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Directive Principles of State Policy (DPSP): Whether Justifiable or not

Directive Principles of State Policy (DPSP) or Articles 36-51 under Part-IV of the Indian constitution, are the norms or principles given to the federal bodies governing the state of India. These are meant which are intended to be remembered by the state while framing laws and policies. The Directive Principles comprise an extensive social, financial and political curriculum for a modern, progressive and welfare state.

The reasoning behind drafting these principles is that the state tries to promote the wellbeing of their people by providing them bare necessities like food, shelter and clothing. For better instance state is defined in the constitution of India as, the word state includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

These principles impose a moral obligation or duty on the state for their implementation because constitution refers them as a fundamental in the governance of the nation like India so as to achieve the economic and social democracy in the country. Unlike the Fundamental Rights which are incorporated under Part-III of the constitution, the DPSP are non-justiciable in nature and this article centers around to clarify the nature and essence of DPSP. It will also reflect the pertinent question whether making these principles justiciable is effective and its scope of this justiciability, while pursuing all relevant entropy.

Background Of DPSP:
The concept of DPSP was derived from the Irish Constitution. Our makers of constitution were really influenced by the Irish nationalist movement, which established an Independent Irish Republic by getting independence from British Rule in 1922. It also finds the common origin in the Nehru Report 1928 (All Parties Conference Committee Report, 1928. It was chaired by Motilal Nehru) and Sapru Report of 1945.

The Sapru Report got published to resolve the issues pertaining to Indian minorities that had infested the Indian political and constitutional discussion. It was prepared by the committee which was headed by Tej Bahadur Sapru, a well-renowned lawyer, convened the first meeting of the Non-Party Conference in 1941. This 343-page long report had a section of fundamental rights (like constitutional precursor documents that preceded it like the Nehru Report, 1928), which had divided these rights into two parts viz Justifiable and non-justifiable rights.

The division of these fundamental rights were advised by Sir Benegal Narsing Rau, an Indian Civil jurist and constitutional advisor to the constituent assembly, which was latter accepted and hence we have two categories of fundamental rights. While the enforceable part is included in Part-III; non-enforceable were incorporated in Part-IV as directive principles of state policy without any guarantee or assurance to be enforced via any court of law.

DPSPs resemble the Instrument of Instructions given under the Government of India Act of 1935. Dr. B.R. Ambedkar stated in their words that, the Directive Principles are like the instrument of instructions, which were issued to the Governor-General and to the Governors of the colonies of India by the British Government under the Government of India Act of 1935. What is called Directive Principles is merely another name for the instrument of instructions.

The only difference is that they are instructions to the legislature and the executive. He also described them as novel feature of the constitution. DPSPs lays down the foremost objectives of the state, apart from the norms for state to make rules and policies. They aim for a democratic nation to realize the promotion of citizens, organizing village panchayats, providing free legal aid to economically weaker person, to implement or develop Uniform civil code, providing good nutrition etc. They actually differentiate a Welfare State and Police State. They are well established to maintain the sanctity for the economic democracy as guaranteed in the Preamble.[1]

Nature And Significance Of DPSPs:

DPSPs plays a very significant role before the law-making body of India which amplify the need of these norms and provisions while framing the rule and policies. In other words, they are a code conduct for legislator and administrators of nation. As stated earlier they preserve the ideal structure of the constitution embodied in the preamble which is Justice, Social, Economic, Political; liberty, equality and fraternity.

The nature of DPSPs is well preserved in article 37 which states, The provisions 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 laws.

Though above statement makes it clear that these articles are not enforceable but mere non-enforceability doesn't make them ineffectual or baseless. Sir B.N. stated while that these principles had an educative value, which was for reminding people with great influence what the point of the Indian country is. All the arrangements in the Part incorporate the objective of the Welfare State that is India. Further Dr B.R. Ambedkar was illustrated the essence of these norms that:
the government has to answer for them before the electorate at election time.

These norms or principles help our courts while deciding or interpreting the various statues related to the common welfare of general public. These interpreting conclusions should be of manner so any of statues are not conflicting with them.

In Markandeya v. State of A.P[2], the Apex court stated the view that directive principles constitute conscience of the Constitution and together they form core of the Constitution. Also, merely because they are not enforceable by the judicial process does not mean that they are of subordinate importance to any other part of the Constitution.[3]

Thus, in Air India Statutory Corporation v. United Labour Union[4], the apex court has appropriately seen that DPSPs are precursors of the U.N. Convention on Right to Development. They are embedded as a necessary piece of the Constitution and that they currently stand raised to fundamental human rights. Despite the fact that non-justiciable, they are justiciable without anyone else.

