Assignment Topic: Fundamental Principles of State Policy

SL. Contents Page

NO. NO.
1 Introduction 2

2 These Principles laws or not 3-4

3 Utility of the Fundamental Principles of State Policy in the

5-6
Constitution

4 Relationship between fundamental rights and fundamental principles

6
of state policy

5 Distinction between fundamental rights and fundamental principles of

7
state policy

6 Constitutional Status of the Fundamental Principles of State Policy

8
incorporated in the Constitution of Bangladesh

7 Acting as a guide to the interpretation 8-9

Nature and judicial enforceability of the Fundamental Principles of

State Policy

Kudrat E-Elahi V. Bangladesh

8 10-13

Aftabuddin V. Bangladesh and others,

Secretary, Ministry of Finance, Government of Bangladesh

V. Mr. Md. Masdar Hossain & others,
 9 Conclusion 14

Introduction

The Constitution of Bangladesh embodies in its part II certain directions to the State terming
them as 'Fundamental Principles of State Policy. The Constitution itself terms these as
Principles', not 'laws'.1 Apart from setting certain ideological objectives, interestingly, this part II
contains also the provisions regarding basic necessities which says that It shall be a fundamental
responsibility of the State to attain, through planned economic growth, a constant increase of
productive forces and a steady improvement in the material and cultural standard of living of the
people, with a view to securing to its citizens’2 the basic necessities and rights, like food,
clothing, shelter, education, medical care, right to work, etc. This part in fact contains certain
basic duties of the State and certain basic necessities of the type of economic human rights of the
people are dependent on the performance of the above duties properly by the State. With the
development of the concept of 'welfare state' in fact this trend has been developed on political
grounds to impose more duties on the state without assessing the fact whether the State has the
actual ability to perform it or not based on its economic strength. The prime characteristic of
these principles is that these are not judicially enforceable and act as guidelines to the state; and
many Constitutions of the modern world also contain such principles.

1
Article 7 of the Constitution of Bangladesh.
2
Article 15 Ibid.

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These Principles laws or not:

Article 7 makes it clear that the Constitution is the supreme law of the land and the same has
been made more clear by adding the words'... and if any other law is inconsistent with this
Constitution that other law shall, to the extent of the inconsistency, be void’. For example, if the
parliament enacts any law violating any of the Fundamental Rights enshrined in the Constitution
that law will be void. But it appears that the Fundamental Principles of State Policy are not laws
in the sense that if the parliament enacts any law violating any of these Principles that law will
not be void since these Principles are not judicially enforceable as is mentioned in Article 8(2) of
the Constitution. Thus this constitutional position of the Fundamental Principles of State Policy
gives rise to a paradox since these are the parts of the supreme law though they are not laws in
themselves.

Analyze the issue from a jurisprudential perspective. In discussing the nature of law3 Sir Fredrick
Pollock has made the following observations:
"In one sense, we may well say that there is no law without a sanction. For a rule of law
must at least be a rule conceived as binding, and a rule is not binding when any one to
whom it applies is free to observe it or not as he thinks fit. To conceive of any part of
human conduct as subject to law is to conceive that the actor's freedom has bounds which
he oversteps at his peril." "...4On the whole the safest definition of law in the lawyer's
sense appears to be a rule of conduct binding on members of a commonwealth as such."5

Hedge J. said in his Rau Lectures:

3
Jurisprudence and Legal Essays,selected and introduced by A.L.Goodheart (1961)
4
Ibid.pp. 13-14
5
Ibid.p.15

2
 "... the view that the principles were not binding if they were not enforceable by law,
originated with John Austin, and Kelsen propounded a similar view. However, Prof.
Good heart and Roscoe Pound took a different view. According to them, those who are
entrusted with certain duties will fulfill them in good faith and according to the
expectations of the community."6
In this connection Seervai commented rejecting the above contention made by Hedge J.:
Hedge J. makes no reference to the exposition of the nature of law by Sir Fredrick
Pollock in his Jurisprudence and Legal Essays.... However, Sir Fredrick Pollock
emphasized the point that the ordinary meaning of law, as given in the Oxford Dictionary,
(1903) namely, "The- body of rules, whether proceeding from formal enactment or from
custom, which a particular state or community, regard as binding on its members or
subjects." Our founding fathers did not treat framing of our Constitution as a place where
a conflict between eminent jurists should be resolved. They used "law" in its plain
ordinary sense of" a rule enacted or customary in a community and recognized as
enjoining or prohibiting certain actions and enforced by the imposition of penalties". The
juristic analysis of law by Prof. Goodheart and Prof. Roscoe Pound can have no relevance
to the society and it is simply not true that persons entrusted with the duty of
implementing the directives will strive in good faith to implement them according to the
expectations of the community.7

