Directive Principles of State Policy

The enforceability of the Directive Principles of State Policy by the courts.

The laws governing India have many dimensions and interpretations. Its unique composure makes it stand out when compared to the rest of the world’s governing laws. Our country might have innumerable laws but the survival of these laws can only be sustained if they align with the constitution of India. Hence, from this, we can decipher that the constitution of India is the very law of the land, and the flexible interpretation of the articles according to the requirements of the country’s needs makes it the supreme law.

The constitution of India has XXII parts (12 parts) with over 370 articles. This particular paper on the topic “The enforceability of the Directive Principles of State Policy by the courts” involves the principles that have been laid down by the constituent drafters in Part-IV of the Indian Constitution i.e. Directive Principles of State Policy (hereafter referred to as DPSP).

Part IV of the Indian constitution that deals with the DPSP has around 20 articles from Article 36–Article 50, along with the articles that have been incorporated through amendments.

Now, Article 37 of the concerned part gives us the understanding of the DPSP as the provisions laid down under it are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making the laws.

In simpler terms, the primary function of the DPSP is to provide guidelines and a structure for the formation of government policy. These principles are to be taken into consideration by the legislative body to form the laws for the land. But unlike the fundamental rights given under Part III of the constitution, the DPSPs are not justiciable by the courts, which has been stated clearly under Article 37 itself.

[Justiciable: 1. liable to trial in a court of justice (e.g. a justiciable offense); 2. capable of being decided by legal principles or by a court of justice.][1]

In the case of Charu Khurana v. Union of India[2], the Directive Principles were regarded as the soul of the Constitution as India is a welfare state. They guide the interpretation of the Fundamental rights of citizens as well as statutory rights.

In K.T. Plantation Pvt. Ltd. V. State of Karnataka[3], it was stated that “through these principles, the state is directed to secure the ownership and control of the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.”

Interpretation of the articles contained in Part IV: Directive Principles of State Policy [Article.36 – Article. 51]: –

Article 36: – Definition– This article tells us that the context of the provisions will remain the same unless it requires otherwise.

Article 37: – Application of the principles contained in this part – This article mentions the non-enforceability of the principles by any courts present in India along with the importance of the DPSP in the governance of the country.

Article 38: – State to secure a social order for the promotion of the welfare of the people – This article states the expectations from the state for the promotion of the welfare of the people with effective strategies and information along with the minimization of inequalities present in the society.

Article 39: – Certain principles of policy to be followed by the state – The clauses of this article shed light on the policies that the state has to follow to secure equality among the citizens; providing adequate means of livelihood; equal distribution of material resources for common good; equal pay for equal work for both men and women section of the society etc.

Article 39 A: – Equal Justice and Free Legal Aid – This article lays the security in the operation of the legal systems that imparts and promotes justice based on equal opportunity. It also mentions that the state is under obligation to provide free legal aid to ensure that justice is not denied to any citizen.

Article 40: – Organisation of the village Panchayats

Article 41: – Right to work, to education, and public assistance in certain cases– Within certain limits, the state is expected to make effective provisions for securing the right to work, to education, and public assistance in cases of uncertain conditions like unemployment, etc.

Article 42: – Provisions for just and humane conditions of work and maternity relief

Article 43: – Living wage, etc, for workers– The state under this article is expected to ensure a decent standard of life to all strata of workers and give them a living wage along with promoting the cottage industries on an individual or cooperative basis in rural areas.

Article 43 A & Article 43 B: – Participation of workers in the management of industries & Promotion of co-operative societies

Article 44: – Uniform Civil Code for the citizens- The state is expected to endeavor the Uniform Civil Code under this article. “It is intended to replace the system of fragmented personal laws, which currently govern interpersonal relationships and related matters within different religious communities.”[4]

Article 45: – Provisions for early childhood care and education to children below the age of six years

Article 46: – Promotion of educational and economic interests of Schedules Castes, Scheduled Tribes and other weaker sections

Article 47: – Duty of the state to raise the level of nutrition and the standard of living and to improve public health

Article 48: – Organisation of agriculture and animal husbandry- Under this article the state is expected to endeavor agriculture and animal husbandry based on modern and scientific lines.

Article 48 A: – Protection and improvement of environment and safeguarding of forests and wildlife

Article 49: – Protection of monuments and places and objects of national interest

Article 50: – Separation of judiciary from executive- This article sheds light on the steps and actions that the state is expected to take to separate the judiciary from the executive organs of the country.

Article 51: – Promotion of international peace and security- the state under this article of DPSP needs to promote international peace and security; maintain just and honorable relations between nations; encourage international dispute settlement etc.

