DPSP AND FUNDAMENTAL RIGHTS CONTROVERSY

 

The Indian constitution is a unique document that lays down the fundamental principle and values that governs the state one of the critical features of Indian constitution is fundamental rights and directive principles of state policy covered under article 12-35 of part iii and article 35-51 of part iv in Indian constitution.

DPSP AND FUNDAMENTAL RIGHTS: STRIKING A BALANCE

Fundamental rights are the rights which gives guarantee to the rights and freedom of people and citizen that ensures personal liberty and dignity subject to some restriction. On the contrary the DPSP’s are the guidelines which must be followed by the lawmakers while formulating the law. This novel feature was adopted from Irish constitution which is copied from the Spain.

Difference Between Fundamental Rights and directive principles of the state policies

1. Constitutional Provision:
   DPSP is covered under Part IV of the Indian Constitution, while FR is covered under Part III.
2. Nature of Provision:
   DPSP sets guidelines and principles for the government to follow in making laws and policies, while FR prescribes fundamental rights and liabilities of citizens.
3. Instrument of Institution:
   DPSP is an instrument for the institution of the government, while FR places limitations upon state actions.
4. Enforcement:
   DPSP is not enforceable by the courts, while FR is enforceable by the courts.
5. Type of Provision:
   DPSP consists of positive commands, while FR consists of negative liabilities.

Relationship between the fundamental rights and DPSP’s

The relationship between the two has be well interpretated by the following case laws which are as follows:

Champakam Dorairajan Vs State of Madras
In the instant case madras government passed an order which fixed quotas for admission to engineering and medical colleges under article 15(4). The order was challenged on the grounds of 15(1) of which government replied that the order was passed under article 46. However, the court held that the DPSP are subsidiary to the fundamental rights because the latter are enforceable and the directive principles cannot override the fundamental rights and held order was invalid.

Re Kerala Education Bill
The Re Kerala Education Bill case was about a law that required all private schools to be taken over by the government. Some schools challenged the law, saying it violated their right to run their own schools.
The court said that Directive Principles of State Policy (DPSPs) cannot override fundamental rights, but the court can use both principles to interpret the law. The court said that when interpreting the law, it should try to find a way to balance both DPSPs and fundamental rights as much as possible.

Golak Nath vs State of Punjab
In this landmark case, the Supreme Court held that Parliament cannot amend the fundamental rights of citizens. The petitioner challenged the validity of the Constitution (17th Amendment) Act, 1964, which sought to take away the right to property as a fundamental right. The Court held that the amending power of Parliament under Article 368 did not extend to the fundamental rights enshrined in Part III of the Constitution. However, after this case, the government introduced the 24th and 25th Constitutional Amendments in 1971, which added Article 31C to the Constitution. Article 31C provided that any law made to implement the Directive Principles of State Policy (DPSP) would not be void on the ground of inconsistency with the fundamental rights.

Keshavananda Bharti Vs State of Kerala
This case is famous for introducing the concept of the "basic structure" of the Constitution. The petitioner, a spiritual leader, challenged the Kerala Land Reforms Act, 1963, which imposed a ceiling on landholdings. The Supreme Court held that the DPSPs are an integral part of the Constitution and must be given due importance. The Court further held that the power of Parliament to amend the Constitution was not unlimited and could not be used to violate the basic structure of the Constitution, which includes fundamental rights. The Court held that Article 31C, which had been introduced after the Golak Nath case, was unconstitutional. However, after this case, the government introduced the 42nd Constitutional Amendment in 1976, which widened the scope of Article 31C to include not only laws made to implement the DPSPs but also laws made for securing the "socialist" objectives of the Constitution.

Minerva Mills vs Union of India (1980):
In this case, the Supreme Court attempted to strike a balance between fundamental rights and DPSPs. The petitioner challenged certain provisions of the Constitution (42nd Amendment) Act, 1976, which had curtailed the power of judicial review and had given wider powers to the Parliament to amend the Constitution. The Supreme Court held that fundamental rights and DPSPs are both integral parts of the Constitution and that one cannot be considered superior to the other. The Court held that any law made to implement the DPSPs must not violate the basic structure of the Constitution, which includes fundamental rights. The Court also held that the power of judicial review is an essential feature of the Constitution and cannot be taken away by the Parliament. The Court struck down the offending provisions of the 42nd Amendment, thereby upholding the supremacy of the Constitution.

