Former CJI Justice TS Thakur committed two great mistakes in Triple Talaq matter: (1) allowed Muslim Personal Law Board & Jamiat-Ulema-E-Hind as main respondents and (2) not issued notices to Ministry of Women & Child Development, Nation Women Commission, Ministry of Minority Affairs & National Minority Commission.
Because Triple Talaq matter is related to Ministry of Women & Child Development, Nation Women Commission, Ministry of Minority Affairs & National Minority Commission.
Unfortunately CJI Justice J.S. Khehar not corrected the mistakes done by Justice T.S. Thakur and even committed another mistake by giving maximum time to the NGO Muslim Personal Law Board thus indirectly declared it as the official spokesperson of Muslim Community.
It will create worse if some will form All India Hindu Personal Law Board or All India Christian Personal Law Board and will start opposing any changes in the customs and rituals. PFA my written statement.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
INTERLOCUTORY APPLICATION NO 19 OF 2016 IN SMW (C) NO 02 OF 2015 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF: MUSLIM WOMEN’S QUEST FOR EQUALITY …PETITIONER VERSUS JAMIAT-ULMA-I-HIND … RESPONDENT
WRITTEN SUBMISSION ON BEHALF OF APPLICANT: ASHWINI KUMAR UPADHYAY S/O SH. SURESH CHANDRA UPADHYAY, OFFICE AT: 15, NEW LAWYER CHAMBERS, SUPREME COURT OF INDIA, NEW DELHI-1
QUESTION OF LAW
Whether the Triple Talaq, Polygamy & Halala is matter of faith or matter of marriage, succession and like matters; Whether the Triple Talaq, Polygamy & Halala is the matter of Gender Justice, Gender Equality and Gender Dignity; Whether Triple Talaq, Polygamy & Halala is in consonance with Fundamental Rights and Constitution morality? Whether the Triple Talaq, Polygamy & Halala is a social evil like Child Marriage, Sati-Pratha and Untouchability; Whether the Triple Talaq, Polygamy and Halala is in consonance with Islamic morality and Holy Quran? Who represents Muslims? Union Governments and State Governments or All India Muslim Personal Law Board (AIMPLB) which is a Non-Government Organization (NGO), registered in 1973 under the Society Registration Act; Whether Jamiat-Ulema-Hind, which has been divided into many folds in last 50 years, and now owned by one family, represents the will of all the Indian Muslims?
Vishwa Hindu Parishad (VHP) or Bajarang Dal may approach this Hon’ble Court with the prayer that Ayodhya (birth place of Lord Ram), Mathura (birthplace of Lord Krishna) and Kashi (One of the 12 Shiv Jyotirlinga) is the matter of faith so Courts should not interfere. Someone will form All India Hindu Personal Law Board (AIHPLB) and may approach the Court in support of Polygamy, Child marriage, Sati-Pratha etc which have been practiced by Hindus for hundreds of years.
Someone will form All India Christian Personal Law Board (AICPLB) and may approach the Court against prevailing divorce system because it is against the Christianity. Someone will form All India Parsi Personal Law Board (AIPPLB) and may approach the Court against the divorce system because it is against their religion.
International Society for Krishna Consciousness (ISKCON) may approach the Hon’ble Court against the interference of the Court in Dahi-Handi festival. The Sabri-Mala Temple Trust and Hazi-Ali Dargah Shrine Board may approach the Court against the entry of women in Sabri-Mala temple and Hazi-Ali Dargah.
THE ARTICLES TO BE CONSIDERED
Article 13(3)(b) of the Constitution of India, Article 14 of the Constitution of India, Article 15(3) of the Constitution of India, Article 21 of the Constitution of India, Article 37 of the Constitution of India, Article 44 of the Constitution of India, Article 51A(a) of the Constitution of India, Article 51A(e) of the Constitution of India, Article 51A(h) of the Constitution of India, Article 51A(j) of the Constitution of India.
GROUNDS AND CITATIONS
On aspect of interpretation of the Constitution, the following observations of Justice Dickson of the Supreme Court of Canada in Hunter versus Southam Inc (1984) 2 SCR 145 (Canada SC) are quite apposite: “The task of expounding a Constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A Constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and when joined by a Bill or Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind.”
The Article 141 and 142 empowers this Hon’ble Court to make such order, as is necessary for doing complete justice in any cause or matter and any order so made shall be enforceable throughout the territory of India. Customs must be tested with Article 14, 15, 21 and 51A.
In M. Nagaraj versus Union of India (2006) 8 SCC 212, speaking for the Constitution Bench, Hon’ble Justice S.H. Kapadia, said: “The Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expending future and is intended to endure for ages to come and consequently to be adapted to the various crises of human affairs. Therefore, purposive rather than strict literal approach to the interpretation should be adopted. A constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that a constitutional provisions does not get fossilized but remains flexible enough to meet newly emerging problems and challenges.”
The paramountcy of the Right to “Life” and “Personal Liberty” was highlighted by the Constitution Bench in Kehar Singh versus Union of India, (1989) 1 SCC 204: 1989 SCC (Cri) 86. This Hon’ble Court held: “To any civilized society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the Courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the legislature, the executive and the judiciary are more sensitive to them then to the other attributes of daily existence. The deprivation of personal liberty and the threat of deprivation of life by the action of the State is in most civilized society regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ.”
In Khatri (IV) versus State of Bihar (1981) 2 SCC 493 : 1981 SCC (Cri) 503, this Hon’ble Court said: “The Court is not helpless to grant relief in a case of violation of the right to life and personal liberty, and it should be prepared “to forge new tools and device new remedies” for the purpose of vindicating these precious fundamental rights. It was also indicated that the procedure suitable in the facts of the case must be adopted for conducting the enquiry, needed to ascertain the necessary facts, for granting the relief as may be available mode of redress, for enforcement of the guaranteed fundamental rights.”
In Khursheed Ahmad Khan Vs. State of U.P. (2015) 8 SCC 439: AIR 2015 SC 1429, the Court said that contracting a second marriage during the subsistence of first marriage without permission of Government in terms of conduct rules as an offence and the same is not saved by religious faith and religious practice which may run counter to public order, health or morality. Polygamy is not part of religion and monogamy as reform is within the power of State under Article 25 of the Constitution. In that case, the Government servant who contracted the second marriage and the first marriage was subsisting was held as misconduct and was removed from service.