The Fundamental Rights & DPSP are taken as distinct entities under the Constitution where one is enforceable in the Court of Law and the other one isn’t. But Justice Bhagwati observed, “It is not possible to fit Fundamental Rights and Directive Principles in two distinct and strictly defined categories, but it may be stated broadly that Fundamental Rights represent civil and political rights while Directive Principles embody social and economic rights. Both are part of the board spectrum of human rights”[5]

Even if they are accepted as the parts of a broad spectrum, the fundamental question as to the relationship between Fundamental Rights and Directive Principles of the State Policy is; which of these parts would have primacy in the case of conflict between them? The question has always been the point of controversy between Parliament and the Supreme Court resulting in some significant amendments and judicial decisions.

The two road mandates issued by the Constitution of India to all the state bodies are:

The Fundamental Rights cannot be taken away or abridged.
The Directive Principles of the State Policy are to be applied surely.

Fundamental Rights are mostly of individual characters and are primarily meant to protect individuals against arbitrary state action. The intention is to foster the idea of political democracy and they are meant to prevent the establishment of an authoritarian rule. On the other hand, the Constitution secures the economic and social freedom of people with Directive Principles of State Policy.[6]

The relationship between Directive Principles of state policy and Fundamental Rights has been the subject matter of debate since the commencement of the Constitution. After the commencement, the Indian Supreme Court had to pronounce its view on the relationship between the Fundamental Rights and Directive Principles.

In the beginning, the relation between Fundamental Rights and Directive Principles was misinterpreted by the Supreme Court of India as they interpreted the law literally and not in its spirit.

Though DPSPs are fundamental in the governance of the country and states are obligated to apply these principles while adopting legislation, because of the preference for Fundamental Rights over Directive Principles of State Policy, the latter seemed to be detached from the Indian Constitution. It was widely believed that the Directive Principles were to be complimentary to the Fundamental Rights to be accepted by the organs of the state.

As mentioned above and also as stated under Article 37, the Directive Principles were made non-justiciable by the court of law, unlike the Fundamental Rights which were made enforceable.

This difference between Fundamental Rights and Directive Principles resulted in various questions and eventually, the tussle between the two concepts was apparent:

Are Directive Principles inferior to Fundamental Rights?
Are Directives fundamental parts of the Indian Constitution?
Are Directive Principles of the equal importance of Fundamental Rights?

There have been times in history when they have stood in conflict with each other by the different organs of the state.

Initially, the judiciary put speed-breakers in the way as it interpreted DPSPs to be non-enforceable after taking the law in the letter rather than in spirit. In the late seventies, the legislators, to have the political advantage, gave complete importance to the Directive Principles through the 42^nd amendment but the judiciary had to again put restrictions, to maintain harmony between Fundamental Rights and Directive Principles which are the bedrock of the Constitution.

Thus, the relationship between Fundamental Rights and Directive Principles changed from time to time in the light of judicial interpretation which can be categorized in the following ways:

Fundamental Rights will prevail when they are competing with the Directive Principles.
The nature and scope of Fundamental Rights can be determined by Directive Principles as reasonable restrictions.
Principles of Harmonious Construction.

Is the Fundamental right superior to the Directive Principles of State Policy?

Just after the commencement of the Constitution, the judiciary laid down an undue emphasis on the non-enforceability of Directive Principles paying no attention to the fact that they were positive obligations on the state. It gave rise to a belief that the Directive Principles were merely existing in the Constitution to satisfy the aspirations of Constitutional makers who had little to no legal force and had to be in conformity with and run subsidiary to the chapters on Fundamental Rights.

The first important case after the commencement of the Constitution of India on this issue was that of State of Madras v. Champakam Dorrairajan.[7]

The learned Advocate General, in the Hon’ble Supreme Court, appearing for the State contended that the provisions of Article 29(2) have to be read along with other Articles in the Constitution. He argued that Article 46 charges the state to promote with special care the educational and economic interests of weaker sections of the people particularly of the scheduled caste and scheduled tribes, and to protect them from social injustice and all forms of exploitation. He said although this article finds a place in part IV of the Constitution and though the provisions contained in that part are unenforceable by the court, the principles laid down therein are however fundamental in the governance of the country. Article 37 makes it obligatory on the part of the state to apply those principles in making laws.

So, based on this contention regarding Article 46, the state is entitled to maintain communal Government order fixing proportionate seats for different communities. And if there is a situation where the petitioners are unable to get admission into the educational institutions because of the verdict given, then there is no infringement of their Fundamental Rights.

The Supreme Court held that the Chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any legislative or executive act or order, except to the extent provided in the articles in Part III.

The Directive Principles of State Policy cannot override the provisions of Fundamental Rights but have to conform to it and run as a subsidiary to the chapter of Fundamental Rights.

The Hon’ble Supreme Court stated, “However, so long as there is no infringement of any Fundamental Rights to the extent conferred by the provisions in part III, there can be no objection to the state acting by the Directive Principles set out in part IV, but subject to the Legislative and Executive powers and limitations conferred on the state under different provisions of the Constitution.”[8]

The Law declared by the Supreme Court in Champakam’s case has caused irreparable damage to the Constitution. It gave a setback to the implementation of Directive Principles. The judicial decisions made it clear that:

Directive Principles are non-justiciable and these cannot override fundamental rights.
Fundamental Rights envisaged in Part III of the Constitution is sacrosanct and cannot be abridged by the legislature or executive.

