Documents

SSRN-id1917290

Description
4
Categories
Published
of 16
All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
Related Documents
Share
Transcript
  Electronic copy available at: http://ssrn.com/abstract=1917290 FUNDAMENTAL RIGHTS V. DPSP- MINERVA MILLS REVISITED   INTRODUCTION Overview of the paper The Constitution of India has issued two mandates to the Parliament, the Legislatures of the States and to all the governmental machineries- firstly, not to take away or abridge certain rights described as Fundamental Rights and secondly, to apply certain principles described as Directive Principles of State Policy. 1  The Fundamental Rights are mostly of individual character and are primarily to protect the individuals against arbitrary state action and are intended to foster the ideal of political democracy. However, the Constitution makers had realized the impracticality of adherence to mere abstract democratic ideals sans any political, economic and freedom and security in addition to the social freedom, which led to the enunciation of Directive Principles of State Policy. 2  As was rightly argued upon by J. Krishna Iyer, “the deeper roots of our social system lie  buried in our struggle for independence and the fresh shoots of our emerging order finds  provisional expression in our Constitution.” 3  The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement. Yet, despite the permeation of the entire Constitution by the aim of national renascence, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and Directive Principles, respectively. 4  These two part shave been termed the “Conscience of the Constitution” 5  which necessitated a coherent and socially relevant understanding of their interrelationship. With initial glitches in the understanding, the position was clarified by the Supreme Court in the case of  Minerva Mills v. Union of India. 6   The author in 1  Shailja Chander, JUSTICE VR KRISHNA IYER ON FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES, 1 st  ed. 2003 (reprint), p 52. 2  Ibid. 3  Justice VR Krishna Iyer, JUSTICE AND BEYOND, 1980, p 54. 4  Granville Austin, THE INDIAN CONSTITUTION- CORNERSTONE OF A NATION, 14 th  reprint 2009, p 50. 5  Ibid. 6  AIR 1980 SC 1789.  Electronic copy available at: http://ssrn.com/abstract=1917290 the paper aims at highlighting the significance of the decision in the case and its relevance in the modern jurisprudential discourse of rights and duties. Research Questions 1. Whether the relationship between Part III (Fundamental Rights) and Part IV (Directive Principle) of the Constitution as provided in the decision of the Minerva Mills case is in sync with the ideology of the Constitution framers? 2. Whether the decision of the Minerva Mills case still holds relevance in the present context? Hypothesis The decision of the Minerva Mills case laid down the relationship between Part III and Part IV which is in sync with the ideology of the Constitution framers and still holds relevance in the present context. UNDERSTANDING FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES Understanding Fundamental Rights The Fundamental Rights of the Constitution are those rights of citizens, or those negative obligations of the state not to encroach on individual liberty. 7  The Fundamental Rights guaranteed under the Constitution contain those basic rights “sans which societal survival would eventually be a mirage” 8  and which cannot be taken away by ordinary laws. 9  The purpose of enumerating these basic rights in the Constitution “is to safeguard the basic human rights from the vicissitude of political controversy and to place them beyond the reach of the political parties who, by virtue of their majority, may come to form the government at the Centre or in the State.” 10  The entrenchment of the rights has dual aspect- firstly, they confer justiciable rights on the people which can be enforced through the courts against the government and secondly, they 7 Supra note 4 at p 51. 8  VR Krishna Iyer, Access To Justice, 1 st  ed. 1993, p 1. 9  Prof. MP Jain, INDIAN CONSTITUTIONAL LAW, 5 th  ed. (reprint) 2008, p 828. 10   Chairman, Railway Board v. Chandrima Das  [AIR 2000 SC 988].  constitute restrictions and limitations on government actions whereby government cannot take any action, administrative or legislative, which infringes Fundamental Rights. 11  The rights- duties debate is age old and various philosophers have enumerated diverse theories on the subject of importance of rights in the society and its requirement in a non- rights  based society. Allen Buchanan in his article “What is so special about rights” has addressed the issue whether the concept of right has certain unique features which make them so valuable as to  be virtually indispensable element of any acceptable social order . 