It is a quite natural to ask why there should be a common law in relation to personal matters with respect to persons belonging to different religions, which prescribe different personal laws. In Mohd Ahmad Khan Vs. Shah Bano Begum (1985) 2 SCC 556 (Para 32): AIR 1985 SC 945, it was observed: “it is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that ‘The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.’ There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common civil code will help the cause of national integration by removing desperate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is for the State, which is charged with the duty of securing a uniform civil code for the citizens of this country and unquestionably, it has the legislative competence to do so. A counsel in this case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasion on a common platform. But a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the Courts because; it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But, piecemeal attempts of Courts to bridge the gap between the personal laws cannot take the place of Common Civil Code. Justice to all is more satisfactory way of dispensing justice than justice from case to case”.
This Hon’ble Court has reiterated its views on the need to have a Uniform Civil Code in the country. The Court has emphasized in Sarla Mudgal Vs. Union of India that Article 44 is based on the concept that there is no necessary relation between religion and personal law in a civilized society. Article 25 guarantees religious freedom whereas Article 44 seeks to divert religion from social relation and personal law. Marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined in Articles 25, 26 and 27. The Hindu Law though as having sacramental origin, has been secularized. The Court has pointed out that successive Government in India till date have been holy remiss in their duty of implementing the Constitutional mandate under Article 44. Accordingly, the Court has again urged the Government of India to have a fresh look at Article 44 and endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India. The Court has continued to emphasize that the Common Civil Code will help the cause of national integration by removing contradiction based on ideologies.
The need for a Uniform Civil Code was again stressed by the Court in ABC Vs. State of NCT of Delhi, Supreme Court Judgment dated 06.07.2015, upholding the right of unwed mother to apply for sole guardianship over her minor son without prior consent of child’s absentee biological father. The Court has said: “Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts who are natural guardians of their illegitimate children by virtue of their maternity alone. It would be apposite for us to underscore that our Directive Principles envision the existence of a Uniform Civil Code, but this remains an unaddressed Constitutional expectation.” Petitioner states that marriage, succession and like matters must be tested on the anvils the Article 14, 15, 21 and 51A.
In Jorden Diengdeh Vs. S.S. Chopra, AIR 1985 SC 935: (1985) 3 SCC 62, it was observed: “……..the law relating to judicial separation, divorce and nullity of marriage is far, from Uniform. Surely the time has come for a complete reform of the law of marriage and make a Uniform law applicable to all people irrespective of religion or caste. We suggest that time has come for the intervention of the Legislative in these matters to provide for a Uniform Civil Code of marriage and divorce.”
One of the main objections against common or uniform civil code is that it would be a tyranny to the minority community. Sh. K.M. Munshi, Member of the Drafting Committee rejected the arguments in the Constituent Assembly stating thus: “A further argument has been advanced that the enactment of a Civil Code would be tyrannical to minorities. Is it tyrannical? Nowhere in advanced Muslim countries, the Personal Law of each minority has been recognized as so sacrosanct as to prevent the enactment of a Common Civil Code. Take for instance Turkey or Egypt. No minority in these countries is permitted to have such rights. When the Sharia Act was passed when certain laws were passed in the Central Legislature, the Khojas and Cutchi Memons were highly dissatisfied. They then followed certain Hindu Customs for generations since they became converts they had done so. They did not want to confirm to the Sharia and yet by legislation of the Central Legislature where certain Muslim Members who felt that Sharia law should be enforced upon the whole community carried their points. The Khojas and Cutchie Memons most unwillingly had to submit to it. Where were the minorities then? When you want to consolidate a community, you have to take into consideration the benefit, which may accrue, to the whole community and not to the customs of a part of it. It is not, therefore, correct to say that such an Act is tyranny of the majority. If you look at the Countries in Europe which have a common civil code, everyone who has gone their form any part of the world and even minority has to submit the common civil code. It is not felt to be tyrannical to minority. The point, however, is this whether we are going to consolidate and unify our Personal Law in such a way of life of the whole country as may in course of time be unified and secular. We want to divorce religion from Personal Law, from what may be called social relations or from the rights of parties as regards inheritance of succession. What have these things got to do with religion. I really fail to understand……… there is no reason why there should not be a Common Civil Code throughout the territory of India……… Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve as early as possible, a strong and consolidated Nation. Our first problem and the most important problem is to produce National Unity in this country. We think we have got national unity. But there are many factors and important faction – which still offer serious dangers to our national consolidation, and it is very necessary that whole of our life, so far as it is restricted to secular sphere, must be unified in such a way that as early as possible we may be able to say, “We are not merely a nation because we say so, but also in effect; by the way we live, by our personal law, we are a strong and consolidated nation.” From that point of view alone, I submit, the opposition is not, if I may say so, very well advised. I hope our friends will not feel that, this is not an attempt to exercise tyranny over a minority; it is much more tyrannous to the majority.
In John Vallamattom Vs. Union of India, AIR 2003 SC 2902: (2003) 6 SCC 611, Justice Khare, CJI (with two Judges Justice Sinha and Justice Lakshman) agreed and said: “a common civil code will help the cause of national integration by removing all contradictions based on ideologies”. It was held that power of Parliament to reform and rationalize the personal laws is unquestioned and command of Article 44 is yet to be realized.
Dr. Tahir Mahmood in his book Muslim Personal Law (1977 Edition, Pages 200-2002) has made a powerful plea for framing a Uniform Civil Code for all citizens of India. He says: “In pursuance of the goal to secularism, the State must stop administering religion based personal laws.” And made an appeal to Muslim community as thus: “Instead of wasting their energy in exerting theological and political pressure, in order to secure an ‘immunity’ for their traditional personal law, on the State’s Legislative Jurisdiction, the Muslim will do well to begin exploring the demonstrating how the true Islamic laws, purged of their own time-worn and anachronistic interpretations, can enrich the common civil code in India.” Along with this appeal, the Author has made an earnest attempt to trace the history of codification and development of the law in the major countries of the Muslim World.