Thus, this interpretation came in the way of various socio-economic rights people would have been able to achieve, had the DPSPs were given the same status as the Fundamental Rights.

Nature and Scope of the Fundamental Rights determined by the Directive Principles as reasonable restrictions:

In its second phase of interpretation, the Supreme Court relied on the Directive Principles for validating a number of legislations that were found not violative of Fundamental Rights.

The Directive Principles were approved on the criteria of:

Public Purpose

Reasonableness of Restrictions on Fundamental Rights

In Bombay V. Balsara [9] , the Government of Bombay banned the consumption of liquor except for medicinal preparation and the Court was of the view that it amounted to a reasonable restriction of Fundamental Rights under Article 19(6)

In State of Bihar V. Kameshwar Singh[10] , the Supreme Court relying upon the Directive Principles incorporated in Article 39(b) held that certain zamindari abolition laws had been passed for a public purpose within the meaning of Article 31(2).

The Supreme Court took a turn and took a complicated view in Mohammed Hanif Qureshi v. State of Bihar[11] . In this case, the validity of Uttar Pradesh, Madhya Pradesh, and Bihar legislation which banned the slaughter of certain animals including cows was challenged. It was contended that the ban prevented the petitioners from carrying on their butcher’s trade and, therefore, infringed their Fundamental Rights, inter alia, guaranteed under Article 19(1)(g). The Supreme Court, in this case, could not agree with the contention of the State. Justice S.R. Das thought that no law should be made which takes away the Fundamental Rights. The decision is on the lines of the judgment given in Champakam’s case that the Directive Principles cannot override the categorical restrictions imposed by Article 13(2) on the state and took the jurisprudence in the same direction.

The conclusion is that if Directive Principles cannot override this categorical restriction, they must then remain subservient to Fundamental Rights as envisaged by the Supreme Court in the State of Madras v. Champakam Dorrairajan’s[12] case.

The court, however, for the first time, in this case, introduced the doctrine of harmonious construction as a new technique of Interpretation in this field. But this new technique, according to S.R. Das, CJ has to be applied in such a way as not to take away or abridge Fundamental Rights.

In Golaknath v. State of Punjab[13] , the court appeared to take the view that the Fundamental Rights have a fixed content and the laws enacted for giving effect to the Directive Principles could conceivably take away or abridge the Fundamental Rights.

K. Subba Rao, Chief Justice, speaking for him and on behalf of 4 other judges, expressed the view that “Part III and IV, constitute an integrated scheme forming a self-contained code. The scheme is made so elastic that all the Directive Principles of the State Policy can reasonably be enforced without taking away or abridging the Fundamental Rights.”

Enforceability of the Directive Principles (Principle of Harmonious Construction): In this phase, the Fundamental Rights and DPSPs are not exclusionary. Rather, they are supplementary, Complimentary, and not isolated from each other. The Hon’ble Supreme Court proved this with a unanimous judgment in the Olga Tellis Case[14] observing that directive principles are fundamental in governing a country, therefore, they should be regarded as equally fundamental to the understanding and interpretation of the meaning of fundamental rights.

In Minerva v. Union of India^[15], the Supreme Court by 4:1 majority struck down Article 31C as amended by the 42nd amendment, as unconstitutional on the ground that it destroys the basic feature of the Constitution. The court held that Article 31C was beyond the amending power of the parliament and was void since it destroys the basic features of the Constitution by a total exclusion of challenge to any law on the ground that it was inconsistent with or took away abridged any of the rights conferred by Article 14 or 19 of the Constitution. The majority had the view that the Constitution is about the balance between Part III and IV. Providing absolute primacy to one over the other is to disturb the harmony of the Constitution which is one of the essential features of the basic structure.

In State of Tamil Nadu v. L. Abu Kavur Bai[16] , a five judges bench of the court has held that although the Directive Principles are not enforceable yet the court should make a real attempt at harmonizing and reconciling the Directive Principles and the Fundamental Rights and any collision between the two should be avoided as far as possible.

In Unnikrishnan v. State of A.P.[17] , Justice B.P. Jeevan Reddy stated the law:

“It is thus well established by the decisions of this court that the provisions of Part III and IV are supplementary are but a means to achieve the goal indicated in Part IV. It is also held that the Fundamental Rights must be construed in the light of Directive Principles.”[18]

The non-enforceability of the DPSP provisions by any courts might create a dilemma in the minds of many. The glorious provisions contained in these Directives are useful and define us as a welfare state. Even though their enforceability not apparent they are justifiable through other laws. Therefore, we can say that the position of the Directive Principles of state policy in the constitution is balanced and desirable despite its non-enforceability by the courts.