Articles 36 to 51 Directive Principles – Conscience of the Constitution

DIRECTIVE PRINCIPLES – CONSCIENCE OF THE CONSTITUTION

Beacon light for the governance paradigms- lofty ideals to energise the legislative creativity on the exalted paths of justice – Part IV of Constitution of India is pure and lucid political philosophy, which inspires the script and permeates the structure of the text.

Analytical approach to comprehend the ideals and values of the Constitution necessarily leads to the conclusion that the Part IV, a rhythmic allegory, conceptualizes and delineates the ‘sensibilities’ of politically ideated socio-economic justice paradigms. It is this sensibility that enlivens the quintessential ‘sense’ of the Constitution. Shorn of vitality of Part IV, the Constitution of India is bound to stagger into a terminal stage of mortification of ‘constitutional conscience’.

The question: Why the Directive Principles are not legally enforceable, as per Article 37, have multiple implications.

  1. Did we, as a nation, ever entertain some confidence-crisis which led us to seek the comfort zone of installing these Directives in the text only as sermons?
  2. Was the Constituent Assembly actually unable to evolve a more robust paradigm for effective and deviation-free value-additions in the State functions and coalesce such value-based paradigm with meaningful value-evaluation through empowered judicial wing?
  3. Is Part IV of the Constitution merely reflective of a maudlin sentimentality in favour of a universally appealing philosophy in contradistinction, with firm resolve of the nation to adopt the ‘principles’, in letter and spirit, with plenary might of the celebrated three wings of the State?
  4. Were we, as a nation, principally opposed to the idea of curtailing the discretion of the State to discard these principles qua its legislative and executive functions on the basis of some implicitly perceived practical considerations or some political exigencies?

It often appears that laying out the Directive Principles as vapid but nourishing salad-bites amidst the glossy pages of delightfully crafted spice-rich and flavor-rich ’option-menu’ placed on the political tables of the State to satisfy the electoral appetites quintessentially tantamount to adding a chapter on moral precepts in the Constitution.

Justice Hegde while countenancing the same critical questions in AIR 1970 SC 2242 Chandrabhavan V Union of India, answers the question with luminous clarity through following words (H M Seervai treats these observations as Obiter and de hors the factual mould of the said case)

The provisions of the Constitution are not erected as barriers in progress. They provide a plan for orderly progress towards the social order contemplated by the preamble to the Constitution. They do not permit any kind of slavery, social, economic or political. It is a fallacy to think that under our Constitution, there are only rights and no duties. While rights conferred under Part III are fundamental, the directives given under Part IV are fundamental in the governance of the Country. We see no conflict on the whole between the provisions contained in Part III and Part IV. They are complementary and supplementary to each other. The provisions of Part IV enable the legislatures and the Govt. to impose various duties on the citizens. The provisions therein are deliberately made elastic because the duties to be imposed on the citizens depend on the extent to which the directive principles are implemented. The mandate of the Constitution is to build a welfare society in which justice, social, economic and political shall inform all institutions of our national life. The hopes and aspirations aroused by the Constitutions will be belied if the minimum needs of the lowest of our citizens are not met.”

On 15 August 1948, in the Independence day issue of The Hindu, Sir B.N. Rau contributed a special article on the draft Constitution. In that article, Sir B.N. Rau, inter alia, opines:

“…..Certain lawyers object to the Part in the draft Constitution dealing with Directive Principles of State Policy, on the ground that since the provisions in that Part are not to be enforceable by any Court, they are in the nature of moral precepts; and the constitution, they say, is no place for sermons. But it is a fact that many modern constitutions do not contain moral precepts of this kind, nor can it be denied, that they may have an educative value.”

 

The Chairman of the Drafting Committee, Dr.Ambedkar, while introducing the draft Constitution as settled by the Drafting Committee, (see C.A.D. Vol.VII, p.41) very emphatically stated that as under:

If it is said that the Directive Principles have no legal force ….. I am prepared to admit it. But I am not prepared to admit that they have no sort of binding force at all. Nor am I prepared to concede that, they are useless because they have no binding force in law… The Draft Constitution as framed only provides a machinery for the government of the Country. It is not a contrivance to install any particular party in power as has been done in some countries. Who should be in power is left to be determined by the people, as it must be, if the system is to satisfy the tests of democracy. But whoever captures power will not be free to do what he likes with it. In the exercise of it, he will have to respect these instruments of instructions which are called Directive Principles. He cannot ignore them. He may not have to answer for their breach in a Court of Law. But he will certainly have to answer for them before the electorate at election time. What great value these directive principles possess will be realized better when the forces of right contrive to capture power.”

 

However, in Olga Tellis Vs. Bombay Municipal Corpn., (1985) 3 SCC 545, para 22, Hon’ble Supreme Court eloquently explained the law as under:

“Social commitment is the quintessence of our Constitution which defines the conditions under which liberty has to be enjoyed and justice has to be administered. Therefore, Directive Principles, which are fundamental in the governance of the country, must serve as a beacon light to the interpretation of the Constitutional provisions”. 

 

Again in Kesavananda Bharati Vs. State of Kerala, (1973) 4 SCC 225, para 646, the Hon’ble Supreme Court recapitulates the constitutional value of Part IV as under;

“The most modern Constitutions contain declaration of social and economic principles, which emphasise, among other things, the duty of the State is to strive for social security and to provide work, education and proper condition of employment for its citizens. In evolving the Fundamental Rights and the Directive Principles, our founding fathers, in addition to the experience gathered by them from the events that took place in other parts of the world, also drew largely on their experience in the past. The Directive Principles and the Fundamental Rights mainly proceed on the basis of Human Rights. Representative democracies will have no meaning without economic and social justice to the common man. This is a universal experience. Freedom from foreign rule can be looked upon only as an opportunity to bring about economic and social advancement. After all freedom is nothing else but a chance to be better. It is this liberty to do better that is the theme of the Directive Principles of State Policy in Part IV of the Constitution”.