In Sarla Mudgal Vs. Union of India, AIR 1995 SC 1531: (1995) 3 SCC 635, while insisting the need for a Common Civil Code, the Court held that the Fundamental Rights relating to religion of members of any community would not be affected thereby. It was held that Personal Law having been permitted to operate under authority of legislation the same can be superseded by a Uniform Civil Code. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized Society. Article 25 guarantees religious freedom where Article 44 seeks to divest religion from social relation and personal law. Marriage, succession and like matter of a secular character cannot be brought within the guarantee enshrined under Article 25, 26 and 27. Hon’ble Judges also “requested” the Prime Minister of India to have a fresh look at Article 44 and “endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India” and wanted the Court to be informed about the steps taken. But in Lily Thomas Vs. Union of India, the Court clarified the remarks made in Sarla Mudgal case only as an opinion of the Judge and declared that no direction have been issued for any legislation. At the same time, the Court did not express any dissenting view of the need for a common civil code. It only held that to have a legislation or not is a policy decision and the Court cannot give any direction.
The answer to this is that diversity in such personal matters along with religious differentiation, leads to sentimental tension between different communities as has been learnt by bitter experience from the history leading to the partition of India and also by a subsequent events till today. It can never be forgotten that the policy of British imperialism was to ‘divide and rule’ India and for that purpose they would at times fan anything which might make the cleavage between the two major principal communities of India i.e. Hindus and Muslims, wider and wider. The British rulers, thus, lost no opportunity in inserting even newer wages like the communal award, which planted separate representation in the Legislature according to religion; and eventuality led to the lamentable partition of India, which truncated the motherland and involved so much of bloodshed and inhuman outrages.
Ideological concept, which led to the partition of India, was the assertion of Muslims that they constitute a ‘Nation’ separate from the Hindus. Even though Hindu Leader did not admit of this two-nation theory, the partition is an accomplished fact and cannot be wiped off. The framers of the Constitution had in their mind the fresh experience of atrocities, which were committed at the time of the partition. When Muslims were given options to go away to new Dominion founded on two-nation theory, it was quite natural for the leaders of divided India to aspire for the unity of the one nation, namely, the Indian, so that history might not repeated itself.
That with this object of the view the expression ‘Unity of the Nation’ was inserted in the very Preamble of the Constitution of free India. By the 1976 amendment, this has been elaborated by the substitution of the expression ‘Unity and Integrity of the Nation’.
The Article 51A, which has been introduced by the same amendment, provides(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 integrity 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 brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) to value and preserve the rich heritage of our composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to abjure violence; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
The makers of the Constitution, wanted to establish a ‘Secular’ State and with that purpose they codified Article 25 Clause (1) of which guaranteed freedom of religion, freedom of conscience, and freedom to profess, practice and propagate religion, to all persons in India. But at the same time they sought to distinguish between the essence of a religion and other secular activities which might be associated with religious practice but yet did not form a part of the core of the religion, and with this end in view they inserted Clause 2(a): “Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activities which may be associated with religious practices.”
It is quite evident that once it is held that there are certain matters relating to civil law, which do not form part of the essence of religion but is only a secular activity, practice or usages connected or associated with religion, the Legislature in free India would be competent to make a uniform law relating to such secular activities, by way of implementing Article 44 of the Constitution.
It is relevant to point out that anybody who raises an objection to implementation of Article 44 becomes guilty of violation of the Preamble, Article 44 as well as Article 51A of the Constitution. And any Government, which yields to such demands, even after 67 years of the adoption of the Constitution, would be not only liable to the charge of throwing the Constitution to the winds, but also of being a party to the violation of Article 44 and Article 51A specifically and also the guarantee of non-discrimination on the ground of religion of Article 15 of the Constitution.
To explain it may be record that Clause (e) of Article 51A enjoins every citizen to renounce practices derogatory to the dignity of woman. Clause (h) of Article 51A enjoins every citizen to develop scientific temper, humanism and the spirit of inquiry and reform. It needs little arguments to point out that indiscriminate polygamy by a man marrying up to four wives (and the scriptures say that even if he marries a fifth one that marriage will not be void, but merely irregular) or the practice of divorcing a lawfully wedded wife by the utterance of a word (Talaq) thrice within the span of three seconds; or the refusal to maintain a divorced wife after a limited period of time after divorce (three months – iddat) are all practices derogatory to the dignity a woman, according to modern notions and in the face of assuring dignity of every individual in the Preamble of our Constitution. Therefore, any member of the Muslim community, who resorts to such practices, who himself or urges that such practices should be immuned from Legislation or that Article 44 itself must be wiped off or restricted to persons other than Muslims, is violating Article 51A. Whether that provision is unenforceable in the Courts of law are not is a different question; but in other countries such a person would have lost his citizenship if not something more. Thus the 1982 Constitution of China says – “Citizens……… must abide by the Constitution”. The 1977 Constitution of the USSR goes further in amplifying the co-relation between the Fundamental Rights and the fundamental duties in Article 59. Thus – “citizens exercises of their rights and freedoms is inseparable from the performance of their duties and obligations. Citizens of the USSR are obliged to observe the Constitution of USSR………”
It is necessary to examine the grounds upon which the Muslim opposes the implementation of Article 44 of the Constitution after more than six decades of the commencement of the Constitution. The most radical argument is that Article 44 is opposed to Shariat. The only way to change the Constitution of India is to resort of the special procedure prescribed for amendment of the Constitution in Article 368(2) of the Constitution itself, which requires a special majority in Parliament. If the Muslims can persuade the Parliament after getting the support of the special majority, it is only then that their desideratum can be fulfilled and not by sheer force or by getting the support of forces outside India belonging to the pan Islamic organizations. It is pertinent to quote from former Chief Justice of India and eminent jurist Justice Chagla in his Article 1973, ‘Plea for Uniform Civil Code’ – “that Article 44 is a mandatory provision binding the Government and it is incumbent upon it is to give effect to this provision……. The Constitution was enacted for the whole country, it is binding for the whole country, and every section and community must accept its provisions and its Directives…….”
