DIRECTIVE PRINCIPLES: AN OVERLOOK ON ITS DEVELOPMENT
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed[1]. Within states a constitution defines the principles upon which the state is based, the procedure in which laws are made, limitation on state power etc. T.H. Green has rightly said,” It’s the business of the state to maintain the conditions without which a free exercise of human is impossible.” Constitution helps the state to maintain aforesaid condition pointed by T.H. Green. When these principles are written down to a single document or set of legal documents those documents may be said to embody a written constitution. Earliest code of justice is considered to be issued by Sumerian King Urukagina of lagash ca 2300 B.C.
Directive Principles and salient features of Constitution of India
- Preamble: Unlike the constitutions of various other countries, the Indian constitution has an elaborate preamble. Indian preamble read as, “ We the people….and give to ourselves…[2]” clearly states that the sovereignty lies in the people the people, that the constitution emanates from them, ultimate source for the constitution is the validity and sanction behind the will of the people, that the constitution is work of Indian people not affected by any external power. It clearly clarifies that people of India thus constitute the sovereign political body who hold the ultimate power and who conduct the government of country through their elected representatives.
The goals and objectives of the Indian polity as stated in the preamble are sought to be further clarified, strengthened and concretised through the Directive Principles Of State Policy therefore it is essential that the preamble be read along with the Directive Principles which lay down certain goals for the government to achieve so as to maximize social welfare of the people. Though originally it wasn’t regarded as a part of statute and therefore at one time it was thought that preamble doesn’t form part of the constitution[3] but that view is no longer in existent after the Keshavananda[4].
- Socialist State: The word ‘Socialist’ was added to the Preamble by the 42nd amendment of Constitution in 1976 initially not being its part. It hasn’t been defined in the Indian Constitution but has been by the various judgments of Supreme Court. In Samantha v. State Of Andhra Pradesh[5] Supreme Court has stated while defining Socialism,” Establishment of the egalitarian social order through rule of law is the basic structure of the constitution”. The Court has laid emphasis on social justice so as to attain substantial degree of social, economic and political equality. Social justice and equality are complementary to each other.[6]
- Welfare State: Our constitution embodies a distinct philosophy of government and explicitly declares that India will be organized as a social welfare state i.e.; a state which renders social services to the people and promotes their general welfare. This concept of welfare state is further strengthened by Directive Principles Of State Policy which sets out the economic, social and political goals of the Indian Constitutional system. It allows the Indian Constitution set up a machinery to achieve the goal of economic democracy along with political democracy for the latter would be meaning less in a poor country like India. In the Paschim Banga[7] Supreme Court observed :
“ The constitution envisages the establishment of a welfare state at the fedral level as well as the state level. In a welfare state the primary duty of the government is to secure the welfare of the people.”
- Secular State: The word ‘Secular’ wasn’t originally part of the preamble but was added thereto by 42nd amendment in 1976 . The Supreme Court has declared Secularism as the basic feature of the Indian Constitution[8]. The Court has further declared that Secularism is a part of fundamental law and an unalienable segment of the basic structure of country’s political system[9]. It has explained that secularism isn’t to be confused with communal or religious concepts of an individual or group of persons.
Tracing the roots of the Directive Principles in history
As a misconception among masses the roots of Directive Principles in India are considered to be during the framing of Constitution which is a wrong concept as they have been always present during the entire Indian freedom struggle in one form or other. There is a long history related to evolution of these principles.They have their roots in the history of last several centuries. In the 45th session of Congress held at Karachi on 29th March 1931, Congress declared that any constitution to be agreed on its behalf should provide or enable the Swaraj Government to provide for Fundamental rights and duties and economicand social programs. Subsequently it was finally adopted with some versions under the title ‘Fundamental Rights and Duties and Economic Program’ at 47th session of Indian National Congress held at Calcutta on 1st April, 1933. Karachi resolution was emphatic not only on the State’s negative obligations but also on its positive obligation to provide the people with economic and social condition in which their negative rights could have actual meaning ultimately paving the way for inclusion of Directive Principles in India’s future constitution. Here we can’t also completely neglect the influence of Irish Constitution over Directive Principles of Indian constitution. The long standing affinity of Congress with the Irish Nationalist Movement played a major role in this[10].
The weightiest support for the inclusion of Directive Principles in constitution came from R.A.A.S.[11]Their suggestions were proved to be thoroughly liberal in outlook. Of the four B.N. Rau was most influential. Unlike others he approached it with certain skepticism. His precedents during the actual drafting of Directive Principles supplied the members of Rights’ Sub- Committee with at least five of the original twelve provisions and preamble of principles[12]. The approach of the rest of the three was even more strict in this regard as they wanted to make Directive Principles justifiable.