Thus, it appears that from this jurisprudential perspective also that the Fundamental Principles of
State Policy as embodied in the Constitution of Bangladesh are not laws in the sense of
enforcement. Justice Mustafa Kamal rightly commented that these are not laws and to term it as
laws will be unconstitutional as he says" It is the Law of the Constitution itself that the
fundamental principles of state policy are not laws themselves but 'principles'. To equate
'principles' with 'laws' is to go against the Law of the Constitution itself."8

6
Hedge,Directive principles of state policy in theConstitution India
7
Seervai,H.M.Constitutional Law of India, 4th ed. Universal Book Traders,DELHI,2002,VOL.2,AT P.1929.
8
Kudrat E-Elahi V Bangladesh,44DLR (AD) 319,p.346 para 84.

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Utility of the Fundamental Principles of State Policy in the Constitution:

The utility and the significance of these principles have been aptly described by M.C. Setalvad,
former Attorney-General of India, who says that although the Directive Principles of State
Policy—
”... confer no legal rights and create no legal remedies, they appear to be like an
instrument of instructions, or general recommendations addressed to all authorities in the
Union reminds them of the basic principles of the new social and economic order which
the Constitution aims at the building. These fundamental axioms of State policy,
thought of no legal effect, have served as useful beacon-lights to courts. It has been held
in the context of the Directive Principles that legislation making the land resources of the
country effectively available to the larger mass of the cultivating community is the
acquisition of the lands for a public purpose. Restrictions imposed by laws on the
freedom of the citizen may well be reasonable if they are imposed in furtherance of the
Directive Principles. Thus these principles have helped the courts in exercising their
powers of judicial review. They will, therefore, not only form a dominating background
to ail state action, legislative or executive but also a guide, in some respects, to courts.
The directive principles are but an amplification of the preamble of the Indian
Constitution which bases the authority of the Constitution of India of the solemn resolve
of the people of India to secure to all its citizens Justice in the social, economic and
political fields; Liberty iii all spheres; Equality of status and opportunity, and the
promotion among them all of Fraternity assuring the dignity of the individual and the
unity of the Nation."9

9
Mahajan, V.D. Constitutional Law of India, 1991,7th ed.,p.368

4
Thus we can sum up the utility of the Directive Principles in the following points;
1. An instrument of instructions to all authorities within the state.

2. Useful beacon-lights to courts.

3. Important tool in exercising power of judicial review.

4. Utility in interpreting Constitution.

5. Utility in interpreting other laws.

6. Utility as the ideology.

7. Utility as setting the goal.

Relationship between fundamental rights and fundamental principles of state policy

Obviously, the Fundamental Principles of State Policy are not judicially enforceable whereas the
fundamental rights are enforceable in the courts as mentioned by articles 8 and 26. It seems to
give higher legal status to the fundamental rights in comparison with the Fundamental Principles
of State Policy. But on the other hand article 47(1) incorporates an interesting and significant
provision regarding the relationship between these two.
It provides that no law shall be deemed to be void on the ground that it is inconsistent
with, or takes away or abridged, any of the fundamental rights, if Parliament in such law
(including, in the case of existing law, by amendment) expressly declares that such
provision is made to give effect to any of the fundamental principles of state policy set
out in part II of this Constitution. This provision seems to give higher legal status to the
Fundamental Principles of State Policy in comparison with the fundamental rights.
So I think it will not be wise to term any of these two as superior to another because it seems that
the Constitution has maintained a balanced relationship between these two.

5
Distinction between fundamental rights and fundamental principles of state policy

Following points of differences between fundamental rights and fundamental principles of state
policy may be mentioned here:
1. As regards judicial enforceability: Fundamental rights are judicially
enforceable,10 though the fundamental principles of state policy cannot be
enforced in the courts.11

2. As regards requirement of legislation for the implementation: Fundamental

rights will be enforced and be implemented directly in the form they are
mentioned in the Constitution. Whereas, for the implementation of the
fundamental principles of state policy new legislation is required in conformity
with the policy. Thus, state policy can only be implemented through other new
legislation.

3. As regards taking away legislative power: The fundamental principles of state

policy does not restrict the legislative power, rather that merely formulates certain
policies to be followed by the legislature. But the fundamental rights inserted in
the Constitution of Bangladesh take away certain legislative power imposing the
restriction explicitly in Article 26 that no law in violation of these rights can
validly be passed.

10
See Articles 26 and 44 of the Constitution of Bangladesh.
11
See Article 8 of the Constitution of Bangladesh.

6
 4. As regards violation and declaration of law as void: The court can not declare
a law as void on the alleged ground of violation of any of the fundamental
principles of state policy. Whereas any law passed violating any of the
fundamental rights will be declared by the competent court as null and void.