Another argument is that Article 44 stands in the way of maintaining Muslim identity. So far as the plea of Muslim identity is concerned it is nothing but a relic of the “Two Nation Theory” which was asserted by the Muslim Political Leader to carve out a separate State for the Muslims, on the basis of their religion. On the other hand, the Nationalist Indian Leaders all along urged that there was only one Nation, viz. Indian; and after the Communalist Muslims went away on the partition. There was nothing to stand in the way of proclaiming in the very Preamble of the Constitution of independent India that the goal of India was One Nation united by the bond of fraternity. There should not be any apprehension of losing their identity when the same Constitution guarantees to the minority the maintenance of the institution essential to their religion, language and culture, in Articles 26, 29, 30. After the partition of India, the Muslims who preferred to remain in divided India instead of moving to Pakistan, knew very well what they could get from the ‘secular’ Government of India. There was no covenant with them that they would be allowed to demand more and more to serve their communal interest. To cry for more, after six decades is nothing but a resurrection of the slogan “Islam in Danger” which led to the partition of India.
It is next contended that even though a Common Civil Code was desirable, it could not be brought about until the Muslim themselves came forward to adopt it. This is only a diluted form of the plea for abolition of Article 44 altogether, because the Article may virtually be effaced if the Muslims never come forward with their consent. None of the Directives in Part IV of the Constitution lay down that they can be implemented only if its opponent consents. The Constitution was adopted after due deliberation as to its provisions being beneficial or conductive to the entrust of the people of India, by a Constituent Assembly having Muslim representatives. There are some people who are still opposed to any of these provisions doesn’t require obtaining their consent afresh. Illiterate and ignorant parents do not desire that their children should go to school instead of helping them in agriculture, or earning money in factories. Should the implementation of Article 45 wait till these people give their consent? The controversy arising from the Shah Bano decision of this Hon’ble Court clearly exposed that it is only a section of the Muslim community, viz., the Sunnis, who would not accept it. Is there any precedent in any country, where the caprices of such a fraction of the population having allowed to stand in the way of the unity and progress of the entire nation and the implementation of the fundamental law of the country, adopted by a solemn Constituent Assembly? Article 44 of the Constitution is addressed to the State and is a mandatory provision. In the words of this Hon’ble Court: “A belief seems to have gained ground that it is for the Muslims community to take a lead in the matter of reforms of their personnel law…….But it is the State which is charged the duty of securing a Uniform Civil Code for the citizens of the country. This duty has been imposed on the State with the object of achieving national integration by removing disparate loyalties to laws which have conflicting ideologies.” The question arises – why then has the Government of India failed to discharge this Constitutional mandate for more than six decades? The Answer to that question too has been pithily answered by this Hon’ble Court, namely, lack of political courage – which many other responsible persons have amplified as the fear of losing Muslim votes at the next election.
The State has not only failed to implement a Directive – in the opinion of Dr. Tahir Mahmood, it has violated the norm of the much vaunted “secularism” (which is embodied in the Preamble of the Constitution itself): “In pursuance of the goal of secularism, the State must stop administering religion based personal laws.” It is curious that the Government of India has not yet protested against the decision of the Indian Muslim Personal Law Board to setup parallel Courts in many localities to decide the cases under Shariat, with exclusive and compulsory jurisdiction,- even though the setting up of such a parallel judiciary to decide cases under Muslim Personal Law will not only sound a death knell to Article 44 but also to the provisions in the Constitution providing for one system of judiciary for the entire territory of India and all its people, it is a retrograde step cutting at the roots of the Constitution of the Indian republic.
It is also urged that Shariat or Muslims Personal Law is immutable being founded on the Koran, which is ordained by the God. Apart from the historical fact that the issue has been concluded by partition of India and the adoption of the Constitution of India, it has been belied by the multifarious changes by way of reform in Muslim States e.g. Egypt, Jordan, Morocco, Pakistan, Syria, Tunisia, Turkey – where no question of Hindu dominance never arose. It is pertinent to State the Report of the Commission on Marriage and Family Laws, which was appointed by the Government of Pakistan in 1955, and which should have demolished, once for all, the plea that the Shariat is immutable. In words of Allama Iqbal, “The question which is likely to confront Muslim Countries in the near future, is whether the Law of Islam is capable of evolution – a question which will require great intellectual effort, and is sure to be answered in the affirmative.”
One more logic is that even if a common civil code is formulated, it should be optional for the Muslims to adopt its provisions. This is only a diluted version of the forgoing pleas, viz. that the Shariat is immutable; that no Code can be imposed on the Muslims without their consent. It is unmeaning to draw-up a Uniform Civil Code as enjoined by Article 44 if it is not binding on every person within the territory of India.
Polygamy is totally prohibited in Tunisia and Turkey. In countries like Indonesia, Iraq, Somalia, Syria, Pakistan and Bangladesh etc. it is permissible only if authorized by State or some other prescribed authority.
Unilateral Talaq obtained by the husband by pronouncing the word thrice (Talaq-ul-biddat) has been abolished by legislation in Egypt, Jordan, Sudan, Indonesia, Tunisia, Syria and Iraq etc. In Pakistan and Bangladesh, any form of extra judicial Talaq shall not be valid unless confirmed by an Arbitration Council. In India, however, the traditional form of Talaq by the husband is continuing in Law. But even in India, the Dissolution of Muslim Marriage Act 1939 provided Muslim women to obtain dissolution in certain cases, which right they do not have under the Shariat. Under this Act, Marriage of another wife would be treated as an act of ‘cruelty’ to bar a husband’s suit for restitution of conjugal rights. This Indian Act of 1939 has been adopted in Pakistan and Bangladesh, with amendments.
On the question of reforming the Shariat by legislation, the Statement of Objects and Reasons of the Act of 1939, which has been conceded by Muslims in India, Pakistan and Bangladesh are illuminating: “There is no provision in the Hanafi Code of Muslim Law enabling a married Muslim Women to obtain a decree from the Court dissolving her marriage in case a husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leaving her un-provided for and under other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India.”
By enacting the dissolution of Muslim Marriage Act 1939, therefore, the British Government allowed a Muslim wife to obtain a decree for dissolution of her marriage on any of aforesaid ground specified in statute, even though these grounds did not exist in the Muslim Personal Law.
That as regards Talaq-Ul-Biddat, the history is intriguing. (a) It has no sanction in the Koran and the Shiahs don’t recognize its validity. Under Shiah Law, divorce by the husband may be valid only if the husband pronounces an Arabic formula in the presence of two witnesses. (b) Even though contrary to the Shariat, the Hanafis (that is Sunnis) follow this form of Talaq as an ‘irregular’ form founded on practice introduced by the Ommayede monarchs in the second century of the Mohammedan era. During the British regime, many High Courts condemned it as contrary to Shariat and yet upheld its validity on the ground of practice.
Under the Constitution, the controversy continued and various Muslim scholars expressed their opinion against it. The Government, however, remained inactive in order to appease the sentiments of one section of the Muslim population, viz., the Sunnis. Of late, however, on May 21, 1993, the Jamiat Ahle Hadith, the highest authority of Shariat has come out with the conclusion that Talaqul-ul-biddat is contrary to the Shariat. If the Government is serious to bring about a Code, it should now come forward on the support of the aforesaid authoritative pronouncement instead of being beguiled by the Statement issued by some fundamentalists led by the All India Muslim Personal Law Board, which is a non-Government organization, registered under the Society registration Act.
The Shariat has been controlled by legislation in Pakistan and Bangladesh by the Ordinance of 1961. In India, a uniform law of maintenance was adopted by Section 488 of the CrPC, 1898, which extended to Muslims as well. When Section 125 of the CrPC of 1973 extended it to divorced women, Muslims contended that it should not be applied to Muslims as it was contrary to the Shariat. This contention was turned down by this Hon’ble Court in Shah Bano Case.
The argument that according to Muslim Personal Law, husband’s liability to provide for the maintenance of his divorced wife is limited to the period of iddat, despite the fact that she is unable to maintain herself was rejected. It was held that Section 125 of CrPC overrides the Personal Law, if there is conflict between the two. It is to overcome this decision, the Parliament enacted the Muslim (Protection of Rights of Divorce) Act 1986.
In spite of legislation, this Hon’ble Court has held that the Muslim Women (Protection of Rights and Divorce) Act actually and in reality codifies what has been Stated in Shah Bano’s Case. It was held that as regards Personal Law of Muslims to divorced Muslim Women’s right, the starting point should be Shah Bano’s Case, and not the original texts or any other material – all the more so when varying versions as to the authenticity of the source or shown to exist. It was held that the law declared in Shah Bano’s Case, was after considering “The Holy Quran” and other Commentaries or other texts. It was observed that the rationale behind Section 125 of CrPC to make provisions for maintenance to be paid to a divorced Muslim wife is clearly to avoid vagrancy or destitution on the part of a Muslim women. Article 21 of the Constitution was also taken into consideration. [Denial Latifi versus UOI (2001) 7 SCC 740: AIR 2001 SC 3958] The Court interpreted that under Section 3 of the Act that a Muslim husband is liable to make “provision” for the future of a divorced wife even after the iddat period. [Sabra Shamim versus Maqsood Ansari (2004) 9 SCC 606] Justice Khalid of Kerala High Court (as his Lordship then was) reminded the plight of Muslim women and wanted the law to be amended to alleviate their sufferings. The above two decisions were approved by this Hon’ble Court in Shamim Ara versus State of UP (2002) 7 SCC 518. In regard to tribal women, the Court recognized the laws as patriarchal, declined to give a general direction regarding customs and other inheritance laws which discriminated women. The Court protected the rights of women by suspending the exclusive rights of male succession till the women chose other means of livelihood. This enactment cannot, therefore, be cited in support of the contention that Muslim Personal Law is immutable and cannot be subjected to legislation. In this context, we may recall the concession made by Mr. Nasiruddin in the Constituent Assembly, that certain aspects of the Civil Procedure Code, 1908, have interfered with our Personal Law and very rightly so and also that marriage and inheritance are similar practices associated with religion.
In the Report of the National Commission to Review the working of the Constitution, the Commission has suggested a mechanism for realization of the Directive Principles. In Chapter III Para 35, the Commission has Stated as thus: (i) The State should derive appropriate mechanism for realization of the Directive Principles. The Commission doesn’t propose to recommend a complaints procedure inasmuch as it is more concerned with a procedure which will ensure proper allocation of resources for the realization of the right to work, health, food, clothing, housing, education and culture. Domestic bodies in various countries have different composition, membership and powers. (ii) In the view of the Commission, there must be a body of high status, which first reviews the State of the level of implementation of the Directive Principles and Economic, Social and Cultural Rights and in particular (a) the right to work, (b) the right to health, (c) the right to food, clothing and shelter, (d) right to education up to and beyond the 14th year, (e) the right to culture. The said body must estimate the extent of resources required in each State under each of the heads and make recommendations for allocation of adequate resources, from time to time. For ensuring that the Directive Principles of State Policy are realized more effectively, the following procedure is suggested: (i) The Planning Commission shall ensure that there is a special mention/emphasis in all the plans and schemes formulated by it, on the effectuation/realization of the Directive Principles of State Policy. (ii) Every Ministry/ Department of the Government of India shall make a special annual report indicating the extent of efficiency / realization of the Directive Principle of State Policy, the shortfalls in the targets, reasons for the shortfall, if any, and the remedial measures taken to ensure their full realization during the year under report. (iii) The Report under item (ii) shall be considered and discussed by the Department related to the Parliamentary Standing Committee, which shall submit its report on the working of the Department indicating the achievements/failures of the Ministry/Department along with the recommendation thereto. (iv) Both the above Reports (ii) and (iii) shall be discussed by the Planning Commission in an interactive seminar with the representatives of the various NGOs, Civil Society Groups, etc. In which the representative of the Ministry/Department and the Department related to the Parliamentary Standing Committee would also participate. The report of this interaction shall be submitted to the Parliament within a time bound manner. (v) The Parliament shall discuss the report at (iv) above within a period of three months and pass a resolution about the action required to be taken by the Ministry/Department.
The Directives lay down the lines on which the State of India should work under this Constitution. Their contents may be divided into several groups: (i) Certain ideals, particularly economic, which the framers of the Constitution wished that the State should strive for. (ii) Certain directions to the future Legislature and the future Executive to show in what manner they should exercise their legislative and executive powers (iii) Certain rights of the citizens shall not be enforceable by the Courts like the ‘Fundamental Rights’ but which the State shall nevertheless aim at securing, by regulation of its legislative and administrative policy.
That the Chairman of Drafting Committee Dr. Ambedkar, introducing the draft Constitution as settled by the Drafting Committee said: “If it is said that the Directive Principles have no legal force, I am prepared to admit it. But I am not prepared to admit that they have a sort of binding force at all, nor am I prepared to concede that they are useless because they have no binding force in law. The Draft Constitution framed only provides machinery for the Government of the country. It is not a contrivance to install any particular party in power as has been done in some countries. Who should be in power is left to be determined by the people, as it must be, if the system is to satisfy the test of democracy. But whoever captures power will not be free to do what he likes with it. In the exercise of it, he will have to respect these instruments of instructions, which are called Directive Principles. He cannot ignore them. He may not have to answer for their breach in a Court of law but he will certainly have to answer for them before the electorate at election time. What great value these Directive Principles poses will be realized better when the forces of right contrive to capture power.”
The Article 37 lays down that it shall be the duty of the State to apply these Principles in making laws. It deserves to be noted that learned B.N.Rao, Constitutional Advisor to the President of the Constituent Assembly, had suggested an amendment with a view to ensure that the Directive Principles would be enforceable in a court of law. He explained the object of the amendment as thus: “It is to make it clear that in a conflict between rights conferred by Chapter III that is Fundamental Rights, which are the most important rights of individuals, and the Principles of policy set forth in Chapter IV, which are intended for the welfare of a State as a whole, the general welfare should prevail; otherwise, it would be meaningless to say that the Principles are fundamental and it is the duty of the State to give effect to them in making the laws. As the majority of members of the Constituent Assembly were in favour of individual right, this amendment was not accepted. If the amendment had been accepted, the Constitutional history and history of judicial review would have been different.”
In Minerva Mills versus UOI [AIR 1980 SC 1789: (1980) 3 SCC 625: (1981) 1 SCR 206] it was pointed out- (i) The Directive Principles are not excluded from the cognizance of the court; (ii) simply because the Directive Principles don’t create right enforceable in a court of law, it does not follow that they do not create any obligations on the State; (iii) Article 37 contains a positive mandate to the State to apply these Principles in making laws. It was held therein that the harmony and balance between Fundamental Rights and Directive Principles is an essential feature of basic structure of the Constitution.
The learned author Granville Austin in his book “The Indian Constitution – Cornerstone of a Nation” (Chapter-III, Page 50-52) while dealing with Fundamental Rights and Directive Principles States: “The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of 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 rational renaissance, the core of the commitment to social revolution lies in the Part IIIand IV, in Fundamental Rights and in the Directive Principles of State Policy. These are the conscience of the Constitution. The Fundamental Rights and Directive Principles had their root deep in their struggle for independence, they were included in the Constitution in the hope, and expectation that one day the tree of true liberty will bloom in India. The rights and Principles thus connect India’s future, and past, adding greatly to the significance of their inclusion in the Constitution and giving strength to the pursuit of the social revolution in India….”
In the Directive Principles, however, one finds an even clearer Statement of the social revolution. They aim at making the Indian masses free in the positive sense, free from the passivity engendered by centuries of coercion by society and by nature, free from the object of physical conditions, which has prevented them from fulfilling their best selves. To do this, the State is to apply the precepts contain in the Directive Principles when making laws. These Principles are not justiciable, a court cannot enforce them, but they are to be, nevertheless fundamental to the governance of the country. The essence of the Directive Principles lies in Article 38, which echoing the Preamble: “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”.
To foster this goal, the other provisions of the Directive Principles exhort the State to ensure that citizens have adequate means of livelihood, that the operation of the economic system and the ownership and control of the material resources of the country sub-serve the common goal, that the health of the workers including children is not abused and that special considerations be given to pregnant women. Workers, both agricultural and industrial are to have a standard of living that allows them to enjoy leisure and social and cultural opportunities. Among the primary duty of the State is the raising of the level of nutrition and the general standard of living of the people. The Principles express the hope that within 10 years of the adoption of the Constitution, there will be compulsory primary education for children up to the age of 14 years. The other provisions of the Principles seek equally to secure the renovation of Indian Society by improving the techniques of agriculture, husbandry, cottage industry, etc. “By establishing these positive obligations of the State, the members of the Constituent Assembly made it the responsibility of future Indian Government to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate the powers of all men equally for contribution to the common good.”
If the Preamble is the key to understanding of the Constitution or to open the mind of its makers, the Directive Principles of State Policy as enshrined in Part IV, are its basic ideal. It is here that the Constitution makers poured their mind by setting forth the humanitarian socialist principles, which epitomized the hopes and aspirations of the people and declared them as the fundamental in the governance of the country. They are affirmative instruction from the ultimate sovereign to the State authorities, which are the creatures of the Constitution established by them, to secure to all citizens justice – social, economic, and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity, and to promote among them all fraternity, assuring dignity of the individual and unity and integrity of the nation.
It is duty of all the State to direct their activities in such a manner so as to secure the high ideals set forth in the Preamble and copiously analyzed and enshrined in Part IV of the Constitution. The Directive Principles of State Policy are an amalgam of diverse subjects embracing the life of the nation and include principles, which are general Statements of social policy, principles of administrative policy, socio economic rights and Statement of the international policy of the country.
Dr. B.R. Ambedkar, Chairman of the Drafting Committee told the Constituent Assembly that every Government, Central, State and Local “shall be on the anvil, both in the daily affairs and the end of certain period when the voters and the electorate will be given an opportunity to access the work done by the Government…… While we have established political democracy, it is also the desire that we should lay down as our ideal economic democracy…… There are various ways in which people believes that economic democracy can be brought about, we have deliberately not introduced in the language that we have used in the Directive Principles something, which is fixed or rigid. We have left enough room for the people of different ways of thinking, with regard to the reacting of the ideal of economic democracy. Our object in framing the Constitution is two-fold: (i) to lay down the form of political democracy and also to prescribe that every Government whatever is in power, shall strive to bring about economic democracy. …”
In the “Report of National Commission to Review the Working of the Constitution”, it is said: “Part IV contains directions which enables the realization and effectuation of the aspiration of Part IIIand give full meaning to them. Part IV is theoretically non-justiciable. But it permeates the whole ethos of Part III. Despite Sir Ivor Jenning’s sarcasm that “the ghost of Sydney and Beatrice Webb stalk through the pages of the text, Part IV of the Constitution expresses Fabian Socialism without the Socialism”, the Constitution seeks humanism, endurance and higher values.”