 

It is aptly said: wisdom has its own limitations; folly does not have such handicap. We know the limitations of the ‘wisdom chapter’ of the Constitution i.e. Part IV of the Constitution.  Any attempt to answer these questions must start with reading the seminal Articles relating to socialist principles contained in Part IV.

 

Article 38

Article 38 . State to secure a social order for the promotion of welfare of the people

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

  1. Amendment. Clause (2) of Art.38 has been inserted by the Constitution (Forty Fourth Amendment) Act 1978.
  2. Analogous Constitutions. This Article corresponds to (i) Article 45(1) of the Constitution of Eire 1937; and (ii) Articles 14 and 15 of the Constitution of the USSR 1977.

Article 39

Article 39.  Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing

(a) That the citizens, men and women equally, have the right to an adequate means to livelihood;

(b) That the ownership and control of the material resources of the community are so distributed as best to sub serve the common good;

(c) That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) That there is equal pay for equal work for both men and women;

(e) That the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

  1. Analogous Constitutions. This Article corresponds to (i) Article 45(2)-(4) of the Constitution of Eire 1937; and (ii) Articles 10, 11, 35 of the Constitution of USSR 1977.
  2. International Covenant and Charter. This Article relates to (i) Articles 3, 6 and 7 of the International Covenant on Economic, Social and Cultural Rights 1966; (ii) Article 23(2) of the Universal Declaration of Human Rights 1948.
  3. Clause (f) of Art.39 was substituted by the Constitution (Forty Second Amendment) Act 1976.

 

The constitutional scheme disrupts the coalescence of the weighty words of wisdom enshrined in its Part IV of the Constitution with the velocity of the processes of legal enforceability. It was indeed not a crisis of confidence but considerations of pragmatism and evaluation of institutional strengths which  led to treatment of ‘expressions’ and ‘phrases’  contained in Part IV as nourishing salad bites amidst the gastronomical delights spread out in the constitutional scheme.

 

The Directives, however, differ from the Fundamental Rights contained in Part III of the Constitution or the ordinary laws of the land, in the following respects:

  • The Directives are not enforceable in the Courts and do not create any justiciable rights in favour of individuals.
  • The Directives require to be implemented by legislation, and so long as there is no law carrying out the policy laid down in a Directive, neither the State nor an individual can violate any existing law or legal right under the pretext of following a Directive.
  • The Directives, per se, do not confer upon or take away any legislative power from the appropriate Legislature. Legislative competence must be sought from the Legislative Lists contained in the 7th Schedule of the Constitution.
  • The Courts cannot declare any law as void on the ground that it contravenes any of the Directive Principles. Neither are Courts competent to compel the Government to carry out any Directive or to make any law for that purpose, e.g., to provide for free compulsory education within the time limited by Art.45, or to provide adequate means of livelihood to every citizen.
  • Though it is the duty of the State to implement the Directives, it can do so only subject to the limitations imposed by the different provisions of the Constitution upon the exercise of the legislative and executive power by the State. Art. 13(2) prohibit the State from making any law which takes away or abridges the fundamental rights conferred by Part III. The Directive Principles cannot override this categorical limitation upon the legislative power of the State.

 

Article 36 to Article 51 of Constitution of India have been ceremonially hailed by the republic not only as moral precepts but as guiding and goading principles in the context of discharge of sovereign functions of the State. The Directive Principles epitomize the socio-political values which constitute foundation of the fundamental principles to nurture and promote social and economic justice in the republic. The Directive Principles confer on the republic the status of a ‘Welfare State’ as distinguished from ‘Police State’.

The conceptual scheme of the directive principles is trifurcated into (a) Socialist principles (b) Gandhinian principles(c) Liberal-intellectual principles. Article 38, 39, 39a, 41, 42, 43 43A, and article 47 fall in the first category of socialist principles. Identically articles 40, 43, 43B, 46, 47 and article 48 are treated as Gandhianian Principles. Further Articles 44, 45, 48, 48A, 49, 50 and 51 are in the category of liberal intellectual principles.

The amendments in Part IV of the Constitution were introduced through 42nd Amendment, 44th Amendment, 86th Amendment and 97th Amendment.

Two judicial views on the ‘civilization-to-constitution’ discourse in India also elucidate the relevance of Part IV as a scriptural homily in the context of quest of the nation for jurisprudential sources for the functional paradigms of the independent republic.

Justice JC Shah in State of Gujarat Vs. Vora Fiddali Badruddin Mithibarwala (1964) 6 SCR 461, has held that:

There is no warrant for holding at the stroke of midnight of the 25th January, 1950, all our pre-existing political institutions ceased to exist, and in the next moment arose a new set of institutions completely unrelated to the past. The Constituent Assembly which gave from the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set up… the process was not one of destruction, but of evolution.

Justice Vivian Bose in Virendra Singh Vs. State of UP (1955) 1 SCR 415, has held that:

In our opinion, the Constitution… blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State now seeks to uphold… the past was obliterated except where expressly preserved; at one moment of time the new order was born with its new allegiance springing from the same source for all, grounded on the same basis: the sovereign will of the peoples of India with no class, no caste, no race, no creed, no distinction, no reservation.  

Past was never, in real sense of the word, obliterated from the political and socio-economic life of India and the kernel of the Constitution, Directive Principles of State Policy, encapsulate the magnificence of timelessness and the glory of our value rich politics.

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