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Directive Principles of State Policy | Overview
- Introduction
- Directive Principles of State Policy | Articles 36 – 51
- Distinction between DPSPs and Fundamental Rights
- Judicial Review and Directive Principles of State Policy
Directive Principles of State Policy can be administered as an instrument by which states exercise justifiable and constitutional machinery, effectively. The vital adaptations and modifications according to the transitional form of society’s necessities need to be taken care of, while formulation laws by the states so that it works in harmony with the Fundamental Rights of citizens.
Introduction
Directive Principles of State Policy are constitutional directions to the government by the citizens and are overseen by them to secure their overall interests, needs and rights. With respect to this, Gledhill found them to be having prominence in the decisions made by the courts just as “Magna Carta has affected the decisions of English judges and the Preamble of the American Declaration of Independence has affected the decision of American judges.”[1]
Therefore, notwithstanding the non-justiciability of Directive Principles of State Policy, the significance of DPSP as constitutional principles should not be underestimated. The DPSPs are not a source of rights but they lay down the goal and purposes. The framers of the Irish Constitution were the pioneers in constitutionalising the Directive Principles of State Policy and the framers of the Constitution of India followed the guidelines laid down by the Irish and further evolved the jurisprudence of Directive Principles of State Policy.
The founding draftsmen of the Irish Constitution stated the following to rationalise the embossing of the non-justifiable DPSP in the Constitution:
“They [DPSP] will be there as a constant headline, something by which the people as a whole can judge of their progress in a certain direction; something by which the representatives of the people can be judged as well as the people judge themselves as a whole. We will judge of our progress in a certain direction by asking ourselves how far we have advanced in this direction. They are intended to be directive to the Legislature. They are not to be determined by the courts for this reason-that it is the Legislature that must determine how far it can go from time to time, in the set of circumstances, in trying to secure these ideals and aims and objectives.”
The founders of Indian Constitution defended the DPSPs by stating the following:
“[…] we are going to enter into a new life of contradictions. In politics we will have equality, in social and economic life we will have inequality. In politics, we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one vote. How long shall we continue to live with this life of contradictions?”
The DPSPs may be found in Chapter IV of the Indian Constitution and in particular, are embodied in Article 36 to 51. The directive principles enumerated in these Articles comprises of a structure of values that impact social action and further, ascertain the quality of leadership along with its efficiency in the Indian society.
Hereunder are the three categories in which the DPSPs can be grouped into:
- Lucid and assertive borrowings from the “liberal humanitarian traditions” from the West: This pertains to the broad and undefined meaning of secularism.
- Values emanating from the peculiar and special Indian challenges.
- Values demonstrating an effort to merge the traditional and modern means of livelihood and thought.
The idea behind the above categorisation is to show that besides certain indigenous challenges that the Indian community faces, the founders of the Indian Constitution attempted to establish certain humanitarian principles which had been evolved after centuries of modifications in the Western countries.[2]
During this long duration, the principles had been put to test and tried and appeared as intrinsic human values regardless of race, language and religion. Further, the Constitution of India extends responsibility of DPSPs to all state bodies, however, it particularly precludes from its purview, judicial authority.
In this scenario, one must contemplate as to how the judiciary is able to fulfil its constitutional duty if it cannot adjudicate upon matters related to DPSPs. To answer this Chinnappa stated that,
“the non-justiciability of DPSPs does not preclude courts to consider them in their interpretation of the Constitution and laws but limits their power to issue directions to the parliament and the legislature of the states to make laws.”[3]
Directive Principles of State Policy | Articles 36 – 51
The most significant of all the directives upon which a great deal of stress has been put is Article 39 which entrusts upon the State to ensure proper distribution of the material resources of the community to serve the common good. So far, as the distribution of agricultural land is concerned, the efforts of execution of Article 39 are evident.
The rise of the public sector undertakings and regulation of the private industries and businesses by the government can also be said to be an implementation of Article 39 by keeping a check on the upheaval in the monopolistic power of private industries. Almost every Indian state has abolished the jagirdari and zamindari laws and has made an effort to distribute the land.
This idea was even implemented by the Planning Commission which abolished the intermediaries between the state and the land tiller. Many initiatives related to the security of fair rents and tenure have also been worked up. There exists a maximum limit of landholding for actual cultivators. While there exists a good deal of legislative framework related to this field, yet it is uncertain if the lands acquired by the governments from the intermediaries have been effectively distributed to the landless labourers and cultivators who are intended to be the principal beneficiaries.
The Apex court in the case of Randhir Singh v. State of UP[4] invoked Article 39 (d) for adjudicating upon an issue that involved the issue of different pay-scales for drivers employed in different departments. The court held that,
“construing Articles 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle ‘Equal pay for Equal work’ is deducible from these articles and maybe properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do identical work under the same employer.”