In Welfare State, the primary duty of the Government is to secure the welfare of the people. The object of the Directive Principle is to embody the concept of Welfare State. The Directive Principles are obligation of State toward fulfillment of which every State action must be directed and interpreted. The extracts from the speech of Dr. Ambedkar, Chairman of Drafting Committee, explaining the underlying object in laying down the Directive Principles of State Policy, may well be quoted here: “It is no use giving a fixed, rigid form to something, which is not rigid, which is fundamentally changing and must, having regard to circumstances and the times, keep on changing. It is, therefore, no use saying that the Directive Principles have no value. In my judgment, the Directive Principles have a great value, for, they lay down that our ideal is economic democracy. Because, we did not want merely a parliamentary form of Government to be instituted through the various mechanism provided in the Constitution, without any direction as to what our economic ideal or as to what our social order ought to be, we deliberately included the Directive 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 is really twofold: (i) to lay down the form of political democracy and (ii) to lay down that our ideal is economic democracy and also to prescribe that every Government, whoever in power, shall strive to bring about economic democracy, much of the misunderstanding under which most members are laboring will disappear”.
In Kesavananda Bharati versus State of Kerala, [AIR 1973 SC 1461: (1973) 4 SCC 225] Justice K.K. Mathew explained the importance of Directive Principles as thus: “I think there are rights which are inherent in human beings because they are human beings – whether you call them natural rights or some other appellation, is immaterial. As the Preamble indicates, it was to secure the basic human rights like liberty and equality that the people gave unto themselves. The Constitution was also enacted by the people to secure justice – political, social and economic. Therefore, the moral rights embodied in Part IV of the Constitution are equally an essential feature of it, the only difference being that the moral right embodied in Part IV are not specifically enforceable as against the State by a citizen in a court of law. In case the State fails to implement its duty, but nevertheless they are fundamental in the governance of the country and all organs of the State, including the judiciary are bound to enforce these Directives. The fundamental rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgement, curtailment, and even abrogation of these rights in circumstances not visualized by the Constitution makers might become necessary, there claim to supremacy or priority is liable to be overborne at particular stages in the history of nation by moral claims embodied in Part IV”. Justice Beg put the matter thus: “Perhaps the best way of describing the relationship between Fundamental Rights of individuals, citizens, which imposed corresponding obligations upon the State and the Directive Principles would be to look upon the Directive Principles as laying down the path of the country’s progress towards the allied objectives and aims stated in the Preamble with Fundamental Rights as the limits of that path, like the banks of a flowing river, which could be mended or amended by displacements, replacements or curtailments or enlargement of any part according to the needs of those who had to use the path”.
In Kesavanad Bharati case, the nature and object of Directive Principles is states as thus: “The Directive Principles of State Policy set forth the humanitarian socialist precepts that were the aims of the Indian social revolution……. Part III and IV essentially form a basic element of the Constitution without which its identity will completely change. A number of provisions in Part III and Part IV are fashioned in United Nations Declaration of Human Rights. Part III of the Constitution shows that the founding fathers were equally anxious that it should be society where citizen will enjoy the various freedoms and such rights, as are the basic elements of those freedoms without which there can be no dignity of the individual. Constitution makers did not contemplate any disharmony between Fundamental Rights and Directive Principles. It can be well said that the Directive Principles prescribed the goal to be attained and the Fundamental Rights laid down the means by which that goal was to be achieved. (per Shelat and Grover, JJ.) The Directive Principles and the Fundamental Rights mainly proceed on the basis of human rights. Freedom is nothing else but a chance to be better. It is this liberty to be better that is the theme of the Directive Principles of State Policy of the Constitution. (per Hegde and Mukherjee, JJ.).
The Scheme of the Constitution generally discloses that the Principles of social justice are placed above individual rights and whenever or wherever, it is considered necessary, individual rights have been subordinated or cut down to give effect to the Principles of social justice. Social Justice means various concepts, which are evolved in the Directive Principles of the State Policy (per Ray, J.). The object of Directive Principles of the State Policy is to establish a Welfare State where there is economic and social freedom without which political democracy has no meaning. (per Jagmohan Reddy, J.). The significant thing to note about Part IV is that, although its provisions are expressly made unenforceable, that does not affect its fundamental character. Enforcement by a court is not the real test of law (per Mathew, J.). Fundamental Rights are the ends of the endeavors of the Indian people for which the Directive Principles provided the guidelines. (per Beg, J.). The basic object of conferring freedoms on individuals is the ultimate achievement of the ideals set out in Part IV. Fundamental Rights, which are conferred and guaranteed by Part III of the Constitution undoubtedly constitute the ark of the Constitution and without them; a man’s reach will not exceed his grasp. But it cannot be over stressed that the Directive Principles of State Policy are fundamental in the governance of the country. What is fundamental in the governance of the country cannot be surely be less significant then what is fundamental in the life of an individual (per Chandrachud, J.).
The Directive Principle of State Policy direct to work for an egalitarian society, where there is no concentration of wealth, where there is plenty, where there is equal opportunity for all, to education, to work, to livelihood, and where there is social justice. [Golak Nath versus State of Punjab, AIR 1967 SC 1643: (1967) 2 SCR 762]. The Directive Principles emphasizes, in amplification of the Preamble, that the goal of the Indian polity is not laissez faire, but a welfare State, where the State has a positive duty to ensure to its citizens social and economic justice and dignity of individual. It would serve as an “Instrument of Instruction” upon all future Governments irrespective of their party creeds. [Bhim Singh versus Union of India, AIR 1981 SC 234: (1981) 1 SCC 166]. Part IV of the Constitution aims to end poverty, ignorance, disease, and inequality of opportunity. Though the provisions of Part IV are not enforceable by the courts, the Principles therein laid down are nevertheless fundamental in the governance of the country. It shall be the duty of the State to apply these Principles in making laws.
