This article is written by Jisha Garg, a student currently pursuing B.A.LLB (Hons.) from Rajiv Gandhi National University of Law, Punjab. This is an exhaustive article dealing with the issue of balancing Fundamental Rights and good governance. The article underlines the need to strike a balance between the two. The article throws light on the importance of the principle of harmonious construction supported by various case laws. The Article also contains instances of government action indicating such an imbalance in the society.
Table of Contents
Balancing Fundamental Rights and good governance is one of the primary requirements for the establishment of a peaceful and just society. It is one of the principal characteristics of a democratic country where primacy is given to ensuring good governance by securing the Fundamental rights of citizens. In a fundamentally just society where there is a balance between Fundamental Rights and Directive Principles, violators are severely punished.
To establish a society in which justice is provided to even the most underprivileged sections of the community, the balance must be struck between the two elements. It would aim at building institutions and rules that are not just efficient but also fair, and that is developed through a democratic process in which all people have a real political voice.
The article discusses the principal characteristics of good governance. It also underlines the need for harmonious construction of Fundamental rights and good governance to strike a balance between the two. It emphasises the various instances where the government action was evidence of the imbalances between the fundamental rights and good governance and how such irregularities can be addressed.
In every society, citizens have certain expectations from their governments. Guaranteeing good governance ensures that these expectations are met, and social and economic development is promoted. Inefficient governments result in a society fraught with conflicts and wars. Ensuring good governance is not only dependent on the governments but also the well-informed citizens of the country. The dispute regarding ensuring good governance arises when the government abridges the fundamental rights of citizens. It results in the citizens protesting against the governments and leads to disorder in society. It is due to this reason that the balance between good governance and Fundamental Rights is of primary importance. Following are the principal features of good governance.
- The rule of law– Good governance requires the formulation of a fair legal framework which is enforced by impartial administrative machinery for protecting all the citizens of the country.
- Transparency- Good governance should ensure that government information is directly accessible to all the people, and the decision-making processes of the government are transparent to avoid confusion and corruption in society.
- Responsiveness- The institutions working within the territory of the country must be responsive to the needs of all the citizens of the country and are held accountable in case of violations.
- Consensus oriented- To represent the interest of all the sections of the society, the decisions taken by governments must agree with the views of all the stakeholders.
- Equity and Inclusiveness- The organisation that provides the opportunity for its stakeholders to maintain, enhance, or generally improve their well-being offers the most compelling message regarding its reason for existence and value to society.
- Participation- Participation of all the sections of the society irrespective of social status, gender, sex, caste is essential to address the difficulties faced by the people in society.
Fundamental Rights and DPSP’s (Good Governance)
The DPSP’s are the directives provided to the state for better governance but are not judicially enforceable. In contrast, Fundamental Rights are the rights provided to the citizens of the country and cannot be abridged by the state. The citizens can approach the court in case there is a violation of the fundamental rights.
The fundamental question is what happens when one is inconsistent with the other, or there is a conflict between the two. Initially, the Supreme Court went with the literal meaning and held that in case of disagreement between the two, the Fundamental Rights would prevail over DPSP’s. However, later the Supreme Court was of the view that efforts be made to avoid any conflict between the two by applying the principle of Harmonious Construction.
Although the court continued to rule that Fundamental Rights are superior to DSPS’s, repeated attempts were made to implement the directives given to the state to provide good governance to the people of the country. Efforts were made to avoid the conflict between two provisions which were formulated with similar objectives. The way out was found to lie in the doctrine of harmonious construction, arising out of the canon of interpretation that parts of the same instrument must be read together to reconcile them with one another. Applying this doctrine, the Supreme Court came to adopt the view that in determining the ambit of Fundamental Rights themselves, the court might look at relevant Directive Principles.
Hanif Quareshi Mohd. V State of Bihar
In this case, a new technique of interpretation known as harmonious construction, was propounded. In this case, the court invalidated the ban on cattle slaughter because it was infringing the fundamental right to carry on any trade freely across the country guaranteed under Article 19(1)(g) of the Indian Constitution. In this case, the court held that the government, to give effect to one of the directives of the state under Article 41 infringed the Fundamental Right provided under Article 19 (1) of the Indian Constitution. The court, therefore, held that although there is a need to implement the DPSP’s, however, this should not be done by abridging the fundamental rights of the citizens.