In fact, in the year 2014, the Apex court applied Article 39 (e) and (f) to ensure that the right to a safe and healthy environment is a part of right to life.[5]
Article 40, which provides for the organization of village panchayats is being relied on to establish efficient, self-government at local levels. The ideal contemplated in Article 43 could be seen in the establishment of cottage industries which is an attempt to ensure speedy urbanisation in India leading to rapid technological change.
The kind of society envisaged is one with heavy industries located in certain urban or semi-urban areas and small industries in rural areas. This would result in lessening the movement of the rural population from the rural pockets to urban centres by making available better economic facilities to reside in rural areas.
As per Article 46, which provides for promotion of welfare of weaker section of the society, particularly SCs and STs, complying to which, many Acts have been enacted with the intent to implement this directive. For instance, the Untouchability (Offences) Act, 1955 has been enforced to end the practice of untouchability and made it a criminal offence.
Moving forward, the provisions laid down in Article 47 regarding public health and ensuring minimum standards of livelihood, specifically amongst the rural population, the Central government launched a community development initiative. Further, the directive pertaining to put a bar on intoxicating drinks and drugs which are injurious to health was brought to effect through an operation called the ‘Prohibition Enquiry Committee of Planning Commission’.
Talking about Article 50 which provides for separation of executive and judiciary, the principles can be seen by the implementation of a collegium system for the selection of judges for the higher judiciary.
Distinction between DPSPs and Fundamental Rights
The chief distinction between fundamental rights and Directive Principles of State Policy emerge from the Constitutional structure for human rights. Fundamental rights are nothing but “civil” and “political rights” which have been provided with better security in the Constitution of India.
The Constitution further states that any law deviating from the fundamental rights must be rendered void. On the other hand, the DPSPs are subjected to a different treatment as the Constitution, although holds that “DPSPs are fundamental in the governance of the state” and “it is the duty of the state to apply them in making laws”, nevertheless, they remain unenforceable in the courts. This stipulation mentioned in the Constitution has sought many issues with respect to the relationship between fundamental rights and DPSPs.
A close examination has revealed a three-way relationship between fundamental rights and DPSPs as provided by the judiciary.
- the primacy of FRs over the DPSPs.
- both of them stand on equal footing and a harmonised outcome should be resorted to, in case of contradiction.
- DPSPs enjoy primacy over the FRs.(39B and 39C)
Villiers stated that,
“[f]undamental rights prevent the state from acting, while directive principles provide a framework within which the state is required to act. While DPSPs are general and programmatic, their enforceability depends on political and moral pressure unlike Fundamental Rights which are specific and enforced by courts by means of sanctions.”[6]
These distinctions are a reason why DPSPs are treated differently than FRs when it comes asserting judicial sanctions.
The first instance where the Apex court had to deal with a DPSP related issue emerged in State of Madras v. Srimathi Champakan Dorairajan[7] ,wherein it was ruled that the order pronounced by the State of Madras to reserve proportionate seats for different communities in accordance to their strength in engineering and medical colleges was violative of the FRs.
Although, the initiative by the State was in compliance to Article 46 which provides for “Duty of the State to raise the level of nutrition and the standard of living and to improve public health”, the court observed that the implementation of Article 46 must not override the provisions laid down in Article 29 which is an FR. The court found that the proposed arrangement of the State would leave out many well-qualified candidates from admission merely on the basis of caste, religion, race or language which goes against the ethos of Article 29.
Nevertheless, the DPSPs are interpretative tools for the court to use while rendering a judgment. Yet the courts in a number of instances have not paid heed to this fact. For example, in the case of Muir Mills v. Suti Mill Mazdoor Union[8] and Jaswant Kaur v. State of Bombay,[9] the court denied the interpretation of FRs in consonance with DPSPs. However, the significance of DPSP as an interpretative tool was observed by the court in Re Kerala Education Bill case.[10]
The State in this case in compliance with Article 45 of the Directive Principles of State Policy, attempted to provide an education system by which the minorities could administer the educational institutions. But this action of the State was questioned for its incompliance to Article 14, which provides for the right to equality. Nonetheless, the court observed that the bill is unconstitutional on the grounds that it is in violation of FRs and further ruled that attempt must be made to interpret DPSPs in consonance with FRs though the latter might override the former in case of contradiction.
This approach of the primacy of FRs over DPSPs has been criticised by Justice Chandrachud in a number of cases, he has adjudicated that[11]:
“[f]undamental rights which are conferred and guaranteed by Part III of the constitution undoubtedly constitute the arc of the constitution and without them a man’s reach will not exceed his grasp. But, it cannot be overstressed that the Directive Principles of State Policy are fundamental in the governance of the country. What is fundamental in the governance of the country cannot surely be less significant than what is fundamental in the life of an individual…Part III and Part IV are like two wheels of a chariot, one no less important than the other.
In other words, Indian constitution is founded on the bedrock of the balance between Parts III and IV. This harmony and balance between Fundamental Rights and the Directive Principles is an essential feature of the Basic Structure of the Constitution.”