Current scenario

The sequence of who will prevail first is as follows-

1. Fundamental rights, except for the 14th and 19th.

2. Directive Principles of State Policy (DPSP) under article 39(b) and (c).

3. Other fundamental rights.

4. Other DPSP.

Conclusion
The controversy surrounding DPSP and fundamental rights in the Indian Constitution has been resolved by balancing both principles.

References

I.C. Golak Nath And Ors. vs State Of Punjab And Anr. on 27 February, 1967 (indiankanoon.org)
Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973 (indiankanoon.org)
Minerva Mills Ltd. & Ors vs Union Of India & Ors on 31 July, 1980 (indiankanoon.org)
https://blog.ipleaders.in/difference-between-fundamental-rights-and-directive-principles
https://www.legalbites.in/directive-principles-and-fundamental-rights
In Re: The Kerala Education Bill, ... vs Unknown on 22 May, 1958 (indiankanoon.org)
Difference between Fundamental Rights and Directive Principles of State Policy & Their Comparisons (byjus.com)
Fundamental Rights, Directive Principles and Fundamental Duties of India - Wikipedia
Home - Canva

Hart and Fuller Debate: The Relationship Between Law and Morals

Throughout history, there has been a debate about the relationship between law and morals. In different periods, societies have described this relationship in various ways. This essay will explore the Hart and Fuller debate, which is a famous discussion about the relationship between law and morals in modern times. Before that, we will briefly describe the historical development of the relationship between law and morals.

• Ancient Times

In ancient India, Hindu law had no distinction between law and morals. Later, in Mimansa, certain principles were laid down that distinguished between obligatory and recommendatory actions. In ancient Greece, natural law was based on morals. The same was true for ancient Rome, where natural law was also based on morals.

• Middle Ages

During the Middle Ages, the church was the main source of law in Europe, and its laws were based on morals (the Bible).

• 19th Century

In the 19th century, the analytical school of thought emerged, which believed that law had nothing to do with morals. Jeremy Bentham, a famous philosopher, solved this question by stating that law has the same center as morals but not the same circumference.

• Modern Times

In modern times, there is a clear distinction between law and morals. However, the relationship between the two is still debated. The Hart and Fuller debate is an example of this.

H.L.A. HART And LON. L FULLER

The controversy between positivism and naturalism revolves around the question of what law ought to be versus what law as it is. This debate began with H.L.A. Hart's journal "Positivism and the Separation of Law and Morals", to which Lon L. Fuller responded with "Positivism and Fidelity to Law". The ongoing debate between these two legal theorists continued with their respective books "The Concept of Law" and "The Morality of Law".
Hart's concern was that law and morals are distinct, and he gave three critiques of natural law theory. First, he argued that John Austin's theory of command was a better explanation of the nature of law than natural law theory. Second, he introduced the concept of "penumbra", which refers to the idea that there are areas of law where there is no clear answer and where judges must use discretion to determine what the law is. Finally, he argued that there may be morally bad laws, but that does not mean they are not laws.
Fuller, on the other hand, argued that judges should decide what the law is based on a basic code of rationality, rather than solely on what the law ought to be. According to Fuller, a law is not a law if it does not follow this basic code. This basic code is not necessarily based on morality, but it is grounded in reason.

Nazi informer case :

The defendant reported her husband for making derogatory remarks about Hitler during WWII, resulting in his death sentence. After the war, the wife was found guilty of using Nazi laws to deprive her husband of his freedom. The judge who sentenced the husband was acquitted.

Hart Views:

• He argued that the Nazi laws were valid because they were created and enforced by the state.
• From a legal positivist perspective, the morality of the Nazi laws is irrelevant if they were created and enforced according to the rule of recognition.