Sajjan Singh v. State of Rajasthan
In this case, the court held that there is a need to interpret the Fundamental Rights in light of the Directive principles. This will not only protect the Fundamental Rights from getting abridged but will also give effect to the directive principles which are fundamental in good governance of the country. The court held that Part IV, is “fundamental in the governance of the country and the provisions of Part III must be interpreted harmoniously with these principles.”
Golak Nath V State of Punjab
In this case, the court reiterated the principle of Harmonious construction by saying that both Fundamental Rights and Directive Principles of State Policies form an “integrated scheme” and are formulated in such a manner as to meet the needs of the changing society.
C. B. Boarding and Lodging v. State of Mysore
In this case, it was held that the Fundamental Rights and Directive Principles of State Policies are both complementary and supplementary to each other. The court also contended that none of the provisions in the constitution is formulated to act as barriers but as facilitators of progress. Also, the court highlighted the flawed belief that the constitution only provides for rights and not duties. While the fundamental rights are provided in part III of the Indian Constitution, the adjacent duties are provided in part IV of the Constitution.
What can be inferred from this judgment is that to establish social order, both the fundamental rights provided to the citizens and the duties given to the state for the smooth functioning of the society must be strictly adhered to. It is only after the balance between these two entities that society can genuinely progress and flourish.
Kesavananda Bharati v. State of Kerala
In this case, the Hon’ble Supreme Court applied the principle of Harmonious Construction to resolve the conflict of whether the Fundamental Rights shall prevail over the Directive Principles of State Policy or vice versa. Since the main purpose of the rule of harmonious construction is that no provision or entry shall lose its essence, the Supreme Court had upheld both Fundamental Rights and Directive Principles of State Policy in this case. The court aimed at striking a fair balance between the interests of an individual and the greater interest or welfare of the society.
Minerva Mills Ltd v. Union of India
The Supreme Court, in this case, held that Fundamental Rights “are not an end in themselves, but are, a means to an end”. It was held that both the Fundamental Rights and DPSP’s together form the conscience of the Constitution and is a resolve towards social resolution. The Indian Constitution was found upon the bedrock of balance between the two. The court contended that giving primacy to any one of the features is equivalent to disturbing the harmony of the constitution of India. This harmony forms the basic structure of the Constitution and to prevent harm to the basic structure of the Constitution, Fundamental Rights and DPSP’s must be interpreted harmoniously and be considered as complementary and supplementary to each other.
In all the judgments discussed, the court repeatedly reiterated the need to create a balance between the Fundamental Rights and DPSP’s, which are fundamental in the good governance of the country. Violation of any one of the principles disturbs the order of society and creates obstructions in the normal working of the society. There are various decisions taken by the governments from time to time that cause an imbalance between Fundamental Rights and good governance by abridging the Fundamental rights of citizens. Following are some of the examples of such acts as to how they cause an imbalance and how the imbalance can be corrected.
Disharmony between Fundamental Rights and Good governance
Right to information and good governance
One of the characteristics of good governance is to ensure that information is freely available, and there is the openness of the decision making processes. The Supreme Court in the State of Uttar Pradesh V. Raj Narain case held that Right to Information is a Fundamental Right under Article 19 (1)(a) of the Indian Constitution. In this case, the Supreme Court remarked that “The people of this country have to know every public act, everything that is done in public by their public functionaries”. In the subsequent cases such as the SP Gupta V. Union of India case and the centre for PIL V. Union of India case, the court propagated the idea of a nationwide law for the right to information. The Right to Information was finally passed in 2005.
On 21st April 2020, Vikrant Togad, an activist, filed an application under the RTI Act seeking information about the PM care fund from the PMO. However, the PMO rejected the appeal by saying that it demanded information on numerous and varied topics, and it referred to two cases. Firstly, the PMO referred to an order of the Chief Information Commissioner in 2009. In that case, the applicant was charged an additional of Rs. 10 for the complaint on varied topics. The applicant then approached the CIC wherein he was charged for only one further question. However, the crucial thing to be noted is that even in this case, the commission did not restrain from providing information as opposed to the present case. Also, the then CIC, Shailesh Gandhi opined that the claim mentioning the application to be concerned with only ‘a single subject matter’ had no legal basis.
The other case was the Supreme Court’s decision in CBSE and others V. Aditya Bandopadhyay and others cases. In this case, the court held that “Indiscriminate demands under the RTI Act for the disclosure of all and sundry information need not be met”. This decision of the court was viewed as anti-RTI and widely criticised.
Good governance ensures that the citizens have information as to whether the public resources are utilised efficiently as promised by the government or not. This ensures a system of institutional checks and balances. However, the instance mentioned above is an example of how the government has failed to ensure good governance, refusing to provide information to the citizens about the utilisation of the PM care fund. The government has been unable to provide accountability and responsiveness. This is a clear indication of the imbalances between Fundamental Rights and good governance.
Right to freedom and good governance
Right to freedom of religion and good governance
Right to freedom of religion is provided under Article 25-28 of the Indian Constitution. Ensuring peace and stability in society and building an environment conducive for the practice of every religion is one of the indicators of good governance. This not only indicates a cooperative society but also towards the government’s resolve to build a secular and tolerant society. The recent acts of cow vigilantism and mob lynching witnessed in India are contrary to this expectation. This has resulted in an atmosphere of fear and mistrust relating to governance emanating out of the imbalances between the Right to freedom of Religion and good governance.
On 20 July 2018, a 20-year-old daily farmer was lynched to death by a mob of gau rakshaks. This is one of the many instances of communal killings in the country. A study conducted on the issue indicated that 45 people were killed in 120 cases of lynchings in India between 2012-2018 and more than half of the reported killings were of the people belonging to the Muslim religion, which is a minority religion in the country. In the majority of the cases reported, the victims were either accused of eating beef or of storing cow meat.
This indicates growing intolerance in the society wherein Muslims were lynched by Hindu crowds for the alleged protection of cows, an animal considered sacred in Hindu beliefs. The scenario points towards utter lawlessness in the society wherein the government has failed to prevent people from following extra-judicial means for administering justice. When the matter of such repeated incidents went to the court, the court suggested that an anti-lynching law be introduced penalising those involved in these heinous crimes. However, the repeated calls for an anti-lynching regulation were ignored, and the government failed to enact such legislation.
This indicates towards a society full of intolerance wherein one community’s religious practises came in the way of others, and the resulting events took a violent turn. Government’s failure in taking action against the perpetrators of violence and assuring the victims and minorities of a secure future is indicative of the imbalance between good governance and the right to freedom of religion. The inequalities in this instance would have been addressed if a proper law would have been formulated, and a transparent investigation of the incidents would have taken place.
Right to freedom of trade
The government in May 2017, decided to impose a nationwide ban on cattle slaughter by issuing a notification titled ‘Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017’ under Article 48 of the Directive Principles of State Policy. The government claimed that the ultimate purpose of this step was to promote animal welfare and prevent the illegal sale of livestock. However, these rules were only applicable to animals that were sold and bought in the market and failed to cover other areas. The ban is ironic since only 30% of the cattle slaughtered are used for consumption, whereas the additional 70% is used for trading purposes. The ban on consumption was questioned on this ground. Also, the ban was only on a few animals and was silent on other forms of cruelty on animals. There was no intelligible differentia made under Article 14 of the constitution.
Therefore, the constitutional validity of this law was challenged in the case of Mohammed Abdul Faheem Qureshi v. Union of India in 2017. The petitioner contended that the ban was violative of their right to free trade and freedom of religion since their religious practices involve slaughtering cattle. The SC held that the total ban on the slaughter of cattle across the country is unconstitutional and violative of Article 19(1)(g) which provides for the right to trade freely across the country. The court upheld the decision held in the case of S. Selvagomathy v. Union of India. The government took the defence that it was implementing one of the directive principles of state policy. The court however held that DPSP’s cannot be implemented in such a manner as to violate the fundamental rights of the citizens. Also, the ban would endanger trade and livelihood of many butchers. The court contended that at the time of the making of the constitution, Article 48 was added to slaughter “the milch and draught cattle” because of the miserable conditions they lived in. Therefore, the Article itself promoted the slaughter of animals instead of discouraging it.
The decision of the government to impose a complete ban on the slaughter of animals pointed towards the fact that the move was only aimed at securing the rights of a particular section of the society. The move ignored the rights of the other section of society. Ensuring an equal and just society is one of the main aims of good governance, and such actions fail to meet this requirement. It is a result of the imbalances between good governance and the right to freedom. The imbalances like these can be addressed by formulating such laws and policies which are favourable to the needs of every section of the society.
Right to life and good governance
One of the primary features of good governance is securing the right to life to every citizen of the country under Article 21 of the Indian Constitution irrespective of the person’s social status. Good governance implies ensuring minimum standards of living, especially to the marginalised sections of the society. It implies instilling justice in the society by framing such laws which cater to the needs of all the sections of the society and helps in providing solutions to the emerging challenges in the society. The Supreme Court in the Olga Tellis and others v. Bombay Municipal Corporation and others case of 1985 held that Right to Life guaranteed under Article 21 also includes Right to earn a livelihood and the state cannot deprive the citizens of this fundamental right except for the procedure established under law.