12  He concludes that rights might not be indispensable but are necessarily significant for the society as it provides a ground for getting compensated, avoids any excuses for non- performance, provides a limit to the ‘morally optimal’ and provides incentives for growth without frustrating individual goals and life  plans. 13  The concept of Human rights protects individuals against the excesses of the state and represents an attempt to protect the individual from oppression and injustice and in modern society it is widely accepted that right to liberty is the very essence of a free society and it must  be safeguarded at all times. 14   Jurisprudential theorization The srcin of basic and inalienable rights guaranteed to the individuals can be traced back to the natural law philosophers who expounded over such inherent human rights and sought to  preserve these rights by propounding the theory of “social compact”. 15  The Natural Law ideals  paved the way for rising tide of individualism, which culminated into English Revolution of 1688, French Revolution of 1789 and the American Declaration of Independence followed by Renaissance and Reformation leading to spiritual emancipation of the individual. 16  The French Revolution declared that “the aim of political association is the conservation of the natural and inalienable rights of man.” 17  Locke contributed to the emancipation of individuals in a distinct manner by placing the individuals in the centre and investing in him the inalienable rights by stating that “man being born, as has been proved, with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the Law of Nature, equally with any 11 Supra note 9. 12  Allen Buchanan, 2 Social Policy & Philosophy  61-75 (1984). 13  Ibid. 14  Supra note 9 at p 827. 15  Ibid. 16  W. Friedmann, LEAGAL THEORY, 5 th  ed., 4 th  Indian reprint 2008, p 117. 17  Supra note 14.  other man, or number of men in the world, hath by nature a power not only to preserve property- that is his life, liberty, and estate…” 18  Rights have been declared to be a pervasive concern of modern analytical jurisprudence wherein two competing theories regarding nature of rights are prevalent- one which emphasizes on will or choice and other emphasizing on other interests or benefits. 19  The will or choice theory recognizes maximum degree of individual self assertion, moral individualism and considers that “individual discretion is the single most distinctive feature of the concept of rights”. The interest theory, on the other hand, argues that purpose of rights is not to protect individual assertions but certain interests and rights are the benefits secured for persons by rules regulating relationships. 20  Salmond has defined rights as interests protected by rules of right that is by moral or legal rules and espoused right to always entailing a duty that others ought to provide him with it, or that ought not to prevent him getting it, or merely that it would not be wrong for him to get it. 21  Henry Shue considered rights to be providing the rational basis for justified demand, and basic rights are everyone’s minimum basis for reasonable demands upon the rest of the humanity, the denial of which is unacceptable. 22   Evolution of Fundamental Rights in the Indian Constitution The demand for the Fundamental Rights can be traced back to the period of formation of Indian National Congress in 1885 when Indians wanted to end the discrimination inherent in the colonial regime and desired the same rights and privileges as enjoyed by their British masters. 23  The first explicit demand was made in the Constitution of India Bill, 1886 followed by Annie Besant’s Commonwealth of India Bill, 1925 which was reiterated firmly by the Nehru Committee in 1928 which asked for such Fundamental Rights which could not be withdrawn. 24  The Sub- committee on Minorities in 1930 enunciated a comprehensive draft declaration on Fundamental Rights and Dr. BR Ambedkar in the meeting also focused on the need for inclusion of sanctions for the enforcement of the rights, including a right to redress in case of violation. 25  Finally, the Sapru Committee in 1945 recommended that the declaration of Fundamental rights 18  MDA Freeman, LLOYD’S INTRODUCTION TO JURISPRUDENCE, 8 th  ed. 2008, p 146. 19 Ibid at p 394. 20 Ibid at p 395. 21  PJ Fitzgerald, SALMOND ON JURISPRUDENCE, 12 th  ed., Indian Economy reprint 2009, p 40. 22  Henry Shue, BASIC RIGHTS, SUBSISTENCE, AFFLUENCE & US FOREIGN POLICY, 2 nd  ed. 1980, p 19. 23  Supra note 4 t pp 52- 53. 24  Supra note1 at p 53. 25  Ibid at p 54.
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks