Judicial Creativity: A Magic Band

DPSP’s risen to standard of Fundamental rights:

This paper is an attempt to draw the attention of readers on the present day high degree of Judicial Creativity. If we take a look towards DPSP’S (Directive Principle Of State Policy) then in today’s context we find them risen  to the standard of Fundamental Right’s  which were considered once to be surplus, a rope of sand and mere moral precepts. At one time the role of the State was restricted of merely acting as a Police State whose main work was maintenance   of law and order, protection of life and personal liberty and property of the subject. Such a restrictive role of State has no place in modern era of Welfare State where role of State knows no boundaries and presses on well being of people and promotion of prosperity of subjects. Gone are the days when narrow perception of Police State was given stage  , DPSP’S were taken to be mere moral precepts without legs to stand rather in present context we find some of the DPSP’s enforceable as being risen to the standard of Fundamental Right’s(F.R’s).

DPSP’s read into Fundamental Right’s (F.R’s):

1) Article 38 (State to secure a social order for the promotion of welfare of the people)

Article 38 r/w Article 21

2) Article 39 A( Equal Justice and Free legal aid)

Article 39 r/w Article’s 21 and 14

3) Article 39 (d) (Equal pay for equal work)

Article 39(d) r/w Article’s 14 and 16

4) Article 39(f)  (Children are given opportunities and facilities to develop  in a healthy manner)

Article 39(f) r/w Article 21

5) Article 45 (Provision for childhood care and education to children below age of six years)

Article 45 r/w Article 21 A

6) Article 46 (Promotion of educational and economic interests of S.C, S.T  and other weaker sections)

Article 46 r/w Article’s 21 and 16

7) Article 48A (Protection and improvement of environment and safeguarding of forests and wild life )

Article 48A r/w Article 21

JUDICIAL CREATIVITY:

Duty under the above Fundamental Directives can be enforced through writ petitions based on above F.R’s respectively. They may be treated as a part of Fundamental Rights.

In Kesvananda Bharati V. State of Kerala [1] , the Supreme Court has said that “ Fundamental rights and directive principles aim at the same goal of bringing about a social revolution and establishment of a welfare state and they can be interpreted and applied together. They are supplementary and complementary to each other “. It can well be said that directive principles prescribed the goal to be attained and fundamental rights lay down the means by which that goal is to be achieved.

In Unni Krishnan v. State of A.P.[2] the Supreme court has reiterated the same principle that the “ fundamental rights and directive principles are supplementary and complementary to each other and the provisions in Part III should be interpreted having regard to the Preamble and Directive Principle of state policy(DPSP’s).

CONCLUSION:

We herby reach to the conclusion that the beauty of development of our Constitutional law is that many of the directive principles have been enrolled into F.R’s  by high degree of Judicial Creativity. In this way the legal utility and recognition of the D.P.S.P’s   have increased with the times manifold and have risen to the status of Fundamental Right’s.

BY: Ritam Arora

B.A,L.L.B(H) , Sem. 7^th , Amity Law School , Lucknow.

Email: aroraritam@gmail.com

BIBLIOGRAPHY:

1)      Jain, Prof. M.P.,Indian Constitutional Law , Sixth Edition (LexisNexis Butterworths , Wadhwa Nagpur , 2010)

2)      Dr. Pandey J.N, The Constitutional Law of India, 47^th Edition ,Central Law Agency.