The Constitution makers rightly perceived that mere political democracy would be meaningless in a country of the poor millions without economic justice. The ideals Stated in the Preamble and reinforced through the Directive Principles of the State Policy, spell out in greater detail the goal of economic democracy of socio economic content of political freedom, the problem of a welfare State. Thus, Directives Principles supplement the Preamble to the Constitution. These Principles have been characterized as basic to our social order as they seek to build a socially just society. The Principles have been drafted in flexible and general language and leave enough leeway to the various Governments in the country to frame their policies from time to time in accordance with the contemporary needs and circumstance of the society to achieve the goal set out therein. These Principles do not impose any particular socio economic philosophy on the country. These Principles have played a crucial role in the legislative and administrative policy in the country. They have inspired the idea of socialistic pattern of society, the process of planning has been oriented towards achieving the goal contained in them, agrarian economy has been restructured, right to property has been very much diluted, public industrial and economic policy has extended and a pervasive system of Government regulations of private economic enterprise has been created. Consent efforts are being made to improve the position of backward and economically weaker section of society. However, in spite of the best intentions to fulfill these Principles, there have been deficiencies in the implementation of the policies frames for the purpose and much remains to be done. While a surfeit of laws have been enacted to promote the programs and policies envisaged by the Directive Principles, there has been failure on the part of the administration by the way of non administration, maladministration and misadministration. The Court has observed: “State Government has totally oblivious of its responsibilities regarding implementation of social welfare programs of proving secures homes to destitute women an children in conflict of law.”
The Fundamental Rights and Directive Principles constitute “Consciences of the Constitution”. The Constitution aims at bringing about a synthesis between Fundamental Rights and Directive Principles of State Policy by giving the former a place of pride and to latter a place of permanence, together they form the core of the Constitution. They constitute its true conscience and without faithfully implementing the Directive Principles, it is not possible to achieve the welfare State contemplated under the Constitution. [V Markandey versus State of AP, AIR 1989 SC 1308: (1989) 3 SCC 191]
That merely because the Directive Principles are not enforceable in a court of law, it does not mean that they cannot create obligation or duties binding on State. The crucial test which has to be applied is, whether the Directive Principles impose any obligations or duties on the State; if they do, the State would be bound by Constitutional mandate to carry out such obligations or duties, even though no corresponding right is created in any one which can be enforced in a court of law. The State is under the Constitutional obligation to carry out the mandate in Article 37. Minerva Mills Limited versus UOI, AIR 1980 SC 789: (1980) 3 SCC 625, (per Bhagavati, J.)
A perusal of debates on the Directive Principles in the Constituent Assembly reveals a few important facts. Firstly, the Directive Principles had been made unenforceable, not to render them ineffective or that they should remain like a cheque on a bank payable at the convenience of the bank, as Prof. K.T. Shah believed them to be made justiciable within a specified time limit. The intention was, as Dr. Ambedkar explained in the Constituent Assembly that “in future both the legislature and the executive should not merely pay lip-service to these Principles, but they should be made the basic of all legislative and executive functions, that they may be taking hereafter in the matter of the governance of the country.” It is not an attempt, he added, to incorporate Chapter IV, the positive mandate to the State and prescribe the manner in which those mandates were to be realized. The Directive Principles were intended to impart continuity to the national policies and their flexibility made it possible for the parties of the right and the left to strive in their own way to reach the ideals of the social and economic democracy whenever they would get an opportunity to form the Government after having received the verdict of the people at the polls, he emphasized.
The broad propositions are: (i) There is no disharmony between the Directives and the Fundamental Rights because they supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a Welfare State, which is envisaged in the Preamble. The Constitution aims at a synthesis of two: Fundamental Rights and Directives Principles, which constitute “Conscience of the Constitution”. Together they form the core of the Constitution and must be read as an integral whole. They are complementary to each other. The Fundamental Rights and Directive Principles are two wheels of a chariot as an aid to make social and economic democracy a truism. The Directive Principles serve the court as a beacon to interpretation. Fundamental Rights are rightful means to an end, viz., social and economic justice provided in the Directive Principles and the Preamble. The Fundamental Rights and the Directives establish the trinity of equality, liberty and fraternity in an egalitarian social order and prevent exploitation. Fundamental Rights are not end in themselves, but are the means to an end specified in Part IV of the Constitution. Just as the rights conferred by Part III, would be without a radar and a compass, if they are not geared to an ideal, in the same manner that attainment of the ideal set out in Part IV would become a pretence for tyranny, if the price to be paid for achieving the ideal is human freedom. Anything that destroys the balance between the two parts, ipso facto destroy the essential elements of the basic structure of the Constitution. (ii) Even the conditions for the exercise by each individual of his Fundamental Rights cannot be insured unless and until the Directives are implemented. (iii) Parliament is competent to amend the Constitution to override or abrogate any of the Fundamental Right in order to enable the State to implement the Directives so long as the “Basic Features of the Constitution” are not affected.
The Directive Principles have been described as forerunner of the UN Convention on Right to Development as an inalienable human right. The Court said that they stand elevated to human rights. Directive Principles according to later decisions of the Apex Court have a positive aspect. Thus, Directive Principles have been held to supplement Fundamental Rights. The Apex Court has said that with the development of law, even certain matters have been uplifted to the status of Fundamental Rights, for instance, the right to education. Though this right forms the part of the Directive Principles of State Policy, compulsory and primary education have been treated as a Part of the Article 21 by the Courts, which consequently led to the enactment of the Rights of Children to Free and Compulsory Education Act 2009.
In Unnikrishnan versus State of AP, AIR 1993 SC 2178: (1993) 1 SCC 645, this Hon’ble held as thus: “Fundamental Rights and Directive Principles are supplementary and complementary to each other and not exclusionary of each other. The Fundamental Rights are means to achieve the goals indicated in the Directives Principles and Fundamental Rights must be construed in the light of Directive Principles of State Policy.”
In Dalmia Cement (Bharat) Ltd versus UOI (1996) 10 SCC 104: (1996) 4 JT (SC) 555, this Hon’ble Court observed as thus: “The Core of commitment of the Constitution to the social revolution through rule of law lies in effectuation of the Fundamental Rights and Directive Principles of State Policy as supplementary and complementary to each other. The Preamble to the Constitution, Fundamental Rights and Directive Principles are trinity and the Conscience of the Constitution”.
Ashwini Kumar Upadhyay
Advocate En. No-D/1119/12
15, New Lawyers Chambers
Supreme Court, New Delhi-01