COVID-19 lockdown- An analysis
In March 2020 the Indian Government announced a series of nationwide lockdowns to prevent the spread of the deadly Coronavirus from incorporating the principle of social distancing in the Indian citizen. The government announced the lockdown under the Disaster Management Act, 2005. What the government ignored was its obligation to provide compensation to lakhs of those migrant workers who lost their livelihood overnight. They were left homeless with no assurance of any kind of wages or relief.
Good governance refers to ensuring an adequate means of livelihood in contrast to providing relief which is inadequate to meet the demands of the targeted beneficiaries. When a plea regarding the right to life of migrant workers was filed in the SC, the central government responded by saying that a financial package of Rs. 1.70 Lakh crores have been provided, which comprises 1 % of GDP. This package is inadequate to provide lakhs of those turned unemployed by the operation of the lockdown.
Good governance ensures procedural rights and the execution of laws. A survey conducted by Strained Workers Action Network (SWAN) of 11,159 migrant workers showed that 96% of the migrant labourers did not receive rations from the government. This indicates a flawed implementation of the government’s action towards providing a financial package to the poor. This is in contrary to the principles of good governance which mandates the establishment of an administrating system which ensures efficient implementation of the government orders.
This decision is one of the many choices of the government, indicating an imbalance in good governance and the fundamental rights. Imbalances of this kind are prevalent in all societies irrespective of the structures of the society. The balance, in this case, could have been struck had the government carved out a proper strategy to address the issues of economic destabilisation and come up with adequate relief packages to meet the demands of the poor dying of starvation and loss of jobs. Ensuring proper implementation of the policy decision would have corrected the imbalance caused.
When good governance turns into Fundamental Rights
Right to education was initially a Directive Principle under Article 45 of the Indian constitution. However, the right was considered so intrinsic for the overall development of the society that it was added as a Fundamental Right under Article 21(A) of the Indian Constitution by the 86th Amendment Act, 2002 which came into effect in 2009. It is important to trace the judicial approach of the case since it will provide an idea of the circumstances in which the Directive principles can turn into Fundamental Rights.
The Supreme Court of India in the Mohini Jain v. State of Karnataka case held that Right to Education forms an inseparable part of the Right to life guaranteed under Article 21 of the Indian Constitution. Right to education is important to live a dignified life. Charging large amounts of fee for providing education is violative of the principles on which the constitution of India was framed. Hence, the state must ensure free education to the people of the country.
The observations in the Mohini case were reiterated in the Unnikrishnan case. The court held that Right to Education should be considered as a fundamental right under Article 21 of the Indian Constitution. But the court diverged from its judgement on the Mohini case in one instance. The court said that the Right to Education is available only to children up to the age of 14 years and not above due to the limited availability of resources with the government. The court also held that for the better development of the society, it is important that Article 21 of the Fundamental Rights is read in ‘harmonious construction’ with Article 45 of the Directive Principles of State Policy.
In the landmark case of M.C. Mehta v State of Tamil Nadu & Ors, it was finally held that Article 45 has been granted the status of a Fundamental Right. The court also held that it is not necessary for a right to be mentioned in Part III to be treated as a Fundamental Right. None of the provisions is superior but is supplementary and complementary to each other.
From the above discussion, it should be clear that good governance is an ideal which is difficult to achieve in its totality. Very few countries and societies have come close to achieving good governance in its totality. However, to ensure sustainable human development, actions must be taken to work towards this ideal to make it a reality.
Similarly, balancing Fundamental Rights and Directive Principles of State Policy is an ideal which is difficult to achieve in its totality. For India, the fight is going to be hard considering the various instances of violation of the Fundamental Rights of citizens through government action. However, with the government’s consistent efforts and a rights-centric approach, it is possible to come close to this milestone.
To achieve this milestone, the Fundamental Rights and the duties laid down for the governments must be harmoniously interpreted and implemented. The government needs to be proactive in its role of ensuring justice in society by keeping a check on the violation of Fundamental Rights. Even the citizenry needs to be active in providing that the governments are working towards balancing fundamental Rights and good governance and are not abridging their fundamental rights. An efficient government and an informed citizenry are indispensable for ensuring a balance between Fundamental Rights and good governance in turn promoting the human development of the society.
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