Directive Principles of State policies; A quick rewind
-Nitish Shukla
Introduction
Directive Principles of State Policy (DPSP) are enumerated under part IV of the Constitution of India from Article 36 to 51. This idea of incorporating DPSPs in our constitution was borrowed from the Irish Constitution, which itself had borrowed the idea of DPSP from the Spanish Constitution. Father of our Indian Constitution Dr. B R Ambedkar has described and said that these directive principles ‘novel feature’ of the Indian constitution and that they seek to establish a welfare state in India. DPSP are those set of principles which a legislative body or state should keep in their mind while performing any task affiliated to them. The very motive behind including the DPSP in our constitution was to seek and achieve social and economic democracy in the country as the Fundamental Rights were directed so to achieve political democracy within the country and Fundament Rights along with DPSP achieve the wholesome objective of the democracy. For that matter Granville Austin has described the Directive principles and the Fundamental Rights as the ‘conscience of the constitution’1. Directive Principles are those set of instructions or recommendation that our constitution provides to the state in legislative, executive and administrative matters. For that matter Article 37 of the Constitution which is a DPSP itself states that these principles given in the constitution under part IV are fundamental in the governance of the country and it should be the duty of every state to apply these principles to their functioning. Here it becomes important to realise that DPSP have been subjected to numerous judicial proceedings and it has been one of the most controversial part of the Constitution for it being so essential in nature but barely any scope of its application which makes it a matter of serious concern for every organ of the government and the citizens of the country.
Classification of DPSP
Though DPSPs have no such formal classification given on the constitution, but one the basis of principles it contains, it can be classified into three broad categories- Socialistic, Gandhian and liberal intellectuals. Socialistic principles of DPSP reflects the ideology of socialism that all the people are equal and that their distinct attributes should not be taken into consideration while the state performs its functions, these principles aim at providing social and economic justice. Some of the provisions of socialistic nature Article 38; which talks about welfare of the people by securing a social order for justice, Article 39(a) which promotes equal justice and provides for the free legal aid to the needy person, Some of the other Articles containing socialistic ideologies are Article 39, 41,42,43,47 etc. Then comes the Gandhian Principles contained in the DPSPs. These principles are based on the Gandhian ideology and represents the programme of reconstruction given by Gandhi ji during the national movement. The constituent assembly included these principles to fulfil the dreams of Mahatma Gandhi, these principles are, Article 40; which talks about organising village panchayat and delegate to them enough power and resources for their smooth functioning, Article 43; to promote cottage industry in rural India, Article 43B; which talks about formation and promotion of cooperative societies. There are various other Articles like Article 46, 47, 48 of the Constitution which contains the Gandhian ideology. Apart from these two, there is this third category of liberal intellectual principles which represents the ideology of liberalism and are based on liberty and consent of the individual. The provisions containing these ideologies are Article 44; which aims to secure Uniform Civil code throughout the Country, Article 45; to provide early childhood care and education for all children below the age of 6 years, Article 48; a provision regarding animal husbandry and organisation of agriculture. Some of the other provisions regarding is ideology are Article 48a, 49, 50, 51.
Legal Status of DPSPs
While the constitution of India was under construction, Sir B.N Rau one of the constitutional advisors of the constituent assembly, suggested that rights of an individual should be given in two parts, first being the justiciable one and second being the non-justiciable part of rights. In that response fundamental rights were incorporated as the justiciable rights while the DPSPs were incorporated as the non-justiciable nature of the rights. For it bearing so much importance in the constitution and functionaries of the government it is needed that DPSPs must be justiciable in nature, but it is the matter of fact that they are non-justiciable in nature. Though they are non-justiciable, Article 37 of the constitution makes it clear that these principles are fundamental in the governance of the country and it shall be the duty of the states to apply these principles while discharging their Functions. And in present time DPSPs hold no legal enforceability but has, in a way through legislation been implemented in various policies of the government. For its implication, Planning commission was established in 1950 which aimed at securing socio-economic justice (one of the directive principles) in the society. Later in 2015 this planning commission was replaced by a new body called NITI Aayog. In order to achieve economic justice given under Article 43 of the Constitution, various legislations were made so far to comply with this Directive principle; The minimum Wages Act (1948), Bonded labour system abolition Act (1986) and many more. In order to comply with Article 40 and to realise Gandhiji’s dream, Three-tier Panchayati raj system at village levels has been introduced by the 73rd amendment act 1992. Further, the 102nd amendment act of 2018 conferred a constitutional status on the National Commission for Backward class to provide equal opportunity to backward people. The legal Services Authorities Act (1987) was enacted to give enforceability to free legal aid to the needy person and comply with Article 39A of the constitution. By this we can analyse that though DPSPs are not justiciable, the government has been working for the implementation of these DPSPs through various legislations and provide legal recognition to them.