Fuller Views:

• He argued that the Nazi laws were invalid because they violated fundamental moral principles.
• From a natural law perspective, the Nazi laws were unjust and immoral because they violated the principles of human dignity, equality, and respect for individual rights.
  

Shyam Chouksey case (2017):

the Shyam Chouksey case in India addressed the mandatory playing of the national anthem in cinema halls. 

The Supreme Court drew on the legal debate between H.L.A. Hart and Lon Fuller, citing Fuller's principles of promoting social goals and procedural fairness. Some criticized the decision for violating individual freedom.

Conclusion

The debate about the relationship between law and morals has occurred throughout history. The Hart and Fuller debate is an example of this tension. Hart says law and morals are different, while Fuller thinks a law must follow basic morality to be valid.

References

Hart–Fuller debate - Wikipedia
B.N. Mani Tripathi

http://www.ijlljs.in/wp-content/uploads/2017/04/Jurisprudence_draft.pdf

https://lawogs.co.in/index.php/2021/12/22/morality-and-law-hart-fuller-debate/

https://blog.ipleaders.in/all-about-law-and-morality/

Article 12 in The Constitution Of India 1949

The term "state" has different meanings depending on the context in which it is used. According to the Cambridge dictionary, a state is defined as a part of a large country with its own government, such as in Germany, Australia, or the US. However, in the Constitution of India, the term "state" has a much wider meaning, which is defined under Article 12 and 36 respectively. Article 12 is related to fundamental rights, whereas Article 36 is related to directive principles of state policy. In this article, we will delve deeper into the various interpretations and implications of the term "state" in the Indian context.

Article 12 Under Part III of The Constitution Of India 1949 

Definition 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.

Meaning

Article 12 of the Indian Constitution is a unique provision that expands the definition of "State," which includes the following.

1. The Government and Parliament of India,
   
   
   This refers to the central government of India, which comprises of the President, Vice-President, Prime Minister, Cabinet Ministers, and other government officials. The Parliament of India is made up of the Lok Sabha (House of the People) and the Rajya Sabha (Council of States). Additionally, all departments established by the central government are also included under this definition.
   
   
2. The Government and Legislature of each state in India,
   
   
   This point refers to the state governments of India, which have their own elected Chief Ministers, Council of Ministers, and State Legislatures. It also includes the Union Territories of India.
   
   
3. Local authorities
   according to General Clauses Act section 3(31) “local authority” shall mean a municipal committee, district board, body of port Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund. 
   
   
4. Other authorities,
   It has been interpreted by various case laws some of them are as follows-
   

University of Madras v. Shanta Bai (1954)-

The court applied the principle of ejusdem generis, which means "of the same kind and nature," and held that only those authorities performing government or sovereign functions are covered under the ambit of the state. Hence, the University of Madras is not considered a state in the case of University of Madras v. Shanta Bai (1954). However, this approach to interpretation was rejected in the case of Ujjam Bai v. State of Uttar Pradesh (1963).

Rajasthan Electricity Board v. Mohan Lal (1967), 

In the case of Rajasthan Electricity Board v. Mohan Lal (1967), the court held that the term "other authority" would include all authorities created by the constitution or statute, and that such authorities need to be engaged in performing government or sovereign functions. Based on this interpretation, the court held that a university is also a state.

Som Prakash Rekhi vs Union Of India(1980)

The question in this case was whether Bharat Petroleum (BPCL), a company acquired by the central government, is considered a "State" as defined in Article 12 of the Constitution, even though it is registered under the Company Act.

In the instant case, the Supreme Court held that Bharat Petroleum (BPCL), is considered a "State" as defined in Article 12 of the Constitution. Further, The court has laid down tests to determine if a body is considered a State under Article 12, including:

• government holding the entire share capital

• state financial support and control over management

• deep and pervasive state control

• state-conferred or protected monopoly status

• performing important public functions related to government

• transfer of a government department to the corporation.
  