Constitutional Status of the Fundamental Principles of State Policy incorporated in

the Constitution of Bangladesh

'The first postulate is that these are mentioned in the Constitution of Bangladesh as principles,
not as laws, and in fact whole part II wherein These principles are embodied only with
principles, not laws'.
However, the status and the functions of these principles are clearly mentioned in article 8(2) of
the Constitution of Bangladesh, they are as follows:

1. These Principles shall be fundamental to the governance of Bangladesh,

2. shall be applied by the State in the making of laws,

3. shall be a guide to the interpretation of the Constitution and of the other laws of
Bangladesh,

4. shall form the basis of the work of the State and of its citizens; but

5. shall not be judicially enforceable.

Acting as a guide to the interpretation

'It speaks about the role of these Principles as a guide to interpret the Constitution and as well as

7
of the other laws of Bangladesh'. 'Thus its role has been widened beyond the Constitution by
empowering it to act as a guide to interpret all laws of any type in Bangladesh'.
The meaning and impact of acting as a guide to the interpretation' mean to interpret the
Constitution and other laws in conformity with these Principles, But obviously in the
name of interpretation a completely new meaning can not be awarded to any clear
provision of the Constitution or of any other law'. This task of interpretation must be
done with utmost good care so that ultimately it does not amount to enforcing these
Principles in the name of interpretation. Similarly, if the principles are used by the courts
merely to interpret as mandated by the Constitution that can not be restricted in the name
of judicial enforcement. Thus every effort made by the judiciary should not be termed as
enforcement of that very thing.
'In this connection 'judicial enforcement' and 'judicial interpretation' must be distinguished with
proper care. The earlier one is negated by article 8(2) and the latter one has been permitted by the
same. This issue can be made clear by taking the case of Kudrat-E-Elahi V. Bangladesh12 as an
example. In this case, the Appellate Division in fact did not enforce articles 9 and 11 (two
fundamental principles of state policy), rather interpreted articles 59 and 60 in conformity with
the above two articles and this is a classic illustration where the highest court used the
fundamental principles of state policy as a guide to the interpretation of the Constitution as
mandated by article 8(2) of the Constitution. Again the judgment pronounced by the High Court
Division in the case of Winifred Rubie V. Bangladesh"13 may be a classic illustration on the point
that every effort made by the court does not amount to judicial enforcement. In this case,14 the
term "public purpose" used in the Fundamental Principles of State Policy has been defined in
narrow sense and it was held that the requisition of a property for a private school does not serve
the "public purpose" and was void'.

12
44 DLR (AD)319
13
1981 BLD 30
14
Ibid.

8
Nature and judicial enforceability of the Fundamental Principles of State Policy

Article 8(2) of the Constitution of Bangladesh makes clear the nature of the Fundamental
Principles of State Policy in the way that however important these principles are these will not be
judicially enforceable which says:
"The principles set out in this Part shall be fundamental to the governance of Bangladesh,
shall be applied by the State in the making of laws, shall be a guide to the interpretation
of the Constitution and of the other laws of Bangladesh, and shall form the basis of the
work of the State and of its citizens, but shall not be judicially enforceable."

Thus, article 8(2) fixed four impacts of these Principles and lastly bars clearly the judicial
enforcement of these Principles of State Policy. This issue is in the light of different cases
decided by the High Court Division and the Appellate Division of the Supreme Court of
Bangladesh.

Kudrat E-Elahi V. Bangladesh, 44 DLR (AD) 319

Kudrat E-Elahi V. Bangladesh15 is an expert on this issue where the nature and the
question of judicial enforceability of these principles have been discussed thoroughly
both in the High Court Division and in the Appellate Division. For the convenience of
analysis and to get a clear idea about the judicial position regarding this issue the case
will be examined here in a detailed manner. In this case,16 the petitioners before the High
Court Division challenged the constitutional validity of the Bangladesh Local
Government (Upazila Parishad and Upazila Administration Reorganization) (Repeal)

15
44 DLR (AD) 319
16
Ibid

9
 Ordinance, 1991, on the ground, inter alia, that this Ordinance is inconsistent with articles
9, 11,59 and 60 of the Constitution and as such it is void in terms of Article 7(2) of the
Constitution. It appears that the petitioners in this case17 tried to enforce Articles 9 and
11, two fundamental principles of state policy, judicially enforceable along with Articles
59 and 60, but they could not succeed before the Court. Before the High Court Division,
Respondents-State defended the vires of the impugned Ordinance saying that
Fundamental Principles of State Policy are not "judicially enforceable", that these
Principles are not laws but are simply guidelines for the State including Parliament and
that even if any law is inconsistent with the Fundamental Principles that cannot be
18
challenged in court. The High Court Division in this case unanimously held that the
Upazila Parishad was not Local Government as the Upazila was not an administrative
unit, but the judges differed as to the inconsistency of the said ordinance with the
Constitution. Here two contrary opinions are found:

1. Fundamental Principles of State Policy are not judicially enforceable: It was held
by one of the judges in the High Court Division that there was not any inconsistency and,
even if any, the Repeal Ordinance could not be declared void in view of Article 8(2) of
the Constitution, which says that the Fundamental Principles of State Policy are not
enforceable by the Court.

2. Judicial enforceability of Fundamental Principles of State Policy: A new

interpretation: The other judge held that though Fundamental Principles of State Policy
are not judicially enforceable but a law which is directly contrary to any Fundamental
Principle or which negates such a principle then the law may be declared void in spite of
the provision in Article 8(2). Thus this opinion is a new interpretation that is in favour of
judicial enforceability of the principles, and this view apparently seems to be in conflict
with the provision of Article 8(2).

17
Ibid.
18
Ibid. at p.324 para 6.

10
Aftabuddin V. Bangladesh and others, 48 D LR 1

19
In Aftabuddin V. Bangladesh and others, the High Court Division has discussed the following
two points regarding Fundamental Principles of State policy:

1 . Fundamental Principles of State policy are not judicially enforceable: Naimuddin Ahmed J.
observed that—

"It is true that the Preamble to the Constitution is not enforceable.Nor is Article 22, which
is enshrined in Part II of the Constitution as Principles of State Policy, in view of Article
8 of the Constitution."20
Thus, it shows that Naimuddin Ahmed J. deviated from his earlier opinion regarding
enforceability of the Fundamental Principles of State Policy.

2 . Interpretive value o f the Fundamental Principles of State policy: Naimuddin Ahmed J. in the
High Court Division observed that—

"But there is no doubt that the Fundamental Principles of State policy act as guide to the
interpretation of the Constitution and other laws of Bangladesh in view of clause (2) of
Article 8 of the Constitution ... Article 22 of the Constitution enjoins the State to ensure
the separation of the judiciary from the executive organs of the State. Article 116 has,
therefore, to be interpreted in the light of the above provisions. There is no dispute that
the pledge contained in the third paragraph of the preamble presupposes an
independent]judiciary and unless independence of the judiciary is ensured the third
paragraph of the Preamble cannot be secured. Similarly, although the directive to ensure

19
48 DLR 1
20
Ibid .,p.11 para 45

11
 separation of the judiciary from the executive by the State cannot be implemented and
enforced through Court, Article 116 has to be interpreted in the light of this directive. In
this correction. Article 116A is relevant. It runs as follows:

"Subject to the provisions of the Constitution all persons employed in the judicial service
and all magistrates shall be independent in the exercise of their judicial functions."

Article 116 A is, therefore, a step to realize the principle enshrined in Article 22." 21

Secretary, Ministry of Finance, Government of Bangladesh V. Mr. Md. Masdar Hossain &
others, 20 BLD (AD) (2000) 104

In Masdar Hossain22 case though the Court does not seem to enforce the Principle directly but the
Court criticized the State for non-implementation of Article 22 of the Constitution of
Bangladesh, one of the Fundamental Principles of State Policy, focusing the failure of the state to
separate the judiciary from the executive. The Court observed:
"Article 22 of the Constitution provides that the State shall ensure the separation of
judiciary from the executive organs of the State. Though more than 29 years have elapsed
since the making of the constitution and its coming into force no effective steps have
been taken to separate the judiciary from the executive organs of the State."23

From the part of the judgment by His Lordship Mr. Justice Mustafa Kamal it is clear that the
ratio of the judgment is based on observation of implication and significance of some terms and
provisions specifically mentioned in the constitution, e.g. the President' s rule making power

21
48 DLR pp. 11-12 paragraphs 45,46.
22
20 BLD (AD) (2000)p. 142.
23
Ibid., Per Latifue Rahman, J agreeing with Mustafa Kamal, C.J., para 75.

12
under Article 115 and 133 of the Constitution and whole scheme of the judiciary within the
spirit of the constitution of Bangladesh.24

Conclusion
In part II certain directions to the State terming them as Fundamental Principles of State Policy.
The Constitution itself terms these as Principles, not laws. This part in fact contains certain basic
duties of the State and certain basic necessities of the type of economic human rights of the
people are dependent on the performance of the above duties properly by the State. With the
development of the concept of 'welfare state' in fact, this trend has been developed on political
grounds to impose more duties on the state without assessing the fact whether the State has the
actual ability to perform it or not based on its economic strength. The prime characteristic of
these principles is that they are not judicially enforceable and act as guidelines to the state.

……….o………

24
MD.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective, 13th
ed,p.91-92

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