Fundamental Rights Vs Directive Principles
Since the enforcement of our constitution this part; Fundamental rights Vs DPSPs have been in conflict due to the justiciability of Fundamental Rights on one hand and non-justiciability of Directive Principles on the other hand. This legal battle began with the case of Champakam Dorairajan Case 2, in this case the hon’ble supreme court held that in any case of conflict between fundamental rights and directive principles, the Fundamental rights would prevail and that Directive principles have to confirm to and run as subsidiary to fundamental rights. This case also made a point that fundamental rights can be amended by parliament by enacting constitutional amendment act. Consequently, first, fourth and seventeenth amendment act was made in order to implement some of those directive principles.
This case was then followed by Golaknath Case 3 in 1967 and in this case the supreme court modified the previous judgement of Dorairajan case and held that Fundamental Rights can not be amended for the implementation of Directive Principles. In reaction to the Golak nath case parliament passed the 24th and 25th amendment Act (1971) and 24th Amendment act declared that the Parliament holds power to abridge or take away any of the fundamental rights by enacting constitutional amendment act. Further 25th amendment act inserted Article 31C to the part III of the constitution which states that no law which seeks to implement any of the directive principles specified under Article 39(b) and 39(c) shall be held void on the ground that it contravenes the provisions of article 14, 19 or article 31of the constitution and that no law giving force to directive principles can be questioned in the court of law. But later on, in the Kesavananda Bharti case 4; the case which changed the whole scenario of the constitution, declared the second provision of Article 31C unconstitutional on the ground that judicial review is the basic structure of the constitution and the aforesaid provision is violative of the basic structure. Later this was followed by 42nd amendment act 1976 which further extended the scope of article 31C and established the legal primacy and supremacy of directive principles over fundamental rights under article 14,19 and 31. The conflict continued and in 1980 Minerva Mills Case 5 came and the extension of article 31C in 42nd amendment act was held unconstitutional and invalid by the hon’ble high court, it implied that once again Fundamental rights got supremacy over Directive principles and these principles were made subordinate to the Fundamental Rights. The court in this case also observed that “the Indian Constitution is founded on the bedrock of the balance between fundamental rights and directive principles. They together constitute the core of commitment to social revolution and to give absolute primacy to one over the other is to disturb the harmony of the constitution”. Therefore, the present position of Fundamental rights Vs Directive principles is that fundamental rights enjoys supremacy over the directive principles. Yet, it cannot be said that directive principles cannot be implemented. For that matter parliament can amend the fundamental rights for implementing the directive principles, so long as the amendment does not violate the basic structure of the constitution.
Criticism of the Directive Principles
The Directive principles have been criticised by various constitutional experts, jurists and some members of constituent assembly also. These directives have ben mainly criticised for its non-justiciable in nature and for that matter Nasiruddin, one of the members of constituent assembly contended that these directive principles are like new year’s resolutions, which are broken on the second day of January. Other prospective of its criticism is that these directive principles are not logically arranged in part IV of the constitution. These principles are not properly classified and grouped, and it causes some relatively unimportant issues to mix with the most vital economic and social question. Sir Ivor Jennings a constitutional expert, pointed out that these principles have no consistent philosophy. Another prospective of it being criticised is that they are conservative in nature. It means these principles were made on 20th century when the need and demands of the society were different and that of simple and static in nature but due to change in time and entering to the 21st century when the society have became more complex and variable , it raises a serious concern that whether they are suitable for 21st century and can cater the need of this society. One more prospective for its criticism is that thing that these directive principles leads to a constitutional conflict between various functionaries of the government. To name a few, conflicts between state and the centre, between president and the prime minister and between chief minister and the governor. When the prime minister gets the bill passed by parliament which damages the directive principles, the president may reject the bill and not give his accent on the ground that these directive principles are fundamental to the functioning and governance of the country and hence, the ministry has no right to ignore them. The same kind of conflict may arise between governors and the chief ministers in state level.
Though these Directive principles of state policies are criticised on several ground, they are always given equal and deserving importance and attention by the legislature, executive and judiciary on the ground that these principles are the vital organ of the constitution and bears a great importance and that all the part of the constitution must be read together in order to deeply understand the ideology of the constitution and to achieve the true goal of the constitution and our constitution makers and that these directive principles form the dominating background to all state action, legislative or executive and also a guide to the courts of India in some respects.
References
Granville Austin, The Indian Constitution- Cornerstone of a Nation, oxford,1966, PG. 75
State of Madras Vs. Champakam Dorairajan,(1951)
Golak Nath Vs. State of Punjab (1967)
Kesavananda Bharati Vs. State of Kerala (1973)
Minerva Mills Vs. Union of India (1980)
Name: Nitish Shukla
Batch: May 3
College: Amity Law School, Lucknow Campus
Year: 3rd