judges of the Supreme Court six have held that, constitution under Artic i not be amended so as to abridge cr infringe, fundamental, rights according to the article 13(2) It is a matter of common knowledge that Ist 4th and 17th amend ments were made to execute, the provisions of the directive principles in contradiction to property rights previously defended by the courts In the case of Shankarı Prasad and Sajjan Singh s the Supreme Court had held that the state has right to amend the constitution provided a particular procedure was adopted There is no limit on this power of amendment The present judgement was based on a very slender majority the majority of one Judge The judges of the Supreme Court were duided on this résue in two groups The one group led by ex Chief Justice Subba Rao and including justice Shah Justice Sıkrı Justice Shelat and Justae Vardy alıngam Justice Hidaytullahia maintain that Article 13 is most important and custitution can not he amended under article 368 10 abridge fundamental nghis In other words article 368 1 to be treated as subservient to Article 13(2) while other groups including Chief Justice lanchoo Justice Bhargava Justice Mitter Justice, Bachawat etc maintained that article 368 gives un ·( 126 ) imited power to the state and thu article cinnnt be alınded in forer by Article 13 In fict according to them Article 13(?) u to remain sulsen rent to the amending artılce 318 In the camer Champiłam Dorarrajan's The Stric of Viadrus "uf the Supreme Court field as we have already discussed that the chapier of funila mental rights us sacrosanct and not liable to be ibridzed by any execulist and leislative Act and direile principles should remain sub venient to fundamental rights This was the first stage of the opinion of the Supreme Court of India regarding relative value of direcine principles via vo fundamental rights (nnucle 46 in relation to article 15 and article 29(2) ) throunh this decision court field of view that in the defence of the richt of equality and nun disera mination special encouragement and concesions to backward anıf scheduled cantes regarding admission in educational institutions ·[127] ting articles of fi ntal rights chapter, came to cuist and many judges began to accept the view that the fundamental rights are amendable and that cognisance of directive principles should be taken into consideration when constitution is interpreted, as is esidenced by the following lines of Justice Mahajan and Justice SR Das Now it is obvious that the concentration of big blocks of land in the hands of a few individuals is contrary to the princi ples on which the Constitution of India is based The purpose contemplated by the Act, therefore, is to do away with the con centration of big blocks of land and means of production in the hands of a few individuals and to distribute the ownership and control of the material resources which come in the hands of the State so as to subserve the common good as best as possible' *03 The above quoted lines of Justice Mahajan are in relation of the case of Kameswar Singh vs State of Bihar in which the couit used the directive Principles for its guidance in determining & crucial question on which the valıdıty of the Bihar Act hinged The question was whether there was any public pupose to justify the legislation which acquired compulsorily vast lands of private owners Here the judge was guided absolutely by the Directive Principles Similarly Justice SR Das substaintially reproduced the same language in the same case after quoting articles 38 and 39 of the chapter on Directive Principles and said 'In the light of this new outlook what I ask is the purpose of the State in adopt ing measures for the acquisition of Zamındaries and the interests of intermediates Surely, it is to subserve the common good by bringing the land which feeds and sustains the community and also produces wealth by its forest mineral and other resources under State ownership or control This State ownership or con trol over land is a nсecessary preliminary step towards the implementation of Directive Principles of State Policy and it cannot but be a public purpose This is the second stage of the opinion of some courts and some judges regarding the relative value of directive principles Due to the progressive amendments He were marching towards the welfare state according to our previously expressed pledges 205 and thus forward march through various amendments was favourably commented upon by Chief Justice Sastri in the case of Shankarı Prasad ys Union of India 04 ·( 128 ] where the validity of the constitution (First Amendment Act) itself was challenged The Judi e sidWhat led to that cnart ment is a matter of cortmon knowledge The Political party now in power commanding as it does a majority of votes in the servcl State Legislature as well as in Parliament carried out certain measur s of arranan reform in Bihar Uttar Pradesh and Vadhya pradesh by enacting legislation which may compHndiously bare ferred to as Zumindury Abolimon 1cis Certain Zamındars feeling themselves arsriesed hetacked the validı y of the Arts in courts of law on the ground that they contriyezeithundamantal rights conferre inn tham by pact fil of the Constitution The High Court at Puni held that the Act passed in Bihar was un constitutionit wi le th“ High Courts at Allahabulan! Varpu upheld the validity of the correspondin legislation in Utter Pra desh and Madhya Pradesh respectively Appeals from those d cu sions are pendın, in the court Petitions filed in this court by some other Zamındars speking the detrrmination of the same ques tion are al o pending At this tage the Union Government witli a view to put an end to all the litigation and to remedy what they considered to be certain defects to light in the working of the Consıttution brought forward a Bill to amend the Constitution, which after under gring amendments in particulars was pas od by the requisite majority as the Constitution (First Amendment) Act, 1951 106 * The validity of the Constitution First Amendment Act itself was challeged in 2 p tition under Article 32 in Shankarı prasad Vs Union of India Bitti Supreme Court upheld the validity of this Ict olding 'inter alia that subject to the special provisions in Irt 363 any pro 1519n of our Cons titution can bc amended by Parliament in the ordinary legislative promesse Thes represent the third stage some courts and some judges regarding the point that the consti tution can be imended to abridge fundamental rights The deci sion of the Supreme Court in relation to the constitutional vali dity of the Seventeenth Amendment Act seeks to give a turn to the constitution in the reverse direction in the sense that in future so long this decision stands parliament can not amend the consti tion under Article 368 to abridge the scopº of fundamental rrihts 7 View ·( 129 ) are This deicision has created great political and constitutional stir in the Country and constitutional experts and judges the merits of the issue of almost equally divided on this decision Five minority judges, formerly Advocate General of Madras Shrul Kumar Mangalam and very eminent jurist and writer on the problems of Indian Constitution Prof DN Banerjee are very critical of this judgement 109 This decision has by im plications far reaching political economic and social consequences because in future the programme for socio-economical progress may be hampered The controversy regarding this decision hinges on the scope of the word 'Lawand article 368 of the Indian Constitution This decision is also mainly related to the value of Directive Principles in relation to Cundamental Rights Upto the 'time of this decision as we have seen and noticed above that Sup reme Court although upholding the Supremacy of Justiciable Fundamental Rights never doubted the authority of Parliament to make amendments under the authority of article 368 But now due to this decision a new situation has arisen It has been already pointed out that the judges of the Supreme Court were divided on this issue in two groups According to the majority group led by ex chief justice Shri Subba Rao article 13 of the constitution can over ride the provisions of article 368, in other words article 368 15 to be treated as subservient to article 13(2), while other group including Ex chief Justice Wanchoo Justice Bhargava Justice Mitter, Justice Bachawat maintained that article 368 gives unlımred power to the state and this article can not be abridged by artı cle 13 The first group maintained that the amendment procedure as enunciated under article 368 leads to the enactment of a 'law and therefore if it is in contravention of article 13 (2) it has no validity The second group of the Hon ble Judges holds the view that the procedure of article 368 leads to a 'constitutional law and not to an ordinary law and hence it can not be bound by the language of article 13(2) which deals with ordinary law and not with constitutional law Hon ble Justice Subba Rao and his sup porting colleagues in short meant to say that the Fundamental Rights are beyond the reach of Parliament and under no circums tances no law and no amendment can be made by the parliament to abridge the scope of fundamental Rights This decision there ·( 130 ) forc amounts to declare that the previous decisions of the Supreme Court are negatived and also that in future no directive principles will be permitted to over ride fundamental rights The basis of this single majority d C13101 is tait, amendment act is like an ordi nary act or law and should b treate.lns such With due respect and deference to the Hon ble Judges of the majority it is to be pointed out that on close scrutiny this basis seems to be un sound and this has been acknon ledged as such by Justice Wanchoo and Jus supporting colleagues of the Supreme Court My arguments are that part \\ of the Constitution with the title Amendment of the constitution has been specifically provided for the amendment of the constitution and any Act which is produced as a consequence of the procedure of this part necessarily leads to the formation of a con titutional law and not to ordinary law because for the formation of ordinary law there is a different place in the constitu tion, articles 107, 108, 111, further if the langunge of part X\ of the Constitution is read carefully it can be noticed that no where at has been mentioned that amendment can not be made to curtail fundamental rights If this were the position there was nothing to bar the framers of the constitution to write here in the explicit language that the amendments can not be made to curtail ſunda mental rights as has been clearly mentioned in the amending article (V) of the constitution of USA where it has been express written provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth sec tion of the first article and that no State without its consent shall be deprived of its equal suffrage in the Senate 110 In the consta tution of USA thus a clear limit for the amendment of the cons titution has been prescribed In the amending part of the Indian Constitution there 19 no such limit regarding fundamental rights of the intention cf the makers of the constitution was this they would have easily introduced such prohibition on the amendment of the constitution Secondly clause (2) of article 4 which deals with the formation of new states says No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368 211 This clearly proves that for the aa endment of this constitution only article 368 is valid that is a ·( 1311 1' legitimate amendment of the constitution can be done only under article 368 These views are supported by Prof D N Banerjee in his article, 210 "Supreme Court and Tundamental Rights" POWER TO AMÉND CONSTITUTION It may also be noted in this connection that the Heading of Part XX of the Constitution and the marginal note thereto are respectively as follows Amendment of the Constitution and Procedure for amendment of the Constitution Certainly the authors of the Constitution' knew what they were doing They used the expression Amendment of the Constitution and not of this or that part of the Constitution They envisaged in Part XX of the Constitution the whole of the Constitution and not any particular part or Parts thereof Therefore part III of the Constitution which deals with our "fundamental rights autoratically falls within the scope of the amending provision re article 368 Under it therefore, any part of our Constitution may be amended in any way the amending authority or authorities as the case may be, may think fit This is the law of our Constitution Any other view is not aw Further a distinct procedure other than that which is used for ordinary law has been provided in this part for the amendment that is ordinarily the law is made by the simple majority in both the Houses of Parliament or by a simple majority of the Joint Ses sion of both the Houses of the Parliament but for the constitutional amendment a Bill has to be passed by a special majority that is by the majority of the total membership of the House and by a majority of not less than two third of the members of that House present and loting Next, an ordinary Bill when presented to the President can be sent back for reconsideration (Article 111)' but there is no provision for reconsideration of the constitutional Bull on the recommendation of the President, that u President can not treat constitutional Amendment Bill in the same way as he can do an ordinary Bill under Article 111 Thus we see that a consti tution amendment Law can not be treated as ordinary law as has been suggested by former chief Justice Subba Rao "The Chief Justice then considered whether the amendment of the hotte stitution under article 368 $ 'Law within the ·( 132 ) 13 (2) and said it does not exclude constitutional law) 313 Fur ther The Chief Justice then r, cted the argu nent that the power to amend is a $os ereign po ver there was nothing in the nature of the amending power shich enables Parliament to over ride all the express or implied limitation imposed on that power He therefore held that the suventeenth Amendment in as much as it takes away or abridges the fundamental rights as void under Article 13(2) of the Constitution 314 He (Chief Justice Subba Rao) concluded the fundamental rights are given a trans cendental place under our constitution and are kept beyond the reach of Parliament 216 Justice Hiday tullaha also maintained that constitutional law is not different from other ordinary law That is it is within the scope of Article 13(2) “Mr Justice Hiday atullah on the whole agreed with the Chicf Justice The judge said there was no difference between the ordinary legislative and the am ending processes in so far as article 13(2) is concerned both being laws in their true character came within the prohibition of article 13(2) against the state and that the directive principles cannot be invoked to destroy fundamental rights It does not mean he said that fundamental rights are not subject to change or modification The constitution permits a curtailment of the exercise of most of the fundamental rights by stating the limits of that curtailment but does not permit the state itself to take away or abridge the right beyond the limits said by the constitution 216 He fur ther said Parliament must amend article 368 to conyoke another constituent assembly, pass a law under item 97 of the first list to call a constituent assembly and then that assembly may be able to abrıdge or take away the fundamental rights of desired It cannot be done otherwise 917 On the whole Justice Hidayatullaha con cluded (1) That the fundamental rights are beyond the amenda tory process of the amendment seeks to abridge or takes away any of the fundamental rights (11) That Shankarı Prasad s casc (and Sujan Singh s case which followed it conceded the power of amendment over part IIIrd of the Constitution on an erroneous view of articles 13 (2) and 368 (m)' & That this court having now laid down that fundamental rights cannct be abridged or taken away by the exercise of amendatory process of article 368 (tv) That for abridging or taking away fundamental rights a cons ·[ 133 ] tluent body will have ta be convoked It is clear from the above conclusions of Chief Justice Subba Rao and Justice Hidayatullaha that ordinary law and consti utional law are similar so far the prohibition of article 13 (2) » concerned Bath these Hon ble Judges missed the difference between ordinary law and constitu lional law while we have tried to prose that constitutional law due to its different procedure of enactment and the need of a spe cial majority and different consequences in relation to presiden trat consent, cannot be treated as ordinary lax and hence it can not come within the prohibition of Article 13 (2) The position taken by Justice Wanchoo seems to be more sound He maintained that power contained in Aruicle 368 was not ordinary legislative power but constituent power for the specific purpose of the amend ment of the constitution Thu he said cannot be tested under Arti clc 13 (2) or under any other provision of the constitution The 17th Amendment is, the Hon ble Judge said, merely an exercise of the power of amendment and cannot be struck down on the hound that it goes beyond the power conferred, on Parliament to mend the cunstitution by article 368 He held that there was no implied limitations on the power of Parliament under Article 368 and any provision of the constitution, beit in part III or any other past can be amended under article 368 Mr Justice Wan choo further held that when article 13 (2) prohibits the State from making any law which takes away or abridges rights con ferred on Parliament and legislature of States, it cannot have any reference to the constituent power for amendment of constitution in article 368 and further held that article 368 confers complete power to amend each and every provision of a constitution. 219 Commenting on the point whether the decision in the case of Shankarı Prasad in which Supreme Court had undnimously mam tained that the state had a right to amend the constitution so as to curtail the scope of Fundamental Rights (Justice Hidayatullah lias maintained that, that was based on an erroneous views as we have shown in the previous pages) Justice Wanchoo said that Shankar Prasad case was correctly decided and that the majority in Sajan Singh s case nas coreCI 17 fullowing that decision Fal low ung that decision we hold that the 17th amendment is good' lle justice lanchoo) repudiating the stand of the man ·( 1 ) are to emphasized that. We would be very relurtant to over rule the unanimous decision in Shanları Prasad s case or any o her unani mous decision by the slender majority of one in a larger Bench constituted for the purpose We say this with great respect and would hold that apart from the principle of State decision we should not say that the unanimous judgment in Shankarı Prasad case was wrongly decided by such a slender majority in this spe cial bench' Refering to article 368 Mr Justtice Wanchoo said that when a separate part was provided headed Amendment of the Constitution the power to amend the constitution must also be contained in article 358 which is the only article in that part (He said) on a comparison of the scheme of the words in article 368 and the Scheme of the word in article 248 read with Item 97 of list 1 there was no doubt in the mid that both the procedure and power to amend the constitution be found in arucle 368 and they are not to be found in article 248 read with item 97 of list 1 which provides for resı duary legislative power of Parliament therefore Mr Justice Wanchop said reading article 368 It is clear that the power to amend the constitution is to be found article 368 itself and secondly the power to amend the constitution can never reside in articles 245 and 248 It was significant to note that the word law which has been used in so many articles has been avoided with great care in Article 368 power contained in article 368 was not ordinary legislative power but constituent power for the specific purpose of amendment of the constitution, and can pot be tested under article 13 (2) or under any other provision of the constitution 2 O (Mr Justice Bhargava and Mr Justice Vitter concurred with the views of Justice Wanchoo ) Defending the power of amendment of the state Justice Wanchoo said that it is a safety valve which to a large extent provides for stable growth and makes violent revolutions more or less unnecessary 2:1 and warned that the more rigid a constitution the more likely it 15 that people will outgrow it and throw it overboard violently Similar views were held by Justice Rama Swami agreeing that 17th amendment is legally valid and it is clear he said that the first fourth and 17th amendment were help the state legisla *ures to give effect to measures of agrarian reform in a broad and ·[105] comprehensive sense in the interest of a very large section of Indian Citizens whose social and economic welfare closely depends on the pursuit of progressive agraian policy He also rejected the argument that the power of amendment is to be found in article 246 and 248 of the constitution read with Item 97 of List I The power of amendment can not fall within these artıcles be cause it is illogical and a contradiction in terms to say that the amending power can be exercised and at the same time it is sub ject to the provisions of the constitution Today at a time when absolutes are discredited it must not be too readily assumed that there are b sic features of the constitution which shackle the am ending power and which take precedence over the general welfare of the nation and the need for agrarian and social reforms 279 Mr Justice Bachawat by a separate judgement agreed with Mr Justice Wanchoo and said that article 368 was a provision meant for amendment of the constitution The Judge rejected the conten tion that a constitutioral Amendment is a law and therefore the power of amendment given by article 368 is limited by article 13(2) In fact he said artiele 13(2) is ubject to the overriding power of Article 368 and is controlled by it Article 368 is not controlled by Article 13(2) and the prohibitory injunction of Article 13(2) is not directed against the amending power He said looked