R.D. Shetty vs airport Authority of India (1979)

the Supreme Court of India held that an entity could be considered an "authority" under Article 12 of the Indian Constitution if it is a government agency or instrumentality, regardless of its legal form. As a result, the International Airport Authority of India was considered a "State" under Article 12 and was bound by the fundamental rights guaranteed under the Indian Constitution. Further, Justice P.N Bhagwati gave 5 Point test This is a test to determine whether a body is an agency or instrumentality of the state and goes as follows –

1. Financial resources of the State, where State is the chief funding source i.e. the entire share capital is held by the government.
2. Deep and pervasive control of the State
3. The functional character being Governmental in its essence, meaning thereby that its functions have public importance or are of a governmental character.
4. A department of Government transferred to a corporation.
5. Enjoys “monopoly status” which State conferred or is protected by it.

Zee Telefilms Ltd. & Anr vs Union Of India & Ors (2005)

Fact in Issue: Whether the Board of Cricket for Control in India (BCCI) is a 'State' under Article 12 of the Constitution of India?

The Supreme Court applied the tests laid down in R.D. Shetty vs International Airport Authority of India (1979) to determine whether BCCI is an instrumentality of the State and concluded that-

• The government's control over BCCI was not sufficient to make it a 'State'.

• BCCI did not receive significant financial assistance from the government.

• BCCI's monopoly status in the field of cricket did not make it a 'State' as it was not performing a public duty.

• BCCI's activities were primarily for commercial purposes and not for the benefit of the public.

Therefore, in the instant case held that BCCI is not a 'State' under Article 12.

A.R Antulay Vs. R.S Nayak(1988)

In the instant case, the Supreme Court of India held that the judiciary is considered a state while performing legislative and executive functions. This case reaffirmed the principle of separation of powers and emphasized the importance of maintaining the independence of the judiciary. However, in the case of Rupa Hurra vs Ashoke Hurra it was held that judiciary doesn't fall under the ambit of Article 12.

Conclusion

The word "state" has different meanings in different situations. In India's Constitution, for the purpose of fundamental rights, "state" is defined in Article 12 (Part III) to include the Indian Government and Parliament, state governments and legislatures, local authorities, and other authorities. Courts have established guidelines to decide whether an organization can be considered a "state.

References

Indian Kanoon - Search engine for Indian Law

Article 12 and 13 as the basis of Fundamental Rights  - iPleaders

'State' Under Article 12 of the Constitution - Drishti IAS

Analysis of the airport authorities under Article 12 of the Indian Constitution - iPleaders

India Code: General Clauses Act, 1897

Fundamental rights in India - Wikipedia

A writ is a legal document that is issued by the Supreme Court to direct a person or authority to take a specific action. These writs serve as legal orders to protect the fundamental rights of citizens from being violated. According to Collins Dictionary, a writ is a legal document that instructs a person to do a particular thing. This means that a writ can be used to compel someone to take a specific action, such as to stop violating someone's rights or to perform a particular duty.

Who Can Issue A Writ?

Writs can be issued by the Supreme Court of India under Article 32 (for fundamental rights) of the Indian Constitution and by the High Courts of India under Article 226 (for fundamental rights as well as constitutional rights) of the Indian Constitution.

Against Whom A Writ Can Be Issued Under Article 32 ?

Article 32 empowers the Supreme Court to issue writs for the enforcement of fundamental rights guaranteed by the Constitution against any person or authority who violates an individual's fundamental rights, including government authorities, private individuals/entities, or persons working under government authority.

Types Of Writs-

There are indeed five types of writs that can be issued under Article 32(2) of the Indian Constitution, which are:

1. Habeas Corpus,
2. Mandamus,
3. Prohibition,
4. Quo Warranto,
5. Certiorari.

Habeas Corpus -

Habeas Corpus is a legal term that comes from England and means "you may have the body" in Latin. It's related to Article 21 and 22 of Indian Constitution. Essentially, it's a writ that allows a person who's been arrested or detained to appear before a judge or court to ensure that their detention is legal and to protect their fundamental rights. 