Also, if we say that Directive Principles of State Policy are not legally enforceable then it basically means that a part of the Constitution cannot be brought to a legal force which is opposed to the ideals of the whole document of Constitution.
In several important cases namely, Sajjan Singh v. State of Rajasthan,[12] Kesavananda Bharati v. State of Kerala,[13] Minerva Mills Ltd v. Union of India,[14] Waman Rao and Ors v. Union of India[15] and Chandra Bhavan Boarding v. State of Mysore[16], there has been a harmonious relationship between FRs and DPSPs.
The judgement under Chandra Bhavan Boarding v. State of Mysore was determined as:
“Freedom to trade does not mean freedom to exploit. The provisions of the Constitution are not erected as barriers to progress. They provide a plan for orderly progress towards the social order contemplated by the preamble to the Constitution…while rights conferred under Part 3 are fundamental, the directives given under Part 4 are fundamental in the governance of the country. We see no conflict on the whole between the provisions contained in Part 3 and Part 4. They are complementary and supplementary to each other.”
A similar approach could be seen in the judgement of Unni Krishna v. State of Andhra Pradesh[17] by Chinnappa
“to give absolute primacy to one over the other is to disturb the harmony of the constitution… Fundamental Rights are not an end in themselves but are the means to an end. The end is specified in Part IV [DPSP].” With the ruling in this case the rule of harmonious interpretation and complementary treatment of Directive Principles of State Policy was ultimately adopted.
Judicial Review and Directive Principles of State Policy
The Constitution of India entitles the Apex court and High courts with the authority of judicial review. The judiciary is entrusted with the dual tasks of upholding the constitutional democracy as contemplated by the Constitution and secure the liberty of the citizens.
The “basic structure doctrine” is an essential part of the constitution by which the judiciary can exercise powers of judicial review to conserve the integrity and consistency of “the basic features of the Constitution”, as was envisaged by the draftsmen of the Constitution. Hence, the judiciary through the means of judicial review has made Directive Principles of State Policy an innate part of the basic structure doctrine although they are explicitly mentioned as non-justiciable in nature.
With respect to this, Lord Browne Wilkinson ruled that[18]:
“[t]he fundamental principle [of judicial review] is that the courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. In all cases…this intervention is based on the proposition that such powers have been conferred on the decision maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and…reasonably.
If the decision maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or is…unreasonable, he is acting ultra vires his powers and therefore unlawfully.”
In the cases of, Ratlam v. Shri Vardhichand[19] and Central Inland Water v. Brojo Nath[20] the Apex court noted that it is the responsibility of the court to make appropriate application of DPSP and concurrently make the other bodies of the like legislature and executive apply them and on occasion of contradictory action, prohibit such action.
The court’s view was that,
“[w]here Directive Principles have found statutory expression in Do’s and Dont’s the court will not sit idle by and allow municipal government to become a statutory mockery.” Therefore, judicial review as an instrument provides the court to assume an active role to bring into legal force Directive Principles of State Policy by itself and would need the others to do the same.
[1] Alan Gledhill, The Republic of India: The Development of its Law and Constitution (2nd ed, Stevens & Sons 1964)
[2] G. S Sharma, ‘Concept Of Leadership Implicit In The Directive Principles Of State Policy In The Indian Constitution’ (1965) 7 (3) Journal of Indian Law Institute <https://www.jstor.org/stable/pdf/43949819.pdf?refreqid=excelsior%3A035f45e345a0c19c2aa69713328bfe68> accessed 8 May 2020.
[3] Reddy Chinnappa, The Court and the Constitution of India: Summit and Shallows (OUP 2010) 73.
[4] 1982 SCR (3) 298, 306.
[5] Occupation Health and Safety Association v. Union of India, Writ Petition (Civil) No. 79 of 2005.
[6] Bertus De Villiers, ‘Directive Principles of State Policy and Fundamental Rights: The Indian Experience’ (1992) 8 S. Afr. J. on Hum. Rts. < https://www.tandfonline.com/doi/pdf/10.1080/02587203.1992.11827851> accessed 8 May 2020.
[7] 1951 SCR 525.
[8] (1950) 2 L.L.J. 1247.
[9] AIR 1952 Bom 461.
[10] 1959 1 SCR 995.
[11] Chinnappa, The Court and the Constitution of India: Summit and Shallows, n (2).
[12] 1965 SCR (1) 933.
[13] (1973) 4 SCC 225.
[14] AIR 1980 SC 1789.
[15] (1981) 2 SCC 362.
[16] (1969) ILLJ 97 Kant.
[17] 1993 SCC (1) 645.
[18] Chirstopher Forsyth (ed), Judicial Review and the Constitution (Hart Publishing 2000), 30.
[19] 1981 SCR (1)97.
[20] 1986 SCR (2) 278.