at from this broad angle Article 13(2) does not forbid the making of a constitutional amendment abridging or taking away any right conferred by Part III The power of amending the Consullution is not an ordinary law making power It is to be found in Article 368 and not in Article 245 246 and 248 Mr Justice Bachawat held that the Ist 4th and 17th amendments are constitutional and not void +3 The substance of the arguments of the majority in this case (on the constitutional valıdıty of the 17th amendment) is (1) that fundamental rights are beyond the amending soner of the Parliament as described in article 368 (u) A las passed by the Parliament under the procedure of article 368 is an ordinary law and hence it comes within the prohibition of article 13(2) (11) If Parliament has to amend the fundamental rights then it must convene a constituent assembly as per its resi dual power under Article 246 in conjuction with the contents enumera ed in List I of the II Schedule Entry 97 in list I ·[136] gives Parliament power to make a law in re peut of any other matter not enumerated in Last II and List III This power 11 termed the residuary power We have already discussed the views of many eminent judges of the minority group in thus case that amending power of the constitution lies in the article 368 only because the title of this article is amendment of the constitution Secondly the language of clause (2) article 4 "No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368" Clearly shows that for the purposes of the amendment of this constitution power lies in article 369 only Thirdly even if it is accepted for the time being that the power of amendment of the constitution regarding fundamental rights is not in article 368 and is in articles 245 246 248 as has been suggested by the majority judgment it is most respectfully submitted that the basis of this argument is fallacious because the residuary power has been inserted in entry 97 of List by accident for originally the constitution makers intended to invest the state legislatures with the residuary power and not the Parlament It was only at latter stage in the discussions in the Con stitution Assembly a decision was taken to vest duary power the Centre Thus at clear that originally makers of the constitution never intended to give rest duary power to the Parliament or the Central legislature and it was only latter on that the suggestion was accepted that resudiary power may be vested in the Parliament Now the Judges of the majority group say that in the constitution the power of amend ment is to be exercised in relation to the residuary power of the Parliament and they ignore that this vesting of residuary power in Parliament was merely an accident and it was really never contemplated that amending power will reside in other articles accept article 368 If according to the original plan the resudiary power was vested in the states then there would have been no question of the amending power being located within that resu diary power of the states for that would lead to the position that all the states are individually competent to amend the consti tution 224 and this situation would have reduced amending pro cess to chaos and the destruction of the constitution This shows that it is not a sound argument to say that the amending power the rest in Is ·[ 137 ] of the constitution does not lic in article 368 but in articles, 245 246, 248 and the residurry power of the parliament because this residuary power in Parliament was vested mercly by a chance and not by any purposeful intentions of the constitution makers and hence the basis of this argument cannot be relied upon Next, the last sentence in the first paragraph of article 368 the Constitu cion shall stand amended in accordance with the terms of the Bill, also proves that the amendment in the constitution will be done according to the procedure of article 368 Further in all countries where there is the provision for a written constitution there is always a distinction between an ordinary law and a cons titutional law, this is not the case in a country like England where there is no written constitution and all laws passed by the Parlia ment are similar without any distinction between an ordinary law and constitutional law In India there is a written constitution and hence any law which is concerned with the amendment of the constitution is a constitutional law and not an ordinary law and it cannot come within the prohibition of article 13 (2) which is concerned with the ordinary law Regarding the question how amendments in the constitution can be done to modify or change the fundamental rights, Justice Hidayatullah says "Parliament must amend Article 368 to convoke another Constituent Assembly, pass a law under Item 97 of the First List of Schedule 7 to call a Constituent Assembly and then that assembly may be able to abrıdge or take away the fundamental rights if desired' 228 Now of this argument is accepted then Parliament by a simple majority can pass a Bill under its ordinary legislative power and convert itself into a Constituent Assembly and then it can with simple majority destroy each and every fundamental right Commenting on this point it can be said that if the views of Justice Hiday atullaha are accepted then it will be much easier for a party in the Parliament with even simple majority to make in roads on fundamental rights much more casıly than it can now do under the procedure of article 368 because under this procedure it has to seek the support of at 'east two third of the majority of the members present and voting and in some cases concurrence of half the legislatures of India is also needed The proposition of Hidayatullah J that Parliament by ·[ 138 ] exercise of its law making power can convene a new Constituent Assembly in effect makes the destruction of fundamental rights by Parliament a task more easy of achievement than if the procedure under Article 368 us to be followed for as pointed out earlier his new Constituent Assembly will be brought into existence by a simple majority of the existing Parliament, and the Constituent Assembly so given birth to may by this same simple majority do anything it wishes to the constitution +96 Thus the news of the majority judgment by implication can lead to a situun when it will be easy to destroy fundamental rights All these difficult and confused legal arguments however ari e only because of the avoidance of the straight forward reply namely that article 368 is the complete answer to the question of where the amend ing power is and how it is to be exercised The minority judge ment lays down with clarity that the amending power is to be located in article 368 It accepts the constitutional position that legislative power and constitution amending power are two powers of the totally different quality Regarding this controversy Prof DN Banerjee also writes and supports the minority judgment As a student of Indian Constitutional law I find it really diffi cult to agree with the recent (I eb 27 1927) Judgment of the Majority of the Judges of our Supreme Court in what has become a popularly known as the Golak Nath and others Vs The State of Punjab with all due deference to their Lordship s I am constrained to say that speaking juristically, the judgment does not appear to have been based upon a correct interpretation of the relevant provisions of our constitution 21 He further said "Article 13 of our constitution does not apply to or controls in any way article 368 thereof Nor was at intended to do so by the authors of the constitution 8 Commenting upon the nature of fundamental rights in relation to the amending power of the Par liament Prof DN Banerjee says ' I therefore very respectfully subirait that our fundamental rights bay.ever important they may be are not immutable and that they have no transcendental posi tion in our constitution 9 Thus it should be noted that the majority decision on the validity of the seventeenth constitutional amendment act has created a great legal controversy The prob lem with which we are most concerned is how to progress towards 2 ·[139] the ideals of an egalitarian society in view of this decision because now according to this decision in future state cannot amend the Mir NC constitution to make way for th directive principle Chatterjee, Member of the Lok Sabha had suggested a presiden tral reference to the Supreme Court for an authoritative interpre tation of article 368 of the Constitutbn 'The purpose of this refe rence according to Mr Chatterj e is to make the article available for amending the constitution The court should also be asked to suggest any changes in the article if nºces ary to place the sove Tegnty of the pey'z hayond the pile of cortoversy The sugges 1107 aru containei in th- letter Mr Chatte y ewro e to the Prime Minister Mr Chatterjee holds that the concept of a progressive welfare state sometimes demanded changes even of the fundamen tal rights “He has said, the country is entitled to know if eyer amendments in the constitution become necessary to make our constitution conform to the needs of our fast changing society, why should a constitutional machinery as contemplated in article 368 be denied 230 Prof DN Banerjec suggests that authorities con cerned must take stens 'for an early review of the majority Judg ment in the Golah Nath case not with the help of article 143 (1) of the constitution but through a specific case brought before Supreme Court for adjudication A judgment should be fought by a judgment and not by any advisory opinion under article 143 (1) of the constitution -31 It is hoped that on such a refererence under the leadership of President Chief Justice Wanchoo, the minority view to which chief ju tice Wanchoo also agreed will prevail and way will be cleared for changing the conflicting fun damental rights to bring about a desired socio economic reorganı sation as envisaged in the provisions of the directive principles The Directive Principles of the Constitution elaborate, in a sense the ideals of the Preamble If the Preamble postulates the Sove reignty of the people the Directive Principles provide them with a yardstick to evaluate the moral character of the government under which they live They serve as a test which the electorate can apply to a government in power they supply criteria by which the success or failure of a political party could be judged 233 It has been pointed out in the introductory chapter, that our ·( 140 ) constitution has been influenced to a great deal by the Gandhuan Philosophy and it is natural that his ideals should have been also incorporated in our constituti in Vany important fcatures of Gandhran Plulosophis fasc txeon included in the directive princi ples and many of these direcinc principles in turn have become the basis of extensive legislation for example article 40 which clirects that the state shall organize sillage Panchayats and cndow them with powers of self go ernment has become the bus for Panchayu Raj which has altered the very structure of district administration of India Article 43 which deals with the promotion of cottage industries has gwen rise to 