For example, if someone like Mr. X is arrested and his family believes that he's being held without a good reason, they can use a writ of Habeas Corpus to require the police to give evidence for his detention. If the judge determines that the detention is unjust, then Mr. X will be released. However, if the judge decides that there are good reasons for Mr. X's detention, then he'll have to stay in custody.

Circumstances When Habeas Corpus Cannot be Issued: 

• The detention is lawful.
• The case is being prosecuted for failure to comply with a legislative or judicial mandate.
• A competent court authorized the detention.
• The jurisdiction of the court on detention is ultra vires
  

Some Important Landmark Judgements-

ADM Jabalpur v. Shivakant Shukla, also known as the Habeas Corpus case, was decided by the Indian Supreme Court on April 28, 1976, by a bench of five judges, namely, Chief Justice A.N. Ray, and Justices H.R. Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati.

The Supreme Court's verdict in the Habeas Corpus case was that the writ of Habeas Corpus could not be suspended even during an emergency. However, by a majority decision of 4:1, the court held that during an emergency, fundamental rights, including the right to life, could be suspended. Justice H.R. Khanna was the lone dissenter in the case, and his judgment is widely regarded as a landmark in the history of Indian jurisprudence.

(In 2017, the Indian Supreme Court made a decision in a case called K.S. Puttaswamy v. UOI. They decided to overrule a previous decision that was made in a case called ADM Jabalpur. Justice D.Y. Chandrachud, along with three other judges (Justice J.S. Khehar, Justice R.K. Agarwal, and Justice S. Abdul Nazeer) stated that the ADM Jabalpur case was wrong or mistaken.)

Kanu Sanyal vs District Magistrate Darjeeling, the Supreme Court of India held that the detention of Kanu Sanyal was illegal and that the writ of Habeas Corpus was a fundamental right that could not be suspended even during a state of emergency.

Rudal Shah vs State of Bihar, the Supreme Court held that Habeas Corpus is a fundamental right and a powerful remedy to secure the release of a person who has been unlawfully detained. The court also ruled that the writ can be filed not only by the detainee but also by any person acting on their behalf, widening its scope. This decision established important legal principles that guide courts in matters of personal liberty and fundamental rights.

State of J&K v. Mian Abdul Qayoom, Justice D. Y. Chandrachud has emphasized the vital importance of the writ of Habeas Corpus in protecting individual liberty and upholding the rule of law. He has stressed that the writ is a precious and undeniable feature of the legal system and that it plays a critical role in preventing the abuse of power by the State. According to him, the writ of Habeas Corpus is not only a procedural safeguard but also a substantive right essential for the protection of individual freedom and dignity.

Conclusion-

Habeas Corpus is a legal writ that protects an individual's fundamental rights by ensuring that their detention is legal.. It is a fundamental right and plays a critical role in preventing abuse of power by the state. The writ can be filed not only by the detainee but also by any person acting on their behalf.

References-

Additional District Magistrate, ... vs S. S. Shukla Etc. Etc on 28 April, 1976 (indiankanoon.org)
Kanu Sanyal vs District Magistrate, Darjeeijng ... on 11 September, 1973 (indiankanoon.org)
Rudul Sah vs State Of Bihar And Another on 1 August, 1983 (indiankanoon.org)
Mian Abdul Qayoom vs State Of J&K And Others on 7 February, 2020 (indiankanoon.org)
Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018 (indiankanoon.org)
Writ of Habeas Corpus: History, Scope, and Landmark Judgements (legalbites.in)
What is Habeas Corpus and how to use it - iPleaders
Habeas Corpus - Features, Cases, UPSC Notes for Polity. (byjus.com)
Constitution of India - Wikipedia
Lakxmikant
M.P. Jain
Writ: Definition in Law, Types, and Examples (investopedia.com)

Communist Theory of Law- Karl Heinrich Marx

Karl Heinrich Marx was a 19th-century German philosopher, economist, historian, sociologist, political theorist, journalist, critic of political economy, and socialist revolutionary. He was born on 5th May, 1818, in Germany. He studied Law and Philosophy at the University of Berlin and completed his Ph.D. in 1841. He has been described as one of the most influential figures in human history, and his work has been both praised and criticized. His contributions to economics laid the groundwork for some current theories about labour and its relationship to capital. Many intellectuals, labour unions, artists, and political parties worldwide have been influenced by his work, often modifying, or adapting his ideas. He is typically cited as one of the principal architects of modern social science. He died on 14th March, 1883, at the age of 64. Some of Marx's notable works include -

"The Communist Manifesto", which was published in 1848,
"Das Kapital", which was published in four volumes between 1867 and 1883.