Classification Of DPSPs:

The constitution itself does not classify the DPSPs but for the better apprehension and on the basis of their content and direction, they are usually classified into three categories: Socialistic, Gandhian and Liberal-Intellectual Principles.
  1. Socialistic Principles: They emphasis on providing better structure for economic and social justice and lay down the framework of democratic socialist state. These also contemplate the ideology of socialism. They direct the state through- Article 38, Article 39, Article 39 A, Article 41, Article 42, Article 43, Article 43 A and Article 47.
  2. Gandhian Principles: They reflect the Gandhian philosophy of reconstruction enunciated by Gandhi during the national movement. In order to pursue the path which directed by himself, some of his ideas are incorporated in DPSP and they direct the state through- Article 40, Article 43, Article 43 B, Article 46, Article 47 and Article 48.
  3. Liberal-Intellectual Principles: They emphasis on the ideology of liberalism and incline towards the political and moral philosophy-based liberty, consent of citizens and equality before the law. They direct the state through- Article 44, Article 45, Article 48, Article 48 A, Article 49, Article 50 and Article 51.

Provisions included in DPSPs after amendment:
42nd Amendment Act of 1976: There are four new Directive principles by the way of 42nd Amendment Act of 1976 to the original list:

Article 39- To secure opportunities for the healthy development of children.

Article 39A- To promote equal justice and to provide free legal aid to the poor.

Article 43A- To take steps to secure the participation of workers in the management of industries.

Article 48A- To protect and improve the environment and to safeguard forests and wildlife

44th Amendment 1978: This added Article 38 which direct the state to minimize inequalities in income, status, facilities and opportunities.

86th Amendment Act of 2002: This amendment changed the subject matter of Article 45 and brought it among fundamental rights as article 21-A. The amended principle directs the state to provide early childhood care and education for all children until they complete the age of six years.

97th Amendment Act of 2011: This amendment added a new directive principle (Article 45) pertaining to co-operative societies. The amended principle directs the state to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.

Compatibility With Fundamental Rights:

A significant concern in regards to the legitimacy of the DPSPs is their compatibility with the Fundamental Rights under the Part III of the constitution, which are enforceable in the Supreme Court and even in the High courts by the way of writs. The following can be the major difference which make them apart in the ground if enforceability:
  1. While the Fundamental Rights put limitation on the exclusive powers of the government applying on an individual or they prohibit the state from violating these rights, whereas, DPSPs direct the state for doing something.
  2. A law made against the DPSPs by the state cannot be declared void by the courts as it is an instrument of instructions' which is under discretion of the state to apply or not, but this is not in the case of Fundamental Rights.
  3. While the objective of Fundamental Rights is to establish political democracy, whereas, objective of DPSPs is to establish economic and social order.
  4. The DPSPs cannot be violated as such by any individuals or the state authority, until there is any law made for the purpose, while there are strict measures like Article 32 and 226 are given in constitution against the violation of an individual's Fundamental right.
Our constitution with the Article 13 put restriction on state to not make any law which takes away or abridges the rights conferred by Part III of the constitution. In Bandhua Mukti Morcha case[5], Supreme Court ruled out while dealing with the fundamental rights that the court normally would not intervene at the engaged or busy body of state, but when there is violation of fundamental rights of a person class of persons, the court must act and protect the same.

Also, while ruling out the nature of Article 32 in Rudul Sah v. State of Bihar[6], the Apex court stated that ordinarily, petition under article 32 would lie only for the enforcement of the fundamental rights but in exceptional cases of the nature indicated by us above that compensation may be awarded in a petition under Article 32.

Having said that, the basic objective of the fundamental rights to conserve the moral, intellectual and spiritual development of individuals, while DPSPs are the basically the code of conduct to show the path to the legislators so that the sanctity which is given under preamble can be achieve. By the way of numerous litigations the Hon'ble Supreme Court ruled out that in order to give better interpretation in the case protection of rights it is required to receive illumination from the trinity of provisions which circulate and charge up the constitution and they are the preamble, the Fundamental Rights and DPSPs.[7]

Conflicts With Fundamental Rights:

Whenever there is any case of conflict between Fundamental Rights and DPSPs, the legal settled views over the time have differed with every judicial decision. This is a debatable part that has been subject to numerous litigations in the Supreme Court. Let us try to find some relationship with the four historical cases on the course of law, between fundamental rights and DPSPs in the field of conflict:
  1. Champakam Dorairajan Case (1951)[8]: In this case, the Apex Court held that any law which violate the Fundamental Rights is void, that is not the case if any law otherwise contravenes the DPSPs. Thus, DPSPs regarded to run as a subsidiary to Fundamental Rights. This case led to the First Amendment Act, 1951, the Fourth Amendment Act (1955) and the Seventeenth Amendment Act (1964) to implement some of the Directives.
  2. Golaknath Case (1967)[9]: Supreme Court ruled out that Parliament cannot amend or curtail Fundamental Rights to implement any of DPSPs. The judgement reversed Supreme Court's earlier decision which held that Parliament have power to amend all parts of the Constitution, including Part III related to Fundamental Rights in the cases Shankari Prasad v. Union of India[10] and Sajjan Singh vs State of Rajasthan[11]. This decision led to the 24th Amendment Act 1971 & 25th Amendment Act 1971 declaring that it has the power to abridge or take away any of the Fundamental Rights by enacting Constitutional Amendment Acts. "25th Amendment Act inserted a new Article 31C containing two provisions:

    a. No law which seeks to implement the socialistic Directive Principles specified in Article 39 (b)22 and (c)23 shall be void on the ground of contravention of the Fundamental Rights conferred by Article 14 (equality before law and equal protection of laws), Article 19 (protection of six rights in respect of speech, assembly, movement, etc.) or Article 31 (right to property).

    b. No law containing a declaration for giving effect to such policy shall be questioned in any court on the ground that it does not give effect to such a policy."
    Note: In the same case the then Chief Justice Koka Subba Rao had first invoked the doctrine of prospective overruling, which says that the law declared by the court applies to the cases arising in future only.
  3. Kesavananda Bharti Case (1973)[12]: This is a landmark case in the history of law which solely determine the basic structure doctrine of the constitution. Apex Court ruled out the second provision of the Article 31C, which is amended by the way of 25th Amendment Act to be invalid or unconstitutional. Whereas, leaving the first provision of Article 31C constitutional and valid. This case led to the 42nd Amendment Act, 1971, which widened the scope of the said first provision that any law is made to execute the DPSPs it would be invulnerable from unlawfulness in light of the fact that it disregards Articles 14 and 19.
  4. Minerva Mills Case (1980)[13]: The above-mentioned view for the first provision has been struck down and made Article 31C unconstitutional and invalid. It also made DPSPs subordinate to Fundamental Rights. Supreme Court also stated the balancing mechanism between the Fundamental Rights and DPSPs while stating that the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles.

Why Did The Constitution Makers Make Them Unjusticiable?

The enforceability and usefulness of DPSPs has also been in the top most debated section of constitution. While knowing the fact understood in earlier sections that there will be no effect as such if any how court struck down the DPSPs but contrary if the same happens with the Fundamental Rights, the result will be fatal. Now question comes which also raised in the parliament during the debate over the enforceability of DPSPs that does making them unjustifiable make them good-for-nothing? Do we need to make them enforceable in order to make them relevant? Some of the social activist believes that we betrayed the elitist character of constitution by making them unenforceable. To get answer of these questions, we should Analyze the views of the constitution makers.

Several members like S.N. Rau, Dr. B.R. Ambedkar, K.T. Shah, Alladi Krishnaswami Ayyar, expressed their words of wisdom while defending the inclusion of DPSPs as enforceable rights.
K.T. Shah expressed that by making them unenforceable we without making them imperative obligations of the State towards the citizen, we would be perpetrating a needless fraud, since it would provide an excellent window-dressing without any stock behind that dressing. He was in the intention to make them enforceable for making the state more answerable towards their citizen.

S.N. Rau on the other hand believed that socio-economic principles are not suitable for legal enforcement. To support his argument, he gave two reasons viz. first, the implementation of DPSPs needed a positive state action which can only be provided when the said action is practicable and also the state might suffer or face in, for example if it says providing housing for all. Second, he believed that these principles should not be under the judicial sphere, as it meant to be deal by the elected legislative body and also in effect would have a veto on enactment exercisable whenever and at any case of any prosecutor. He also emphasized that these had an educative sentiment, which further could at times attack the individual rights for more prominent goods.

Like Shah, Dr. B.R. Ambedkar was the strong proponent of the Directive Principles. He disagreed with the moral sentiments of S.N. Rau and believed that they must be enforceable. He also gave the time span within which this enforceability must be there.

He supported the idea of socialism very strongly. He also said that in case of the breach of these DPSPs politicians may not have to answer the courts but would certainly have to answer before the electorate before the election time. However, comparing the aspects of Rau and Ambedkar both seemed to have democratic social and economic politics. But assembly rejected the idea of Shah and Ambedkar to have enforceability on the ground that these provisions could be dealt with the upcoming or farther legislation.

Alladi Krishnasawmi Ayyar also contented that it should be leaved to the free appointed legislature whether to cognize or ignore them. In the end, the Assembly adopted the nature of DPSPs which can be trace by the Article 37 in a form that encoded an institutional division of labour between the courts, and the executive and legislature.