Objectives of the Directive Principles
The objectives of the Directive Principles can be better understood from the speech of Dr. B.R. Ambedkar in the Constituent Assembly. He said :
“…In the draft constitution the fundamental rights are followed by what are called directive principles of state policy. It’s a novel feature in a constitution framed for parliamentary democracy Directive Principles are like instrument of instructions. The inclusion of such instructions in such a constitution becomes justifiable for another reason. This draft constitution is not a contrivance to install any particular party in power as has been in some countries. Who should be in power is left to be determined by the people but the group that captures power will have to respect the Directive Principles. They can’t ignore them. Their breach may not be answerable in a court of law but will certainly be answerable to the electorate at election time…..”[13]
Article 37 of the constitution states: “ The provision contained in this part 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 law”.[14]
Thus it is clear that the main object in enacting the directive principles appear to have been to set standards of achievements before the Legislature and Executive, the local and other authorities, by which their success or failure can be judged. It was also hoped that those failing to implement the directives might receive a rude awakening at the polls.
In the words of the Granville Austin,” Directive Principles set forth the humanitarian socialist percepts that were and are aims of Indian social revolution.” The most important aspect of Directive Principles is the change of direction of wind by introduction of them in the Constitution of India. They have changed the main concern of state from maintenance law and order to achievement of certain social, economic and political principles defined under Constitution Of India. Sri G. N. Joshi has correctly remarked, “ Directive Principles constitute a very comprehensive political, social and economic programme for a modern democratic State”.
The Trinity
The preamble, the fundamental rights and the Directive Principles are the trinity of the constitution[15]. As the relationships between Preamble and Directive Principles have already been discussed earlier they will not be discussed here again. The main discussion here will be the relationship between fundamental rights and Directive Principles.
The relationship between Directive Principles and Fundamental Rights has undergone through a vast change. The main question before judicial system has always been : What if a law enacted to enforce a directive principle violates a fundamental rights? This question has lead to the establishment of supremacyof Directive Principles.[16] But the situation hadn’t been same all the while.
Initially courts by adopting the literal interpretative approach to Art. 37, in a case of conflict between Fundamental Rights and Directive Principles held the view that Fundamental Rights would have supremacy over the later since if reverse would happen then the Fundamental rights would be reduced to a ‘mere rope of sand’.[17] Later the views of the Supreme Court underwent a change as in the case of Kerala Education Bill[18] in 1958 it emphasized on the harmonious interpretation of the two. Therefore without making the Directive Principles justifiable as such the courts began to implement the values underlying these principles to the possible. It held the view that they both are supplementary to each other and therefore there is no conflict between both of them.[19]
In the Golak Nath[20] Supreme Court emphasized that the Fundamental Rights and Directive Principles forms an ‘integrated scheme’ which is elastic enough to respond to the changing needs of the society.
In Kesavananda Bharti v. State of Kerala[21] Supreme Court observed that Fundamental Rights and Directive Principles formed conscience of the constitution and therefore both have to balanced and harmonized.
In Mumbai Kamgar Sabha v. Abdul bhai [22] Supreme Court observed, “ where the two judicial choices are available for construction in conformity with the social philosophy” of the Directive Principle has preference.
Recently in case of Ashoka Kumar Thakur v. Union of India[23] Supreme Court observed that no distinction can be made between Fundamental Rights and Directive Principles solely because later are non-justifiable and doesn’t make them to sub-ordinate importance.
The Directive Principles and Fundamental Rights are now regarded as exclusionary of each other. They are regarded both complementary and supplementary to each other. The Directive Principles have got to be read onto the Fundamental Rights. “Right to Education” is such an example. The Supreme Court has argued in Olga Tellis[24] that since Directive Principles are fundamental in governance of the country they must therefore be regarded as equally fundamental to understanding and interpretation of the meaning and content of Fundamental Rights.
C.J. Chandrachud in Minerava Mills[25] said that Fundamental Rights “aren’t an end in themselves but are an means to an end and end is specified in Directive Principles.”On the other hand the goals set out in Directive Principles are to be achieved without abrogating the Fundamental Rights.
Thus these all developments has lead to the judicial strategy to read Fundamental Rights along with a view to define scope and ambit of former. This can be directly felt in Art. 21[26],Art. 19[27]etc.
Justifiability of Directive Principles
These principles are made non- enforceable by any Court of law. Article 37 of the constitution states: “ The provision contained in this part shall not be enforceable by any court but the principles thereinlaid 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 law”.[28]
Contradictory to above discussions here I am going to discuss justifiability of Directive Principles alone. The main reason behind the the legal non-enforceability and non-justifiability of these principles is that they impose positive obligations on the state which themselves are restricted by some practical restrictions.
The Courts don’t enforce a Directive Principle as such it does not create any justifiable rights in favor of an individual[29] neither any writ will be issued to enforce the them[30]. In the Meenakshi Mills[31] Court observed ,” Ordinarily any restriction so imposed which has the effect of promoting or effectuating a directive principle can be presumed to be a reasonable restriction in public interest”.