Communist Theory of Law

 "Communism is a theory or system of social organization in which all property is owned by the community and each person contribute ruins according to their ability and needs"

Origin and definition of the word "Communism"- 

The term "communism" comes from the Latin word "communis," meaning "common" or "universal." According to Collins dictionary, communism is "the political belief that all people are equal and that workers should control the means of producing things."

Marxism

Communist theory was created by Karl Marx and Friedrich Engels in the 19th century. It helps us understand how society works and how different groups of people interact with each other. This theory is also called Marxism, and it focuses on three important things: social class, conflict, and capitalism.

Marxism's Goals 

• To improve conditions for the poor, suppressed, and working class

• Opposition of Austin's Positivism theory

• Marxist theory of law and its view on social inequality

Conflict Theory 

Marxism is a theory that highlights the importance of conflict in shaping social and economic relationships. It's often referred to as a conflict theory because it emphasizes the struggle between different classes in society as the driving force behind historical change. Marx believed that various factors such as material, economic, social, and environmental conditions influence social development.

Marx's Two Classes: Bourgeoisie and Proletariat

Marx divided society into two main classes: 

• Bourgeoisie

  The bourgeoisie were the wealthy landowners and capitalists who owned the means of production.

• Proletariat

  The proletariat were the working class who sold their labor for wages.

Marx believed that the inequalities between these two classes would eventually lead to conflict, as the bourgeoisie sought to maintain their power and wealth at the expense of the proletariat.

Marxism and the Law

Marx's theory of law also reflected his view that the legal system was a tool of the ruling class. He argued that the law was used to protect the interests of the bourgeoisie and perpetuate social inequality. He believed that true justice could only be achieved by abolishing the capitalist system and creating a society in which all property was owned by the community and each person contributed according to their ability and needs. In the Marxist theory of law, the law is seen as a tool that serves the interests of the ruling class and perpetuates social inequality.

Criticism 

• Oversimplification of Human Society: It is believed that his theory is too simple and does not fully explain all aspects of human society. It ignores many factors that influence people's behavior, such as culture, beliefs, and individual differences.

• Neglect of Culture, Individual Freedom, and Beliefs: It is argued that his theory overlooks important aspects of human life, such as culture, individual freedom, and personal beliefs. These factors have a significant impact on people's lives and should be considered in any theory of society.

• Criticisms of Marx's Predictions: It is argued that his predictions about the collapse of capitalism and the rise of socialism have not come true, and that his ideas are not relevant in today's world.

• Debates Over Collective vs. Individual Interests: There are also debates over whether Marx's emphasis on collective interests over individual ones is valid. Some argue that individuals should be free to pursue their own interests, while others believe that society as a whole should be considered.

• Concerns About Violence and Government Control: There are concerns about the association of his theory with violence and totalitarianism. His ideas could be used to justify government control and the suppression of individual rights

Conclusion 

Karl Marx developed the theory of communism and Marxism, focusing on the conflict between the bourgeoisie and proletariat. His work has been both influential and controversial, with criticism including oversimplification and association with violence. Despite this, his ideas continue to inspire new generations of thinkers seeking to transform society.

References

Communism - Communism after Marx | Britannica

Lec 9-Jurisprudence(3rdSem).pdf (patnalawcollege.ac.in)

Karl Marx - Wikipedia

Karl Marx - Marxist Jurisprudence - Indian Law Portal

Marxism - Wikipedia

Marxist criticism - Oxford Reference

Marxist Criticism - Writing Commons

Marxism | Poetry Foundation