Should We Make DPSPs Justiciable:

These provisions were not made justiciable by the constituent assembly due to above mentioned reasons. Having said that, they are not useless as such. But question arises here that if they were made justiciable, will they become more relevant?

The initiatory argument goes in the favour of making them enforceable, that they make state more answerable or responsible towards their citizens. Also, check the tyrannical temperament of the ruling authority as stated by K.T Shah in the constituent assembly. If we see the DPSPs then most of them are the promises which parties hold during the time of election, so as to make them answerable in front of electorate before coming in power. But our sociological realities show us that they are seldomly kept. So, in order to put more control over their action DPSPs must be enforceable.

Contrary to this, it is expressed that making them justiciable is ineffectual, since we have a large democratic establishment containing already number of laws and policies in the area where we need to implement DPSPs.

For better instance since 1950 till onwards many acts and policies like The minimum wages Act (1948), the Maternity Benefit Act (1961), Child Labour Prohibition and Regulation Act (1986), Equal Remuneration Act (1976), Integrated Rural Development Programme (1978), Jawahar Rozgar Yojana (1989), Swarnajayanti Gram Swarozgar Yojana (1999), Sampoorna Gram Rozgar Yojana (2001), Prevention of Atrocities Act safeguarding the interests of SCs and STs and so on had been implemented to give effect to these DPSPs, even Article 21A which was inserted by the 86th amendment is a example of the same.

In this way the governments have been working in the manner to give them effect dynamically and to create welfare state. This dynamic nature doesn't bound the govt. to just act like the memorandum or written proposal, but also give chance to modify or interpret them better for the citizens or general public. It can be understood that the need of the people may vary from the other state, so to make them effective government can practice this approach. While understanding this other face of the coin, it is clearly presented that making DPSPS justiciable is not crucial.

Another argument against the enforceability we find from the idea of secularism that they are not very secular. One hand it says to implement the Uniform Civil Code, another hand it restricts the slaughter of cows via Article 48 in the name of endeavor. This directly shows the background of Hindutva' in the constitution and also doesn't seems to be very qualified on the platform of today's national sentiment.

State can ban beef according to the required scenario of the state, but making them enforceable may create chaos or communal tension among people. State should not interfere in the religious sentiment of any of the person or class of persons, as state doesn't have any religion. Supporting on religion centered actions might bring the ire of the country DPSPs are more a moral percept than a matter of legal technicality, which are inarguably outside the scope of law.

Article 47 direct to prohibit the alcohol and other intoxicating drugs which on first view looks morally good, though it never has been enforced on a nation-wide level. However, presently Bihar, Gujrat, Nagaland and Mizoram are dry states and union territory of Lakshadweep also included in this list. However, the path which tries to impose morals on the people without looking the consequences and other aspects can be disastrous for a democratic country like India.

After analyzing all the above-mentioned arguments and the views of our constitution makers it can be concluded that making the DPSPs justiciable is superfluous and unneeded. The assembly didn't want to do so because they know it would be an institutional division between the courts of law, and the legislature and executive. Also, when most of the provisions have been enforced by the way of legislations, making them all enforceable put more strain on state and check the dynamic ability to approach the welfare state.

The intention behind the inclusion of DPSPs in the constitution is to make social and economic democracy in the nation or ultimately work for the welfare of general public. These always being the instructions for the state, while making any rules and policies. Every such rules and policies should meet the norms which is mention in Part IV of the constitution. So merely because they are not justiciable doesn't mean they are useless. Their importance has been always interpreted by our Apex Court. They keep check on the state not as the court of law but as the beneficiary or citizens for whom the state is working.

Having said that, they are indisputable useful and provide ground for welfare state, but making them justiciable will fill no need and doing so in such a diverse nation will offer ascent to net abuse by overzealous people. Presently these principles are well settled and in balance medium. The important testimonial which should be looked upon is that they must be invoked secular and free from moral precepts.

  1. Durga Das Basu, Introduction to the Constitution of India, 163 (22nd ed., 2015).
  2. (1989) 3 SCC 191: AIR 1989 SC 1308
  3. State Of Madras v. Srimathi Champakam Dorairaja, AIR 1951 SC 226
  4. AIR 1997 SC 645
  5. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
  6. (1983) 4 SCC 141
  7. Supra Note 5
  8. State of Madras v. Champakam, (1951) SCR 523 (531): AIR 1951 SC 226
  9. Golaknath v. State Of Punjab 1967 AIR 1643
  10. Sri Sankari Prasad Singh Deo vs Union Of India And State Of Bihar, 1951 AIR 458
  11. Sajjan Singh vs State Of Rajasthan, 1965 AIR 845
  12. 1967 AIR 1643, 1967 SCR (2) 762
  13. AIR 1980 SC 1789

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