1 number of agencies now working in this direction such as All India Khadı and Village Industries Board All India Handicrafts Bourds small scale Indu strics Board, National Small Industries Corporation etc Similarly article 47 wluchis concerned with the implementation of the progra mmc for the improvement of the standard of living of the rural population has become the justification for the Coinmunity Devel opment Programme which hus far reaching consequences Social Economic and Political for the country The Directive Principles are thus very important for Gandhın ideals as well If we really want to understand our constitution rightly a balancd view about the existing actualities and future ideals has to be inaintained 1 hg means we are passing through 1 transition stage and we have to more gradually in the direction of a new system of organization of the Indian community really based on the ideals of economic and social justice where there is no exploita tion of man by min The Direction of these movements provided by the Directive Principles of se lay too much emphasis on tlie fundamental rights we shall cease to move and statu quo of present inequalities would continue The fundamental rights represent some thing static, there objective is to preserve certain rights winch already exist and directive principles are progressive they take the community towards a new goal and if some thing new is to be achieved it is but natural that the existing relauon slups will have to be changed This is the dictate of logic and se cannot escape it Durin. Parltamentary Debates at the time of he consideration of fourth constitution amendment Bull Dr NC Chaterjee liad (in 1935) vehemently opposed that Bill and very 13 ·[ 141 ] greatly emphasised that fourth amendment Bull was meant to tamper with the * Sancity of Private Property and said in Lok sabha that' Public good is nothing more essentially interested than in the protection of private property 133 Dr N C Chaterjee cmphastsed in Laksabha on 11th April 1963 "The Purpose of this Fundamental Rights Chapter was that no matter what majority you have, there are certain forbidden sectors on which you will never tresspass The purpose of fundamental Rights is that certain legal principles slould be established beyond reach of Parliament and the executive 234 Thus Dr NC Chatterjee in 1955 opposed the amendment of the constitution to abridge the ſundamental rights must remun beyond the reach of the Parlia ment But in the present circumstances Dr NC Chatterjee in view of the situation created by the decision of the majority judgment in the case of the constitutional validity of the 17th amendment says that a reference be made by the president to the Supreme Court that ļou if need be constitution may be amended to abridge fundament I rights According to Shri Chaterjee 'the concept of a progressive welfare state some times demanded chan ges even of the fundamental rights He has further said in the same context that if ever amendments in the constitution become necessary to make our constitution conform to the needs of our Cast changing society why should a constitutional machinery as contemp'ated in article 368 be denied 235 Similarly Prof DN Banerjee in his book Our Fundamental Rights Their Nature and Extent (As Judicially Determined) written in 1960 had supported the views of Dr NC Chatterjee regarding the amendment of the constitution (Fourth Constitution Amendment Bill) and has written in that book in relation to the statement of Late Pt Nehru (then Prime Minister of India) that it is upto our Parliament to make the Fundamental Rights subserve the Drective Principles of the State Policy 236 that it would be much better and more straightforward to delete the Chapter or Fondamental Rights from the Constitution and thus to do away with a camouf However now according to him respectfully submit that our fundamental right however important they may be are not immutable and they have no transcendental position in our constitution These reasons embolden me to say lage 237 I therefore very ·142 our our that con if your Constitution Asscmbly had laid down as a matter of fact it had not done so iny restriction on the soverci, on authority of Our Parliment ested in it by Article 360 of our Constitution, that restriction would not hase had any power to present our Parliament from inaking such changes in the Constitu tion as it might alunk fit If however, we think otherwise that will not be interpreting our Coristitution but writing a new constitrition altogether To declare therefore thint fundimental rights are of Immutable and 'transcendental character may be, it is very respectfully submitted good po try which may appeal to aur emotions but not good law which may appeal to intellcct 238 Fundamental riglits are not immutable in transcendental in character and now there is cmphasis on the amendments of the fundamental rights I cannot do better than quoting at this stage the lines of our grrat national leader Pt Nehru In the process of protecting individual liberty if you also protect individual or group inequalı ey then you come into conflict with that directre principles If therefore an appeal to individual liberty and freedom is construed as an appeal for the continuation of the existing inequality then you come up against difficulties You become static aud unpro gressive and cannot change you cannot realize the ideal of an egrlıtarıın society which I hope most of us want *39 Commen ting on the needs of amending the constitution and fundamental rights in rention to duective principles Justice Gajendragadkar says Vy point in mentioning some of these amendments is to all ustrate my thesis that in sceking to achieve socio-economic justice democracy and the rule of law can not treat any proposition as absolute und any provision as infallible and beyond the pale of modification If experience shows that some change has to be made democracy and the rule of law do not hesitate to make the change because it is the very essence of sociological jurisprudence that like lıfe law itself must benefit by experience 240 Further in the same context Justice Gajendragadkar said 'Democracy can no longer be a passue witness to the socio economic struggle and tensions It has to give up its policy of non alignment in such disputes because of the state is non aligned the result of the strug gle is a foregone conclusion The fight between the rich and the ·( 143 part of our pooi, the educated and un educated, the employed and the unem ployed, the healthy and the sick 13 311 entirch unequal fight, il advantages being on one side and all di advantages bring on the other If the state were to leave the decision of this fight to the unſettered rule of the free market in the belief that the survival of the fittest is the natural law then, of course the democratic way of life will be powerless 241 He has further said & has supported the dynamic part of the constitution in the following words Teach a stage in the progress of the democratic way of life where law ceases to be passive just as democracy ceases to be passive and the purpose of law like that of democracy becomts duna mic 242 We have already noticed that directive principles repres ent thc dynamic constitution hence for towards the goal of a really welfare state directive principles lave to be gun great importance The above quoted lines of late Pt Achru & thc opinion of Ex Chief Justice of India regarding the imp ortance of dynamic elements and principles of our constitution are key to the undt rstanding of the supremacy of the directive princi ples 'l hus our constitution is socialistic in aspiration directive principles are the means through winch socialistic organisation will be established there is an organic connection between the Preamble of our constitution and directive prin iples The Pream ble substantially incorporates the sentiments of the Objectives Revolution moved by Late Pc Nehru b fure the constituent as embly and the speeches of Pt Nehru regarding this resolution speak clearly of ocialism There is an under cument of socialism flowing through the various parts of our constitution and this ideal of socialism revolves round humanistic ideals the enancipita tion of the common man Let there be more cmph1333 on equa lity rather than on social and economic in equality Once we understand this the Directive Principles will appear more and more important and necessary. It is hoped that this work (Thesis) will create an atmosphere of better appreciation of the value of the Directive Principles in relation to conilicting Tundamunta! rights and in future Supreme Court under the leadership of ex Cluef Justice Wanchoo who was favourabli disposed to our view will revise its opinion and will open way for modifying fun damental rights in case of need for the implementation of Direc tive principles ·Thut an altemp hun xen male in this The 11 bori) in wrich in a balanre the s'allye fm *nce ? Hurcine inno, and I undanrntal Kinbots apylit pinli'm thar (1) (a tit itu pant rull tar interpreted in th lohi of nine art dill (*1081 Darkeruund pre exting thi # tual al 193 2) T- Intran (tius in hun ralli lauseentler ilral aril as of Kramatic fm olycony ») lis aim is tuase dois em fira'il in logopefugstim 1, 77 Citi utafuth Amt mabla's an IP nutishniri, lure frau front pime to form lmu hit slys Tv il pit ctia ir et retain of Dirtive I'm goin Pon 19,***, ! Iurantal Ri, bo whic's finn" in thr was or restaur I nnc pasal ritme sah inoltre ditur , ferrin 71-6> thru - mente ) The l'orsatsrat tinu'd has a si fannols-Carra ftfuls nmitnlrmalin, chan es in tlor furfama a? Kita causn er nerpe or I undar erial R. Piln fann feinain 1:atıc luas in mobily mlf in the aire interes 1. bacemand and WwWYT ** 11 of 11 comunit 771!) kery in an eye on the Inter ains of the minifuta mn Curta sau former llwall harinonious inespretution of the long sluit n and help and furto the le it's lure for this tablishment of a HXCr* mliere rconomic and »cial jutsue ma, lircome a reality thresholm errar implementa ton f 1stecure I'ronscupen the distance lrtworn the who 171r and there who have not inai ir preluce 1717 12nd amenilinent art is a culmination of the arguments 9o las pursurd in 13 lawik Shri Sh Sinh VIP sery cloquen tly said 15 thr Leblabla, that a bill for t'ad amendment ct should hair xen panel by the Parliament a decade boek Councidently this work at fcally for publication, nearly decarlr back through, professive constituinnal aniendments we hope to establish in India, 1 feally sxalistic and opalarsan 376 int Thin Constitution of India is in be undontexl and inter pretre in the light o our cheetshe] deals incorporalred in the preamble Din stisc Irinciples and a bilance has to be in lintained tyytteen lunelment al Rishes and Directie Irinciples Ialetind ·Appendix 'A 1 Part III r Fundamental Rights j t Definition 12 In this part, unless the context otherwise requires "the State' includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India 1 13 (1) All laws in force in the territory of India imm. ediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall to the extent of such inconsistency, bę void (2) The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of contravention, be void (3) in this article, unless the context otherwise requirs,- (a) law" includes and Ordinance, order, bye-law, rule regulation notification, custom or usage having in the territory of India the force of law (6) laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India' before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas (4) Nothing in this article shall apply to any amendment of this Constitution made under article 368 1 - ·[ 2 ] or RIGHT TO EQUALITY Equality before law 14 The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India 15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex place of birth or any of them (2) No citizen shall, on grounds only of religion, race caste, sex, place of birth or any of them, be subject to any disability liability, restriction or condition with regard to- (a) access to shops, public restaurants, hotels and places of public entertainment (b) the use of wells tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public (3) Nothing in this article shall prevent the State from making any special provision for wcmen and children (4) Nothing in this article or in clause (2) of article 29 shall prevent the state from making any special provision for the advancement of any sccially and educa tionally tackward classes of citizens or for the Schedu led Castes and the Scheduled Intes IC (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointtrert to any off ce ur der the State (2) No citizen shall, on grounds only of religion, race, caste sex, decent, place of birth, residence or any of them, te ineligit le for, or discriminated against in respect of any employment or office under the State (3) Nothing in this article shall prevent Parliament from making ary law prescribing, in regard to a classes of cn ployment or appointment to an off ce under the Covernment of or any local or other autl ority within a State or Lnion territory any requirt mert as to resi ·[3] dence within that State or Union territory prior to such employment or appointment (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State ( Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination 17 "Untouchability” is abol shed and its practice in any form is forbidden The enforcement of any disabi lity arising out of "Untouchability" shall be an offence punishable in accordance with law 18 (1) No title, not being a military or academic distinc tion, shall be conferred by the State (2) No citizen of India shall accept any title from any foreign State (3) No person who is not a citizen of India shall while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State (4) No person holding any office of profit or trust under the State shall without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State RIGHT TO FREEDOM 19 (1) All citizens shall have the right- (a) 10 freedom of speech and expression, (6) to assemble peaceably and without arms, (c) to form associations or unions, (d) to move freely throughout the territory of India, ·] 4 ] () to reside and settle in any part of the territory of India () to acquire, hold and dispose of property, and (8) to practice any profession, or to carry on any occupation, Iride or business (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right con ferred by the said sub clause in the interest of the sovereignty and integrity of India the security of the State, friendly relations with foreign States public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence (3) Nothing in sub clause (6) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the from making any law imposing in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause () Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so for 7s it imposes, or prevent the State from making any law im posing, in the interests of the sovereignt y and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause (5) Nothing in sub clauses (d), (e) and () of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the sard sub clauses either in the interests of the general public or for the protection of the interests of any Sched Jed Tribe (6) Nothing of sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public, reason ·[ 5 ] able restrictions on the exercise of the right conferred by the said sub clause, and in particular'11thing in the suid cub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to (1) the professional or technical qualifications, necessary for practising any profession or cari ying on any occupation trade or business, or, (11) the carrying on by the State or by a'corporation owned or controlled by, the State, of iny trade, business, industry or service, whether to the exclusion, complete or, partial, of citizens or other- 1 wise 5 - 20 (1) No person shall be convicted of any offence except for violation of a law in force lat time of the commission of the act charged as an 'offence, nor be subjected to apenalty greater than that which might have been inflicted under the law in force at the time of ommi slun of the offence (2) No person shall be prosecuted and punished for'the same offence more than once (3) No person accused of any offence shall be compe- Hled to be a witness against himself 21 No person shall be deprived of his life or personal liberiy except according to procedure established by law 22 (1) No person who is arrested, shall be detained in custody without being informed as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice (2) Every person who lo, arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said perind without the authority of a magistrate. 1 3 11 ·[6] (3) Nothing in clauses (1) and (2) shall apply - (a) 10 any person who for the time being is an enemy alien or (b) to any person who is arrested or detained under any law providing for preventive detention (4) No law providing for preventive detention shall authorise Ine detention of a person for a longer period than three months unless- (as an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that three is in its opinion sufficient cause for such detention Provided that the nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law mide by Parliament under sub clause (b) of clause (7) or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7) (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facis which such authority considers to be against the public interest to disclose (7) Parliament may by law prescribe - (a) the circumstances under which, and the class of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtai ning the opinion of an Advisory Board in accor ·(7) dance with the provisions of sub clause (a) of clause (4) (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention and () the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause RIGHT AGAINST EXPLOITATION 23 (1) Tramc in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them 24 (1) No child below the age of fourteen years shall be employed to work in any factory or engaged in any other hazardous employment RIGHT TO FREEDOM OF RELIGION 25(1) Subject to public order, moralny and health and to the other provisions of this part all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion (2) Nothing in this article shall affect the operation of any existing law or prevent the stete from making any la- (a) regulating or restricting any economic, financial political or other secular activity which may be associated with religious practice (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanalton / The wearing and carrying of kırpans shall be deemed to be included in the profession of the Sikh religion ·[ 8 ] Explandlon II In sub clause (b) of clause (2) the reſe rence to Hindus shall be construed as including a refe rence to persons professing the Suh, Jaina or Buddhist religion, and the reference to Hindu religions institu tions shall be construed accordingly 26 Subject to public order, morality and health, every religious denomination or any section thereof shall have the right- (a) to establish and maintain institutions for religious and charitable purposes (b) to manage its own affairs in matters of religion (c) to own and ncquire movable and immovable property and (d) to administer such property in accordance with law 27 No person shall be compelled to pay any taxes the proceeds of which are specifically appropriated in pay ment of expenses for the promotion or maintenance of any particular religion or religious denomination 28 (1) No religious instructions shall be provided in any educational institution wholly, matntained out of State funds..!! (2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution (3) No person atttending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious worship that may be conduct-d in such institution or in any premises attached thereto unless such person is : minor his guardian has given his consent thereto 11 CULTURAL AND EDUCATIONAL RIGHTS 29 (1) Any' section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same ·-- [ 9 ] (2) No citizen shall be denied admission into any educational institution maintained by the State or recei ving aid out of the State funds on grounds only of religion, race, caste, language or any of th.m 30 (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice (2) The State shall not, m granting aid to educational institutions discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language RIGHT TO PROPER TY 31 (1) No person shall be deprived of his property save by authority of law (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law, and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash Provided that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority referred to in clause (1) of article 30, the State shall ensure that the amount fixed by or determined under such law for the acquision of such property is such as would not restrict or abrogate the right guaranteed under that clause (2A) Where a law does not provide for the transfer of } the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property ·( 10 ) (2B) Nothing in sub clause (f) of clause (') of article 19 shall affect any such law as 15 referred to in clause (2) (3) No such law as is referred to in clause (2) made by the Legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent (4) If any Bill pending at the commencement of this Constitution in the Legislature of a State has, after it has been passed by such Legislature, been reserved for the consideration of the President and has received his assent, then notwithstanding anything in this Constitu tion, the law so assunted to shall not be called in question in any court on the ground that it contravenes the provisions of clause (2) (5) Nothing in clause (2) shall affect- (a) the provisions of any existing law other than a law to which the provisions of clause (6) apply, or (b) the provisions of any law which the State may hereafter make- (1) for the purpose of imposing or levying any tax or penalty, or (11) for the promotion of public health or the prevention of danger to life or property, or (111) in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other country, or otherwise, with