Fundamental rights are those basic rights of a person that are recognized by the state, protected in the Constitution, and can be enforceable in court. Fundamental rights are such rights which are essential for a person to live as a person. These rights are also known as the basic rights of people. Since these rights are available as rights against the state, it prevent the arbitrariness of the government to some extent. Fundamental rights are guaranteed under Part 3 of the present constitution of Nepal, 2072.
Directive
principles of state policy refer to the set of instructions to the
government by the framers of the Constitution to establish a welfare state.
Directive principles instruct the executive and legislative body of state to
take into account the welfare of citizens while formulating laws and policies and while
also executing them. They are also understood as the philosophy of the
Constitution. Thus, Directive principles are the guidelines provided by the
Constitution for framing the law by the government. Directive principles of
states are mentioned in part 4 of
the Constitution of Nepal.
Relations between Fundamental rights and Directive principles
• The relationship between fundamental
rights and directive principles is of integral character. If they are
separated and studied separately, perhaps the meaning and objective of the
constitution could not be achieved, in particular objectives of protecting the rights of the people.
• The fundamental rights generally limit
the power of the state and it provides limitation upon the state action, while
directive principles provide guidelines for the government/state in terms of
their day-to-day functioning/operation.
• Directive principles in fact are
designed to extend and protect fundamental rights. Directive principles in
other words can be considered as policies of the state which later are usually
reflected in laws.
• The
relationship between Fundamental rights and directive principles of state
policies can be seen in three different perspectives. These are as follows:
- Conservative
Approach
- Moderate
Approach
- Supremacy
Approach
a.
Conservative Approach
The conservative approach considers
fundamental rights to be superior to the directive's principles. Therefore, the
directive principles must give way to the former irreconcilable in the conflict
between the two.
b.
Moderate Approach
• The
moderate approach put forward the concept of harmonization between fundamental
rights and directive principles. It states that both are equally important and
therefore every conflict must be resolved by harmonization.
c.
Supremacy Approach
• The
supremacy approach advocates the supremacy of Directive Principles over Fundamental rights. It opines that the
constitution recognizes directive principles as fundamental in the
governance of the country and the state has to apply these
principles in law making. It states that the 'binding nature of law doesn't cease
to be so merely because it cannot be enforced.
Related cases
• Keshavanand Bharati v. State of
Kerala 1973: “There can be no doubt that the object of the fundamental rights
is to ensure the ideal of political democracy and prevent authoritarian rule,
while the objective of the Directive Principles of State Policy is to establish
a welfare State where there is economic and social freedom without which
political democracy has no meaning.”
• C.B. Boarding and Lodging vs. State
of Mysore 1970: “We see no conflict on the whole between the provisions
contained in Part III and Part IV. They are complementary and supplementary to
each other.”
• Yogi
Narharinath et al. Vs Hon. Prime Minister Girija Prasad Koirala et al.: This
case held that "The directive principles of state and policies cannot be
enforced by the Court, however, if the government makes any decisions against the
directive principles and policies of states, it is not that court cannot point
it out."
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