The Directive Principles guide the exercise of legislative power but don’t control the same[32]. However the values underlying the Directive Principles, viz., welfare of the poor and weaker sections of society have crept in the interpretation of economic legislation by the judiciary and is a substantial gain which have must have declared by the discussion till now.
Conclusion
Here we come at the end of this discussion. No doubt Directive Principles contained in Part IV of the constitution set out the aims and objectives to be taken up by the states in the governance of the country. Truly speaking the idea of welfare state envisage by our Constitution can only be achieved to implement them with high sense of moral duty. Today we live in a era of a welfare state which has to promote the prosperity and well being of people. Readers may feel the fact that nowhere in the whole article I have discussed briefly the Article from 38 to 51. In actual I wanted to discuss the judicial aspects of the Directive Principles. Much have been said about these articles and have been discussed by in briefly by various scholars but this aspect which I have felt has been largely untouched.. Yet I have failed to discuss various other important aspects of these principles for which I express apolzies.
The Directive Principles have been skeptically received by some authorities. Dr. Wheare had counted that whether there is any gain on balance from introducing these paragraph of generalities into a Constitution.[33] No doubt it has been cleared with passage of time and judicial development of Directive Principles as they have been a guide for the Union Parliament and state legislatures. This can be said to be Kohinoor of the Indian Constitution as its very doubtful that if in any other constitution, the expression of positive or negative rights has provided so much impetus towards changing and rebuilding society for common good.
[1] The New Oxford American Dictionary, 2nd Edition, May 2005, Oxford University Press
[2] Constitution Of India, The Bare Act
[3] In re Berubari Union and Exchange of enclaves, AIR 1960 SC 845: (1960) 3 SCR 250;
[4] Keshavanada Bharti v. Union of India AIR 1973 SC 1461 at 1506 : (1973) 4 SCC 225
[5] AIR 1997 SC 3297;3330 (1997) 8 SCC 191
[6] Air India Statutory Corp v. United Labour Union AIR 1997 SC 645: (1997) 9 SCC 377
[7] Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996) 4 SCC 37:AIR 1996 SC 2426
[8] Keshavananda Bharti v. State Of Kerala AIR 1973 SC 1461
[9] State Of Karnataka v. Parveen Bhai Thogardia (2004) 4 SCC 684
[10] Nehru Report, op. cit., p 89
[11] Here I have used this term to refer to quad. Of B.N. Rau, A.K. Ayyar, B.R. Ambedkar, K. T. Shah respectively.These four played a very vital role in the inclusion of Directive Principles in Indian Constituion.
[12] Supplementary Report Of the Advisory Committee on Fundamental Rights, Reports, Second Series, PP 48-49
[13] Constituent Assembly Debates, VOL. III
[14] Constitution of India, The Bare Act
[15] Dalmia Cement (Bharat) Ltd. V. Union of India (1996) 10 SCC 104
[16] State Of Gujarat v. Mirzapue Moti Kureshi Kassab Jamat, (2005) 8 SCC 543
[17] State of Madras v. Champakam Dorairajan AIR 1951 SC 226: 1951 SCR 525;
[18] IN re Kerala Education Bill, AIR 1958 SC 956: 1959 SCR 995
[19] Chandra Bhawan Boarding and Lodging, Banglore v. State of Mysore, AIR 1970 SC 2042 AT 2050: (1969) 3 SCC 84; Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SCC 2178: (1993) 1 SCC 645
[20] Golak Nath v. State of Punjab, AIR 1967 SC 1643: (1967) 2 SCR 762
[21] AIR 1973 SC 1461AT 1641: (1973) 4 SCC 225
[22] AIR 1976 SC 1455: (1976) 3 SCC 832
[23] (2008) 6 SCC 1
[24] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC at 194: (1985) 3 SCC 545
[25] Minerva Mills v. Union of India AIR 1980 SC 1789: (1980) 2 SCC 591
[26] For example: Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
[27] For example: State of Bombay v. Balsara, AIR 1951 SC 318,329: 1951 SCR 682; Laxmi Khandsari v. State of Uttar Pradesh AIR 1981 SC 873: (1981) 2 SCC 600;
[28] Constitution of India, The Bare Act
[29] In re M. Thomas, AIR 1953 Mad 21;
[30] Ranjan Dwivedi v. Union of India, AIR 1983 SC 624: (1983) 3 SCC 307
[31] Workmen. Minakshi Mills Ltd. V. Meenakshi Mills Ltd., AIR 1994 SC 2696 at 2713: (1992) 3 SCC 336
[32] Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648
[33] K.C. Wheare, Modern Consitutions,p.69
Contributed By-Anirudh Bhaskar, Institute of Law, kurukshetra University
Edited By – Nikita Goel, Convener, Students Reporter Committee, INBA