respect to property decla red by law to be evacuee property (6) Any law of the State enacted not more than eighteen months before the commencement of this Constitution may within three months from such commencement be submitted to the President for his certification, and thereupon, if the President by public notification so certifies, it sh ll not be called in question in any court on the ·[ 11 ] ground that it contravened the provisions of clause (2) of this article or has contravened the provisions of subsection (2) of section 299 of the Government of India Act, 1935 '{SAVING OF CERTAIN LAWS) 31A (1) Notwithstanding anyıhing contained in article 13, no law providing form (a) the acquisition by the State of any estate or of any rights therein, or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the pro per management of the property, or (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or (d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors directors or managers of corporations, or of any voting rights of share holders thereof or (e) the extinguishment or modification of any rights accsuing by virtue of any agreement, lease or licence for the purpose of searching for, or win ning, any mineral or, mineral oil, or the premature termination or cancellation of any such I agreement lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31 Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law having been reserved for Inserted by the Constitution (Forty second Amendment) Act, 1976 3 1 ·[ 12 ] the consideration of the President, has received his assent Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under lus personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure stand ing thereon or appurtenant therelo unless the law rela ting to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof (2) In this article (a) the expression "estate" shall, in relation to any local area, have the same meaning as that exp* ression or its local equivalent has in the existing law relating to land tenures u force in that area and shall also include (1) any jagır inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right, (11) any land held under ryotwarı settlement (III) any land held oi let for purposes of agricul ture or for purposes, ancillary thereto, in cluding! waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans (b) the expression "rights”, in relation to an estate shall include any rights vesting in a proprietor, sub-proprietor under proprietor, tenure holder raljal, under roijat or other intermediary and any rights or privileges in respect of land reveinue ܝܐ 31B Without prejudice to the generality of the provivisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any ·! [13 of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force 31C Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing (all or any of the principles laid down !! Para, IV) shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by article 14 article 19 or article 31 and no law containing a declaration that it is for giving effect to such policy shall be called in ques tion in any court on the ground that it does not give effect to such policy Provided that where such law is made by the Legislature of a State the provisions of this, article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent 311 (1) Notwithstanding anything contained in artıcle 13 no law providing for- (a) the prevention or prohibition of anti-national activities or (b) the prevention of formation of or the prohibition of anti national associations shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31 (2) Notwithstanding anything in this constitution Parliament shall have and the Legislature of a State shall not have power to make laws with respect to any of the matters referred to in sub clause (a) or sub-clause (b) of clause (1) (3) Any law with respect to any matter referred to in sul-clause Substituted by the Constitution (Forty second Amendment1 ) Act, 1976 211 ·1 persons (a) or sus clause (b) of clause (1) which is in force immediate ; before the commencemert of section 5 of the Constitution (Fourt second Amendment) Act 1976, shall continue in force until altered or repealed or amended by Parliament (+) In this article (1) inssociation' means an association of (b) anti national activity in relation to an individual or association means any action taken by such individual or association (1) which is intended or which supports any claim to bring about on any ground whatsoever the cession of a part of the territory of India or the secessun of a part of the territory of India or which incites any individual or association to bring about such cession or secession (u) which disclaims questions threatens disrupts or is intended to threaten or disrupt the sovereignty and integrity of India or the security of the State or the unity of the nation (111) which is intended or which is part of a scheme which is intenaed to overthrow by force the Gover nment as by law established (11) which is intended or which is part of a scheme which is intended to create internal disturbance or the disruption of public services () which is intended or which is part of a scheme which is intended to threaten or disrupt harmony between different religious racial language or regional groups or castes or communities (c) antı national association means an association (1) which has for its object any antr-national activits (11) which encourages or ards persons to undertake or engige in an anii national activity (111) the members whereof undertake or engage in any anti national activity RIGHT TO CONSTITUTIONAL REMEDIES 32 (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed (2) The Supreme Court shall have power to issue direc- ·[ 15 ] ons or orders or writs, including writs in the nature of beas corpus mandamus prohibition, quo warranto and riorari, whichever may be appropriate, for the enforment of any of the rights conferred by this Part in Without prejudice 10 the powers conferred on the spreme Court by clauses (1) and (2), Parliament may y law empower any other court to exercise within the i ical limits of its jurisdiction all or any of the powers e ercisable by the Supreme Court under clause (2) ( ) The right guaranteed by this article shall not be sus ſ nded except as otherwise provided for by this Constit ting 3 A Notwithstanding anything in article 32, the Supreme Cou'l shall not consider the constitutional validity of a y Star lus in any pruceedings under ihol article unless it consiliul on validity of any Central law is also in issue in such proceedings )! 33 Parliament may by law determine to what extent any of the rights conferred by this Part shall, in thir application to the members of the Armed Forces or the Forces charged with the maintenance of public or 'er, be restricted or abrogated so as to ensure the pr per discharge of their duties and the maintenance of dis ipline among them 34 Notwithstanding anything in the foregoing provisions of this part Parliament may by law indem nif any person in the service of the Union or of a State or ny other person in respect of any act done by him onnection with the maintenance or restoration of ord r in any area within the territory of India where ma tial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act dor under martial law in such area 3) Notwithstanding anything in this Constitution (a) Parliament shall have and the Legislature of a State shall not have, power to make laws- 1 niserted by the Constitution (Forty second Amendment) Act 976 ·ment, 3 [ 16 ] () with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parlia and (11) for prescribing punishment for those acts which are declared to be offences under this Part and Parlament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub clause (11) (b) any law in force immediately before the com mencement of this Constitution in the territory of India with respect to any of the matters referred to in sub clause (1) of clause (a) or providing for punishment for any act referred to in sub-clause (11) of that clause shall sub ject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament Explanation In this article, the expression law in force" has the same meaning as in article 372 ·[ 17 1 Part IV DIRECTIVE PRINCIPLES OF STATE POLICY Definition 36 In this part, unless the context otherwise requires, "he State" has the sime meining as in Part III 37 The provisions contuned in this part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws 38 The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social, economic and political, shall inform all the institutions of the national life 39 The State shall, in particular, direct' its policy towards securing (a) that the citizens, men and women equally, have the right to an adequate means of livelihood, > (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the cominon good (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detri inent (d) that there is equal pay for equal work for both men and women (e) that the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength, ·( 18 ) [ that children are gren opportunities and facilities 10 develop in a healthy manner and in conditions of free dom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment ] 394 The State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for secur ing justice are not denied to any citizen by rea on of economic or other disabilities ] 40 The State shall take steps to organise village pan, chayats and endow them with such powers and authority as may be necessary to enable them to func tion as units of self-government 41 The State shall within the limits of its economic capacity and development make effective provision for securing the right to work, to education and to pub lic assistance in cases of unemployment, old ness and disablement, and in other cases of undeserved want 42 The State shall make provision for securing just and humane conditions of work and for maternity relief 43 The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise work, a living wage, conditions of work, ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and in particular the State shall endeavour to promote cottage industries on an individual or co operative basis in rural age, sick areas 43A The State shall take steps by suitable legislation or in any other way to secure the parricipation of workers in the manage ment of undertakings, establishment or other organisations engaged 1 Substituted by the Constitution (Forty second Amendment) Act 1976 Inserted Ibid 2 ·[ 19 ] in any industry 11 44 The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India 45 The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children unit they complete the age of fourleen years 46 The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation 47 The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health 48 The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserveing and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle The State shall endeavour to protect and improve the envi ronment and to safeguard the forests and wild life of the country 12 49 