Article 13(2) as the Ceiling: Why Directive Principles Can Never Override the Prohibition on Rights-Abridging Laws
- Umang
- 1 day ago
- 17 min read
Table of Contents
Introduction: The Constitutional Hierarchy That Resolves the Tension
Article 37: The Non-Justiciability of Directives — and Its Limits
The Tussle Begins: Constitutional Amendments as the Legislative Response
Minerva Mills: Parliament's Bid for Absolute Priority and Its Defeat
The Relationship Correctly Understood: Complementarity, Not Hierarchy in Reverse
The Goals of Part IV — Achieved Only Through the Means of Part III
Introduction: The Constitutional Hierarchy That Resolves the Tension
Few questions in Indian constitutional law have generated more litigation, more constitutional amendments, and more doctrinal controversy than this: when the State pursues the goals of social justice enumerated in Part IV of the Constitution — the Directive Principles of State Policy — and those goals require legislation that abridges or takes away a fundamental right guaranteed by Part III, which yields?
The answer, settled by decades of Supreme Court jurisprudence culminating in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, and I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, is unambiguous: Article 13(2) is the constitutional ceiling.
No legislation can take away or abridge the rights conferred by Part III and escape the consequence of voidness — not even legislation enacted expressly to implement a Directive Principle. The Directive Principles, however morally compelling and politically urgent, cannot override this categorical prohibition on the legislative power of the State.
This does not mean that Part IV is unimportant — far from it. The Directives are the conscience of the Constitution, and the courts have used them extensively to interpret fundamental rights expansively and to uphold restrictions on those rights. But the mechanism through which Directives interact with fundamental rights is interpretation and complementarity, not override.
This blog traces the constitutional architecture of that relationship: the absolute prohibition in Article 13(2), the Champakam non-override principle, the legislative attempts through constitutional amendments to reverse that hierarchy, and the Supreme Court's insistence — through Minerva Mills and beyond — that destroying Part III to achieve Part IV is to subvert the Constitution itself.
Article 13(2): The Categorical Prohibition
The Text and Its Effect
Article 13(2) of the Constitution of India provides:
"The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void."
This is a prohibition cast in categorical terms. It operates as a direct limitation upon the legislative power of the State — Union and States alike. When a legislature makes a law contravening a fundamental right, the position is the same as if it had no power to legislate over the subject-matter of the legislation at all. The declaration of invalidity by the Supreme Court goes to the root of the legislative power — Behram Khurshed Pesikaka v. State of Bombay, 1955 (1) SCR 618 : AIR 1955 SC 123.
Post-Constitution Laws Are Void Ab Initio
In view of Article 13(2), the fundamental rights constitute express limitations upon the legislative power of the legislature making a post-Constitution law. No distinction can be drawn between a post-Constitution law which is ultra vires (i.e., beyond legislative competence) and a law which contravenes a fundamental right — Deep Chand v. State of U.P., AIR 1959 SC 649 : 1959 (2) SCR 8. The result is stark: a post-Constitution law which violates a fundamental right is void ab initio — stillborn from the moment of its enactment — and no subsequent amendment of the Constitution can revive such a law unless such amendment is retrospective.
This is the foundational difference between Article 13(1) — which deals with pre-Constitution laws (where the doctrine of 'eclipse' operates, and removal of inconsistency can revive the law) — and Article 13(2), which deals with post-Constitution legislation, for which there is no such revival.
What 'Law' Means Under Article 13
Article 13(3)(a) defines 'law' broadly and inclusively: it includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Intra vires statutory orders, orders made in exercise of power conferred by statutory rules, and customs having the force of law all fall within this definition. Administrative orders having no statutory sanction, government circulars, and executive instructions do not — but they remain separately challengeable if they violate fundamental rights.
Article 37: The Non-Justiciability of Directives — and Its Limits
Article 37 declares that the Directive Principles shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
The Directives are therefore mandatory in governance terms but non-justiciable in court. Their non-justiciable character gives rise to three important consequences.
Directives Do Not Confer Legislative Competence
The Directives, per se, do not confer upon or take away any legislative power from the appropriate Legislature — Deep Chand v. State of U.P., AIR 1959. Legislative competence must be sought from the Legislative Lists contained in the Seventh Schedule. A State cannot claim power to legislate on a subject assigned to the Union simply because the legislation would implement a Directive, nor can the Union claim such power for State List subjects.
No Court Can Void a Law for Contravening a Directive
The courts cannot declare any law as void on the ground that it contravenes any of the Directive Principles — Deep Chand v. State of U.P., AIR 1959. Neither are courts competent to compel the Government to carry out any Directive or to make any law for that purpose — U.P.S.E. Bd. v. Harishankar Jain, AIR 1979. A court cannot order the State to implement free compulsory education under Article 45, or to provide adequate means of livelihood to every citizen under Article 39(a), even though these are constitutional duties.
The legislative power is thus both guided and constrained by two different provisions operating simultaneously: guided by Article 37 (towards Directives) and constrained by Article 13(2) (away from rights-abridgement). The two provisions are not in conflict — but when the State's pursuit of a Directive would require it to abridge a fundamental right, Article 13(2) prevails.
Champakam Dorairajan: The Foundational Statement
The fundamental relationship between Part III and Part IV was stated, with constitutional clarity, in the very first years of the Republic. In State of Madras v. Champakam Dorairajan, 1951 SCR 525 : AIR 1951 SC 226, the Supreme Court struck down the Madras Communal Government Order, which reserved seats in State medical and engineering colleges on a communal basis. The State defended the order partly on the basis that it served the purposes of Article 46 of the Constitution (promotion of educational interests of weaker sections).
The Supreme Court was unequivocal. Though it is the duty of the State to implement the Directives, it can do so only subject to the limitations imposed by the different provisions of the Constitution upon the exercise of legislative and executive power. Article 13(2) prohibits the State from making any law which takes away or abridges the fundamental rights conferred by Part III. The Directive Principles cannot override this categorical limitation upon the legislative power of the State — a position expressly affirmed in Hanif Quareshi Mohd. v. State of Bihar, AIR 1958.
Champakam Dorairajan established the proposition that has never since been truly displaced: in any direct conflict between a Directive Principle and a Fundamental Right, the Fundamental Right, backed by Article 13(2), prevails. The Directive does not give the State power to contravene the right.
The Tussle Begins: Constitutional Amendments as the Legislative Response
The First Amendment (1951) and the Ninth Schedule
The Government's immediate response to Champakam Dorairajan was the Constitution (First Amendment) Act, 1951. Two approaches were taken. First, Articles 15 and 29(2) were amended to permit special provisions for the advancement of backward classes — overriding the discrimination-prohibiting effect of those provisions. Second — and far more significantly — Article 31B was inserted, creating the Ninth Schedule: a list of specified laws which were to be immune from challenge on the ground of contravention of any fundamental right.
The Ninth Schedule grew rapidly from 13 enactments in 1951 to 284 by 1995. Each addition was a further legislative attempt to insulate rights-abridging laws from Article 13(2) challenge. The judiciary's eventual response — that Ninth Schedule additions after 24 April 1973 are not immune from Basic Structure review — is traced below.
Article 31C: The 25th Amendment and Its History
The next major legislative move came with the Constitution (25th Amendment) Act, 1971, which inserted Article 31C. As it originally stood, Article 31C shielded from challenge under Articles 14, 19, and 31 any law enacted to implement the Directives in Articles 39(b) and 39(c) (equitable distribution of material resources and prevention of concentration of wealth). The second part of the provision further oused judicial review of declarations by the legislature that the law was enacted for these purposes.
The Supreme Court's response in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 was to uphold the first part — the substantive shield — as valid, while striking down the second part — the ouster of judicial review — as unconstitutional, on the ground that judicial review is a basic feature of the Constitution which cannot be done away with by amendment.
Kesavananda Bharati: Validation with Limits
Kesavananda Bharati thus produced a carefully calibrated outcome on Article 31C:
A law fulfilling the requirements of Article 31C — genuinely giving effect to the policy underlying Article 39(b) or (c) — is immune from attack on the ground of contravention of Articles 14 and 19.
The Court retains the power to examine whether the impugned enactment truly gives effect to Article 39(b) or (c), regardless of any legislative declaration.
If the law is found not to relate to Article 39(b) or (c), it remains open to challenge under Articles 14 and 19.
If the law comes under Article 39(b) or (c), it may still be challenged on other grounds — for instance, want of legislative competence, or contravention of some other provision of the Constitution.
The Kesavananda majority thus permitted a limited, judicially supervised suspension of Article 13(2) for laws implementing two specific Directives — but absolutely no more.
Minerva Mills: Parliament's Bid for Absolute Priority and Its Defeat
The 42nd Amendment's Attempt
Parliament's most ambitious attempt to reverse the Champakam-Kesavananda hierarchy came with the Constitution (42nd Amendment) Act, 1976. Section 4 of that Act extended the protection of Article 31C — previously confined to Articles 39(b) and (c) — to every Directive in Part IV. This meant that any law purportedly implementing any Directive could no longer be challenged under Articles 14 or 19.
Section 55 of the same Amendment simultaneously inserted Clauses (4) and (5) into Article 368, declaring that no amendment of the Constitution could be called in question in any court and that Parliament's constituent power had no limitation whatsoever.
Both were frontal assaults on the constitutional position. The first would have given Directives categorical priority over all of Articles 14 and 19. The second would have immunised those very amendments from judicial review.
The Supreme Court's Response: Balance as Basic Structure
A five-judge bench of the Supreme Court, in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, delivered its celebrated response. Both provisions were struck down as unconstitutional.
On the extension of Article 31C, the Court held that the attempt to give all Directives priority over Articles 14 and 19 destroyed the essential balance between Part III and Part IV. On Section 55 of the 42nd Amendment, the Court held that it purported to destroy the basic feature of judicial review.
The reasoning on balance was constitutional architecture, not judicial preference: the Constituent Assembly had made it the responsibility of the Government to adopt a middle path between individual liberty and public good. Fundamental rights and Directive Principles have to be balanced. That balance can be tilted in favour of the public good — but it cannot be overturned by completely overriding individual liberty. This balance is itself an essential feature of the Constitution.
To destroy the guarantees given by Part III in order to purportedly achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure — I.R. Coelho v. State of T.N., (2007) 2 SCC 1 : AIR 2007 SC 861.
The result was that Article 31C reverted to its pre-1976 position: protecting only laws implementing Article 39(b) and (c), and only under judicial supervision as to their genuine nexus with those provisions.
I.R. Coelho: The Doctrine Consolidated
I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, provided the most comprehensive statement of the relationship between fundamental rights and the means available to the State to implement Directives. The nine-judge bench confirmed that while Article 31B (the Ninth Schedule mechanism) is itself constitutionally valid, laws placed in the Ninth Schedule after 24 April 1973 are not immune from challenge on the basis of the Basic Structure doctrine.
To legislatively override entire Part III of the Constitution by invoking Article 31B would not only make fundamental rights overridden by directive principles — it would also defeat fundamentals such as secularism, separation of powers, equality, and judicial review, which are the basic features of the Constitution and essential elements of the rule of law, and that too without any yardstick or standard being provided under Article 31B — I.R. Coelho, (2007) 2 SCC 1, para 127.
The constitutional principle, as I.R. Coelho confirmed, is this: Parts III and IV together constitute the core of commitment to social revolution; the goals set out in Part IV have to be achieved without the abrogation of the means provided for by Part III.
The Relationship Correctly Understood: Complementarity, Not Hierarchy in Reverse
The Two Wheels of the Chariot
Notwithstanding the absolute prohibition in Article 13(2), the Supreme Court has consistently held — most emphatically since Kesavananda Bharati — that there is no disharmony between the Directives and the Fundamental Rights. The Fundamental Rights and the Directive Principles are the two wheels of the chariot as an aid to make social and economic democracy a truism — Jilubhai Nanbhai Khachar v. State of Gujarat, 1995.
The Constitution aims at a synthesis of the two; the Directive Principles constitute the conscience of the Constitution. Together they form the core of the Constitution, and they are not exclusionary but complementary to each other — State of M.P. v. Pramod Bhartiya, (1993).
Harmonious Construction
The courts are directed to make every attempt to reconcile the Fundamental Rights with the Directive Principles — remembering that the Directives were left non-enforceable in the courts to give the Government sufficient latitude to implement them from time to time according to capacity and circumstances — State of T.N. v. Abu Kavur, L., AIR 1984 SC 326.
The Court may look at the Directive Principles in interpreting a Fundamental Right and adopt that interpretation which makes the right contain a Directive Principle instead of rejecting it. Though the Directives cannot override the Fundamental Rights, in determining the scope and ambit of the Fundamental Rights the Court may not entirely ignore the Directive Principles and should adopt the principle of harmonious construction so as to give effect to both as much as possible — Kesavananda Bharati, (1973).
The Courts should uphold, as far as possible, legislation enacted by the State to ensure 'distributive justice' — laws which seek to remove inequalities and attempt to achieve a fair division of wealth among members of society, redressing unconscionable or unfair bargains — Lingappa Pochanna Appealwar v. State of Maharashtra, AIR 1985. The Court applies the Directives to adjust the ambit of Fundamental Rights themselves — but not to override them.
Part IV as Interpreter — Not Overrider — of Part III
Only when an action of the State is taken to give effect to any of the provisions of Part IV which is not otherwise ultra vires the Constitution or does not offend the principles embodied in Part III may the same be upheld — Delhi Development Authority v. Joint Action Committee, (2008) 2 SCC 672. An action in consonance with Part IV is considered a reasonable action — but this does not amount to inferring that any action not in consonance with Part IV would be ultra vires, nor that consonance with Part IV gives immunity from Part III — Ashoka Smokeless Coal India (P) Ltd. v. Union of India, (2007).
The clarification in Akhil Bharat Goseva Sangh (3) v. State of A.P., (2006) 4 SCC 162, is decisive: the directive principles and the fundamental duties cannot in themselves serve to invalidate a legislation or a policy, nor do they by themselves validate one that infringes fundamental rights.
What Directives Can and Cannot Do to Fundamental Rights
What They CAN Do
Directive Principles legitimately influence fundamental rights in several powerful ways:
1. They colour the test of 'reasonableness' under Article 19: For judging the reasonability of restrictions imposed on Fundamental Rights the relevant considerations include the Directive Principles in Part IV. A restriction placed on any Fundamental Right, aimed at securing Directive Principles, will be held as reasonable and hence intra vires — subject to conditions — State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534. Ordinarily, any restriction which has the effect of promoting or effectuating a Directive Principle can be presumed to be a reasonable restriction in the public interest — Workmen v. Meenakshi Mills Ltd., (1992) 3 SCC 336. Implementation of a Directive is within the expression 'restriction in the interests of the general public' under Article 19(6).
2. They expand the content of Fundamental Rights: The Court reads Directive Principles into Fundamental Rights to give the latter a broader, more socially just ambit. Article 14's content has been shaped by Article 39(d); Article 21 has been expanded by Articles 39(e), 41, 42, and 43 to encompass rights to livelihood, health, and dignity.
3. They inform statutory construction: Where two alternative constructions of a statute are available, courts prefer that which is in conformity with the Directives.
4. They validate reasonable restrictions under Articles 31A and 31C: Laws genuinely giving effect to Articles 39(b) and (c) are protected from challenge under Articles 14 and 19 by Article 31C — a constitutionally sanctioned suspension of the otherwise absolute Article 13(2) prohibition, confined to those specific Directives and subject to judicial verification of the genuine nexus.
What They CANNOT Do
1. A Directive cannot authorise a law that directly conflicts with a Fundamental Right — such a law is void under Article 13(2). The Directive Principles can so operate as to supplement each other in aiming at the same goal — but they cannot be used to deny the protection of fundamental rights — Mangru v. Commissioners of Budge Budge, (1951).
2. A Directive cannot override the categorical limitation in Article 13(2). As the Supreme Court held in Hanif Quareshi Mohd. v. State of Bihar, AIR 1958: Art. 13(2) prohibits the State from making any law which takes away or abridges the fundamental rights conferred by Part III. The Directive Principles cannot override this categorical limitation upon the legislative power of the State.
3. A Directive cannot provide legislative competence that the Seventh Schedule does not. The Directive merely obliges the State to legislate within its competence; it does not expand that competence.
The Two Limitations Formula
The Supreme Court in Mirzapur and subsequent decisions articulated a precise two-limitations formula: a restriction placed on any Fundamental Right, aimed at securing Directive Principles, will be held as reasonable and hence intra vires, subject to two limitations:
First — it must not run in clear conflict with the Fundamental Right (i.e., it must be capable of classification as a 'reasonable restriction', not an outright taking-away or abridgement).
Second — it must have been enacted within the legislative competence of the enacting Legislature under the distribution of powers in Part XI Chapter I of the Constitution.
These two limitations preserve both Article 13(2) and the allocation of legislative powers — ensuring that Directives can shape the manner and reasonableness of restrictions, but cannot authorise that which the Constitution's text and structure forbid.
The Goals of Part IV — Achieved Only Through the Means of Part III
The I.R. Coelho formulation captures the entire doctrine in a single sentence: the goals set out in Part IV have to be achieved without the abrogation of the means provided for by Part III.
This is not a preference for individual liberty over social justice. It is a constitutional architecture for pursuing social justice while preserving the rule of law. The framers understood that a State powerful enough to take away fundamental rights in the name of social goals is also powerful enough to abuse that power in the name of goals that are less socially beneficent. Article 13(2) is the structural safeguard against that possibility.
Parliament is competent to amend the Constitution to override or abrogate any of the Fundamental Rights in order to enable the State to implement the Directives — Kesavananda Bharati, (1973) — so long as the basic features of the Constitution are not affected. Even by constitutional amendment, therefore, the power to set aside fundamental rights in favour of Directives is not unlimited: it is constrained by the Basic Structure doctrine, which the Supreme Court has held includes the essential balance between Part III and Part IV.
The social justice vision of Part IV and the individual liberty protection of Part III are not enemies. They pursue the same constitutional vision — a just, equal, and free society — through complementary means. Article 13(2) is the guarantee that in pursuing the former, the latter is not destroyed.
Conclusion: Article 13(2) as Constitutional Architecture
Article 13(2) is the most structurally important sentinel in Part III of the Constitution. Its operation is simple in terms but profound in implication: the State shall not make any law taking away or abridging fundamental rights, and any such law is void.
The persistent legislative attempts to circumvent this prohibition — through the Ninth Schedule, Article 31C, and the 42nd Amendment's unlimited amending power — were all defeated by the Supreme Court's insistence that the balance between Part III and Part IV is itself a constitutional value that cannot be overturned. The Directive Principles are the conscience of the Constitution; but the Fundamental Rights are its ark — and the two must coexist, with neither permitted to destroy the other.
For practitioners, this means that any law challenged as violative of a Fundamental Right cannot be saved merely by pointing to its consonance with a Directive Principle. The law must independently satisfy the requirements of Part III: it must be within legislative competence, must fall within the permissible grounds of restriction where restrictions are permitted, and must be reasonable.
A Directive may tilt the balance in favour of upholding the restriction — but it cannot transmute a taking-away into a mere restriction, nor can it override the Constitution's express prohibition.
Frequently Asked Questions
Q: What does Article 13(2) say and what is its significance?
Article 13(2) prohibits the State from making any law which takes away or abridges the rights conferred by Part III (Fundamental Rights), and declares that any law made in contravention of this clause shall, to the extent of the contravention, be void. Its significance is that it operates as an absolute ceiling on legislative power — a post-Constitution law violating a fundamental right is void ab initio and cannot be revived by subsequent constitutional amendment unless that amendment is retrospective.
Q: Can Directive Principles justify laws that abridge Fundamental Rights?
No. The Directive Principles cannot override the categorical limitation upon the legislative power of the State imposed by Article 13(2) — Hanif Quareshi Mohd. v. State of Bihar, AIR 1958. The duty to implement the Directives must be discharged subject to the limitations imposed by the Constitution's provisions on legislative and executive power. Directives can make a restriction on a Fundamental Right more readily classifiable as 'reasonable' under Articles 19(2)–(6), and Article 31C provides limited protection for laws implementing Articles 39(b) and (c) — but neither of these operates as a general licence to abridge fundamental rights.
Q: What happened to Parliament's attempt through the 42nd Amendment to give Directives absolute priority over Fundamental Rights?
The Constitution (42nd Amendment) Act, 1976 extended the protection of Article 31C to all Directives and also declared that no constitutional amendment could be questioned in any court. Both provisions were struck down by the Supreme Court in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, as unconstitutional — the first because it destroyed the essential balance between Part III and Part IV, which is itself a basic feature of the Constitution; the second because it purported to destroy judicial review, another basic feature.
Q: What is Article 31C and what is its current scope?
Article 31C was inserted by the 25th Amendment Act, 1971. In its constitutionally valid form (post-Minerva Mills), it provides that a law enacted to give effect to the policy of the State towards securing the principles in Articles 39(b) and (c) shall not be deemed void on the ground of inconsistency with Articles 14 or 19. The Court retains the power to determine whether the impugned law genuinely seeks to give effect to those Directives. The 42nd Amendment's extension of Article 31C to all Directives was struck down by Minerva Mills and never restored.
Q: How do Directive Principles legitimately influence Fundamental Rights if they cannot override them?
The Supreme Court has identified four modes of legitimate interaction: (i) Directives colour the 'reasonableness' test under Article 19 — restrictions furthering Directives are presumed reasonable; (ii) Directives inform the interpretation of Fundamental Rights — courts read Part IV to expand the content of Part III; (iii) Directives guide statutory construction — courts prefer constructions that align with Part IV; and (iv) Directive-implementing laws under Article 31C for Articles 39(b) and (c) receive limited immunity from Articles 14 and 19. In each case, the mode is interpretation or legitimate restriction, not override.
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