It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be 48A Inserted by the Constitution (Forty Second Amendment) Act, 1976 Inserted by the Constitution (Forly second Amendment) Act, 1976 2 ·20 50 The State shall take steps to separate the judiciary from the executive in the public services of the State 51 The State shall endtavour to- (a) promote international peace and security, (b) maintain just and honourable relations bet ween nations (c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another and (d) encourage settlement of international disputes by arbitration [Part IV-A) FUNDAMENTAL DUTIES 5JA It shall be the duty of every citizen of India (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem (b) to cherish and follow the noble ideals which inspired our national struggle for freedom , (c) to uphold and protect the sovereignty, unity and inte grity of India (d) to defend the country and render national service when called upon to do so (e) to promote harmony and the spirit of common brotherhond arrong«t all the people of India transcen ding religious ling 1stic and regional or sectional Als ersities to rindu ite practices derogatory to the dignity of women (f) to value and preserve the rich heritage of our compo- $ite culture (8) to protect and improve the natural environment inclu ding forests lakes riters and wild life and to have compassion for living creatures ; (b) to develop the scientific temper, humanisin and the spirit of inquiry and reform to safeguard public property and to abjure violence to strive towards excellence in all spheres of indivı dual and collective activity so that the nation cons tantly rises to higher levels of endeavour and achieve ment 35 1 Inserted by the Constitution (Forty second Amendment) Ac! 1976 ·REFERENCES ܐ n 1 Article 45 of the Indian Constitution Chapter of Directive Principles p1 Article 23 (1) of the Indian Constitution Chapter of Funda mental Rights PI 3 Article 17 of the Indian Constitution-Chapter of Fundamental Rights Article 24 of the Indian Constitution-Chapter of Fundamerin1 Rights p1 5 Article 42 of the Indian Constitution Chapter of Directive Principic 6 Article 41 of the Indian Constitution - Chapter of Directive Principles p1 Article 40, 43 46 and 48 of the Indian Constitution - Chapter of Directive Principles p 2 8 Hindustan Times May 29th, 1965 p 3 9 A Grammer of Politics Harold Laskı-Preface to the third edition, Page 2 lines 3 and 4 p3 10 (a) Refer to Fundamental Rights and Economic Policy adopted at 1931 Karachi Congress For detail please refer to the pages 82 86 P4 (6) Planning and Welfare- Page 513, Nehru & Political Biography-Michael Brecher, Oxford University Press, 1959 P4 11 Studies in Modern Indian Political Thought, an interpreta tron of Gandhi- Page 60-Dr OP Goyal Kitab Mahal, Allahabad P1 12 Justice PB Gajendragadkar Ex Chief Justice of India --Law Liberty and Social Justice, Page 86 – Asia Publishing House India, p 5 13 A Grammer of Politics Preface to The Third Edition, Page 2 Prof Harold Laski p 5 14 Nehru A Political Biography-Michael Brecher, Page 511 P 6 15 The decision of the Supreme Court of India on Feby 27, 1967, on the Constitutional validity of the Seventh 1 ·16 17 18 19 20 21 22 [ 2 ] Amendment Act is also related to the question of the relative value of the Fundamental Rights and Directive Principles and the position of the Parliament in relation to these two chapters of Fundamental Rights and Directive Principles (Golak Math Case) рь The Judgements of the Supreme Court-Chiranjitlal Chau dharı Vs The Union of India and others (dated 4th Dec 1950), The State of Bombay and VFN Balsard (dated 25th May 1951) p 6 Basu-Commentary on the Constitution of India, Vol I Page 71 p 7 ibid p7 Supreme Court of India Case No 270 271, 1951 - The Supreme Court Report 1951 p 7 Lok Sabha debates-Ilth April 1955 Lok Sabha Debates 14th March 1955 p 8 Also refer to the majority view of the Supreme Court on the Constitutional Valıdıty of the Seventeenth Amendment Act as reported in the Hindustan Times, Indir March lat, 1967 P8 Speeches of Shri GB Pant Rajya Sabha debates 17th March 1955 and 19th and 20th April 1955 Shri Pataskar Law Mnis er 14th 15th March Parliamen tary debates, 1955 (for details please refer to the chapter V B Page 84) P8 Please refer in this regard the views of Ex Advocate General of Madras Shri S Mohan Kumaramangalam in 'Link 7th May 1967 Page 21 22 Parliament and the People in which he holds the view that people s well as represented by the Parliament must prevail and he cites the support of eminent authorities on the interpretation of the constitution such as Justice Frankfurter, Lord Halifax Justice Storey and sup ports the view of Chief Justice Wanchoo on the validity of the 17th Constitution Amendment Act P 9 Ex Chief Justice Gajendragadkar was also of this opinion -- refer to Chapter V, Liberty and Social Justice Harmonious adjustment Page 88 89 Law Liberty and Social Justice Asia Publishing House 1965 23 24 25 ·[ 3 ] "My point in mentioning some of these amendments into democracy and the rule of law cannot treat any proposition as absolute and any provision as infallıble and beyond the pale of modification If experience shows that some change has to be made democracy and the rule of law do not hesitate to make the channe, because it is the very essence of sociological juri prudence that like life, law itself must benefit by experience P 9 26 Ak Gopalan Vs The State of Madras Supreme Court, Reports 1950 p 10 27 Constitutional History of India Vidhya Dhar Mahajan, Page 271 P 10 28 Constituent Assembly Debates 13th December, 1948 pp 999-1001 Fundamental Rights Their Vature and Extent DN Banerjee p 206 P 12 29 Law Liberty and Social Justice-Justice Gajendragadkar, Page, 63 64 ! p 14 30 See The Supreme Court Reports, 1951, Vol II, Part V May, 1951, pp 525 33 P 15 31 Re quoted from our Fundamental Rights-Their Nature and Extent (As Judicially Determined) DN Banerjee pp 81- 82 P 16 32 Article 29(2) of the Indian Constitution p 17 33 See The Supreme Court Reports 1951, Vol II Part V, 1951 pp 525-33 regarding Supreme Court case No 270 271 p 17 34 Ibid p 18 35 Much controversial judgement of the Supreme Court of India on the Constitutional validity of the 17th Amendment Act is also regarding relation of Fundamental Rights and Directive Principles on one hand and Fundamental Rights and the scope of the Article 368 p 18 36 Socialistic aspiration of the Indian Constitution have been discussed in detail in Chapters to follow p 19 37 Quoied from Commentary on the Constitution of India Basu Third Edition Vol I, Page 25 Introduction p 20 38 Ibid 39 The majority decision of the Supreme Court on the Constitutional valıdıty of the 17th Amendment Act (27th Feb, 1967) also over emphasises the supremacy of the Fun P20 ·[ 4 ] p 20 40 41 42 P 22 43 44 Page 85 45 46 P 23 47 48 damental Rights and goes to the extent that Parliament has no right to amend the Constitution to infringe Funda mental Rights Motilal Vs State of Uttar Pradesh AIR 1931 Allahabad p 21 hameshwar Vs Province of Bihar AIR 1951 p 21 The Judgement of Supreme Court of India in Case No 270 of 1951 (The State of Madras Vs Shrimatı Champıkım Dorairajan)-Supreme Court Reports 1951 Vol II, Part V May, 1951 Ibid p 22 Re-quoted from Our Fundamental Rights - Their Nature and Extent (As Judicially Determined)-DN Banerjee, 22 Constituent Assembly Debates 29th November, 1948 p 23 Constituent Assembly Debates 29th November 1948 page 661 Jawaharlal Nehru s speeches 1949 53 Chapter, Equality and Backward classes Pages 517 519 p 25 Constituent Assembly Debates, 15th Nov., 1918, Vol VII No 6, page 400 p 27 Constituent Assembly Debates 15th Nov 403 p 28 Constituent Assembly Debates 15th November, 1948 Vol VII, No 6, page 421 p 29 The decision of the Supreme Court of India on the Constit utional Valıdıty of the 17th Constitutional Amendment Act (Golak Nath Case) also gues greater importance to the Fun damental Rights' n relation to Directive Principles and th19 proves that the apprehension of Prof K T Shah have proyed sound p 29 Lok Sabha Debates March 14, 1955 p 29 Ibid p 29 The 44th Amendment has also to be viewed in this con text Law, Liberty and Social Justice PB Gajendragadkar Ex Chief Justice of India pages 78 80 Ibid page 89 Chapter, Liberty and Social Justice Harmonous Adjustment 49 1948 page 50 51 52 53 54 P 30 53 P 30 56 P 31 ·[ 5 ] 7 Reference is here to the Objectives Resolution moved in the Constituent Assembly by Pt Jawahar Lal Nehru on 13 Dec, 1946 p 33 58 His views about the nature of the Indian Constitution as expressed, through the speeches in the Parliament at the time of the consideration of the Ist and IVth Constitution Amendment Bills created a better appreciation of the Con stitution and saved it from taking the turn which the deci sions of the courts gave, on important issues of Equality acquisition of property, its compensation and the conflict of the Fundamental Rights and Directive Principles etc p 33 59 The importance of the Objectives Resolution was acknow ledged even in the Constituent Assembly by its members eg Maulana Hasrat Mohani expresssd in the Constituent Assembly on 15th Nov, 1948 (Constituent Assembly Deba tes) page 418 Vol VII No 6 Our Prime Minister has repeatedly stated that the Constitution should be in confor mity with the 'ojectives Resolution not only recently but from the very beginning The Objectives Resolution 15 history and we stand by all the principles laid down in it 60 Nehru A Political Biography - Michael Brecher, page 138 61 The Federalist or The New Constitution (Edited by Max Beloff Oxford) No X page 43 This reference can be seen also on page 162 of-A Grammer of Politics H Laski p 35 62 A Grammer of Politics - H Laskı pige 176 P 35 63 Jawaharlal Nehru s speeches 1949 1953, Chapter Equality and the Backward classes page 523 24 64 Ibid page 531 p 35 65 Refer to the Text on the Resolution on Fundamental Rights and Economic Policy - sub-title Labour and Taxation and I spenditure Economic and Social Programme at Karachi Session of the Indian National Congress Aug 1931 The Text of the resolution has been included on (pages 82 86) of thus Book for reference The Text has been taken from Meliru - The First Sixty Years Dorothy Norman, Vol I p 36 P 33 P 33 P 33 page 249 250 ·120 121 122 123 124 125 126 127 128 1 10 ) damental nghts guaranteed P 74 For details please refer to the Introductory Chapter pages 17 19 P 75 Supreme Court Reports 1950 Vo I Part II & III April & May, 1950 pages l'1 113 P 76 The Supreme Court Reports, 1930 Vol I, Parts IL & III, April and Mar 1950 pp 309 323 P 76 The Supreme Court Reports 1950 Vol I Parts II & III April and Mlay 1950 pp 90 91 P 76 The Supreme Court Reports, 1950, Vol i Parts II & 111 April & May, 1950 pp 199-201 and also pp 90 91 P 77 The Supreme Court Reports 1950 Vol 1, purts II & III April and May 1950 pp 111 113 P 77 Ibid pp 111 113 P 78 Details of these cases have already been given in the previ ous pages of this chapter P 79 The latest controversial decision of the Supreme Court of India hy a narrow majority of one about the constitutional validity of the Sevnteenth Constitution Amendment Act is also related to the fundamental right of property P 80 The Lok Sabha Debates of 14th March 1955 P 81 Jawaharlal Nehru s Speeches 1949 1933 page 484 This sp eech was delivered while moving an amendment to Article 24 of the Draft Constitution Constituent Assembly, New Delhi September 10, 1949 P 81 Lok Sabha Debates 11 th April 1955 Column 4891 P 83 Lok Sabha debates 14th March 1955 P 84 Ibid P 84 Lok Sabha Debates 14th March, 1955 P 85 Parliamentary Debates Rajya Sabha 17th March, 1955 P 86 Ibid P 86 Parliamentary Debates, Rajya Sabha 17th March, 1955 P 87 See the Parliamentary Debates Rajya Sablia 20th April 1955 P 88 Lok Sabha Debates 14th Mar h 1955 p 89 Jawaharlal Nehru s Speeches in 1949 1953 pp 484 129 130 131 132 133 134 135 136 137 138 139 140 P 89 ·141 142 143 144 page 684 145 [ 11 ] Rajya Sabha Debates 19th March 1955 P 90 Jawaharlal Nehru s Speech-s 1919 1933 p 484 p 91 I aw Liber y and Social Justice by PB Gajendragadkar Chief Ju ice of India page 88 89 Chapter V Liberty and Social Justice Harmonious Adjustment p 92 The Constituent Assembly Debates 18 November, 1919 p 94 Maxwell on The Interpretation of Statutes Tenth Edition 1953 pp 44-49 p 94 Commentaries on the Constitution of the United States by Justice Story 5th Edition Vol 1 1905 pp 350 351 p 95, Commentary on the Constitution of India Basu Third Edi tion Vol 1 pp 43 Chapter Preamble P 95 ehru Jawaharlal Independence and After 1946-1949 pp 344 53 p 96 CA Debates 22nd Jan, 1917 page 319 CAD (Constituent Assembly Debates) 22nd Jan 1947 146 147 148 149 P 9 150 page 322 p 97 151 p 97 p 99, Ibid 152 For Complete Text of the Ohjectnes Resolution refer Constituent Assembly Debates 22nd January 1947 page 323 p 98 153 Jawaharlal Nehru s Speeches 1949 1953 page 532 Chapter Equality and tht Bachisard Classes The speech was delivered on May 29 1951 in the Parliement 154 Constituent Assembly Debates 25th November, 1949 pp 979 II This speech is a memorable one and should be refered as a whole for better appreciatınn of Social and Economic rights and their relation to directne princi ples P 100 155 Constatuent Assembly Debates of 19th Nov 494-95 156 Ibid 157 Commentaries on the Constitution of the United States 5th Fdition Vol 1 1907 pp 350-331 for details 150 The Supreme Cours Reporis, 1950 I ol I Parts II & III April and Vas 1950 pp 197 99 Judgment of Patanjah Sastri J 1948 page P101 p101 P102 p 103 ·189 190 191 P 123 P 123 P 124 192 p 124 193 P 124 194 [ 14 ] for adınssion in the Educational Institutions in the cantext of the Article 46 of the Constitution p 123 Constituent Assem oly D bates Monday 15th Vovember, 1948 Volume VII No 6 page 400 Ibid , 402, 403 Lok Sabha Debates March 14, 1955 Preventive Detention in India Dilemmas for Democrates David H Bayley in Studies in Indian D mocracy edited by SP Aiyar page 292 Studies in Indian Democracy edited by SP Aryar & R Srinivasan page 294 Preventive Detenition in India 'Dilem mas for Democrates David H Bayley Shri Madhu Limaye MP wanted in Lok Sabha to move a resolution for a Bill to seek the amendment of the consta tunon ly transferring articles 37 and 4) of Directive Prin ciples to the Chapter on Fundamental Rights so that people could seek remedy in a court of law if any state failed to impliment them Minister for State for education Bhag wat Jha Arad said though he agreed with the princi ple and spirit behind the Bill the country s resources were not adequate to give free education to all childern Hın dustan Times Weekly Sunday June 11 1967 page 6 Col This shows that those rights which state could not provide due to ins fficient resources were included in the Directive Principles Fur her it also proves that gradu ally the articles of directive principles will be transferred to the chap er of Fundamental Rights When the resources of the state are adequate to male rights of Directive Princi ples justiciable Studies in Indian Democracy edited by SP Ayiar page 733 Nehruism India s Revolution without fear Ibid Studies in Indian Democracy Organic Democracy Jaya prakash Narayan page 337 Studies in Inaian Democracy India's Revolution without Fear Taya Zinkın Nehrusm India's Revolution without fear page 746 p 125 In the case of Sajan Singh AIR 1965 SC 845 and Shan umn 2 P 124 195 196 197 P 124 p 124 p 125 198 199 ·[ is j karı Prasad s case AIR 1951 SC 458 (these references have been reproduced from the article of Shri S Mohan humara Mangalam former Advocate General Madras Amending Power in Constitution from 'Link Indian News Magazine April 2 1967) The Judgement of the SC by former Chief Jusitce of India Shrı Subbarao delivered on Feb 17 1967 reported in the Hindustan Times New Delhi Wednesday, March 1, 1967 P 125 200 P 125 201 202 P 126 203 The Supreme Court Reports, 1651 Vol II Part V May, 1951 Case No 271 of 1951 (Supreme Court) AIR 1951 Madras 120 ! p 126 AIR 1951 All 257 for hameshwar Singh Vs State of Behar refer to AIR 1951 Patana 91 For the case of Champakam Dorairajan Vs State of Madras refer to AIR 1951 Madras 120 For short critical comments on these cases refer to Law Liberty and Social Justice by Gajendra gadkar Chief Justice of India page 88 99 Quoted from Constitutional Government of India page 316 Writer M V Pylee Quoted from Constitutional Government in India by Pylee paged 316 17 chapter the Directive Principles Here reference is to the resolution on Fundamental Rights and Economic Policy adopted by AICC at its haranchi Session 1931 Quoted from Commentary on the Constitution of India by Durga Das Basu Third Edition Vol 1 Page 823 24 p 128 Shankarı Prasad Vs Union of India 1850-51 Court Case 284 p 198 As in First P 824 Comments of the author, Basu DD p 127 204 p 127 205 P 127 206 207 208 p 128 209 P 130 210 211 212 Refer to the Articles Amending power in Constitution by S Mohan humaramangalami in Link Indian News Magazine April 2, 1967 page 19 22, May 7, 67 p 21 22 April 16 p 15 16 Link Indian News Magazine June 11 1967 page 34-35 for the views of Prof DN Banerjee Prof of Political Science at the University of Calcutta P 129 Refer to the Text of the constitution of USA Refer to the Text of the Constitution of India P 130 Link Indian News Magazine June 11 1967 page 34 Col 3 Refer to the reporting of this case_(17th Amendment Act) The Hindustan Tures First Dak Edition March Ist 1967 page 1, Col 1, P ge 4 Col 5 Ibid Ibid Refer to the Hindustan Times New Delhi March Ist 1967 page 5 Col 4 213 P131 3 214 215 216 P132 P 132 p132 P 132 ·Ibid, P 132 P 134 p135 p 137 P 138 p 138 P 138 [ 16 ] 217 218 Ibid P 132 212 Hindustan Times March 1 1967 page 5 Col 3 p 133 220 Hindustan Times March 1 1967 page 5 Col 2 and 3 221 p 134 Hindustan Times March 1, 1967 Col 4 page 5 222 Ibid, Col 5 223 As reported in the Hindustan Times March 1, 1967 page : col 5 p 135 224 Kefer to the Article 'Amending Power In Constitution by SM humarımagalam former Advocale General Madras in 'Link April 2, 1967 page 21 col 1 P 136 225 Quoted from Amending Power in Constuution by humara Mangalam 'Link April 2, 1967 Page 22 col 1 226 Refer to Amending Power In Constitution humumang? lam in Link April 2 1967 page 22 col 3 227 Refer to Supreme Court & Fundamrptal Rights by Prof DN Banerjee Link June 11 1967 Page 34 col 1 228 Ibid, col 2 p 138 229 Refer to Supreme Court & Fundamental Rights by Prof DN Banergee in Link June 1] 1967 page 35 col 1 230 Refer to The Hindustan Times April 6 1967 page 4 col 3 Scope of Art 368 231 Refer to Supreme Court & Fundamental Right by Prof DN Banerjee page 35 col 2 in Link June 11 1967 p 139 232 Constitutionalism in India by SP Aiyar, in Studies in Indian Democracy edited by SP Aiyar R Srinivasan page 698 233 Lok sabha Debates of lith April 1955 As a member of Joint (Select) Committee of Parliament Shri NC Chaterjee had submitted a Minute of Disent on thc Constitution fourth amendment Bill 234 Lok Sabha Debates 11 April, 1955 Col 4890-4892 235 The Hindustan Times April 6 1967 page 4 col 3 Scope of Article 368 Reference to Supreme Court suggested p 141 236 Refer to page 335 336 of Our Fundamental Rights Their N ture and Extent by Dr DN Banerjee pages 338-335 and 336 237 Ibid 238 Refer to 'Supreme Court & Fundamental Rights by Prof DN Banerjee in ‘Link June 11, 1967 page 35 col ! 239 Jawaharlal Nehru s Speeches 1949 1953 page 493 p 142 210 Law Liberty and Social Justice by Gajendragadkar page 89 241 Law Liberty and Social Justice by Gajendragadkar page 63 64 242 Ibid P 139 p 139 P 141 P 141 P 141 P 141 P 142 p 142 P 142 P 143 ·Select Bibliography All India Congress Committee Reports 2 A Bunch of letters Jawahar Lal Nehru 3 An Auto Biography Jawahar Lal Nehru A Grammer of Politics Harold Laski 5 A History of Political Theory George H Sabine 6 Amending power in the Mohan Kumar S Mangalam con titution Former Advocate General of Madras 7 A Political Biography Michel Brecher 8 Before And After Independence Brights 9 Constituent Assembly Debates 10 Conversation on India and world Affairs Mende Tiber 11 Commentray on the constitution of India Durga Das Basu. 12 Constitution of India Text of the Indian constitution Published on behalf of the Government of India 13 Constitutional History of Ind13 Dr Vidya Dhar Mahajan 14 Constitutional History of India Dr Keith 15 Constitutional Government in India MV Pylee 16 Commentaries on the constitution of United States Justice Stoery 17 Discovery of India Jawabar Lal Nehru. 18 Democracy in India and the Judicial Process V Hidayatullah 19 Fundamental Rı,hts and Constitutional Remedies O P Aggarwala 20 The Federalist or the new constitution (Edited by Max Beloff Oxford University) 21 Glimpes of World History Jawahar Lal Nehru 22 The History of the Indian National Congress Vol I (1885 1935) Dr Pattabhı Sitarammaya 23 The History of the Indian National Congress Vol II (1935-47) Dr Pattabhi Sitarammaya 24 The Hindustan Times New Delhi, India 25 India and the World Jawahar Lal Nehru ·2 ) 26 Indian Annual Register 27 International Law, Vol I Schwarzenherge 28 International Law Charles G Fenwick 29 Important speeches of Jawahar I al Nehru (1922 1946) Bright JS 30 Important Speeches of Jawahar Lal Nehru (1946-1957) 31 India and After Jawahar Lal (1946 1919) 32 Jawahar 1 al Nehrus Speeches (1949 1953) Publication Division of Government of India 33 Link, News Magazine of India 34 Life of Jawahar Lal Nehru Eright JS 35 Law, Liberty and Social Justice PB Gajendragadkar 36 Lok Sabha Debates 37 Mahatma Gandhi The 1 ast Phase Pyarelal 38 Mahatna Tendulkar DG 39 Nehru the first sixty years Vol I Dorothy Norman 40 Nehru the first sixty years Vol II Dorothy Norman 41 Our Fundamental Rights (Their nature and extent) as Judicially determined DN Banerjee 42 On the Interpretation of Statutes Maxwell 43 Rajya Sabha and Loksabha debates 44 Reports of Supreme Court of India 45 Speeches and Documents on the Indian Constitution (1921 47) by Sir Mawice Gwyer and A Appadori 46 Studies in Modern Indian Political Thought An Introduction of Gandbi Dr OP Goval 47 Select Constitutions Dr A G hapur 48 Studies in Indian Dernocracy Edited by SP Aiyar and R Srinivas in 49 Supreme Court and fundamental Rights Power to amend to constitution DN Banerjee Towards Freedom Jawaharlal Nehru All India Reporter 50 51

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