Nature of the Directive Principles Of State Policy - Contours of the Context and Content

Directive Principles of State Policy enjoined in Articles 36 - 51 of Constitution of India are in the nature of 'Social Policy'. The principal object in enacting the Directive Principles of State Policy appears to have been to set standards of achievement before the Legislature and the Executive., the local and other authorities, by which their success or failure could be judged. They are in the form of policy directions to the State to move for the overall Welfare State based on the utilitarianism and social engineering principles of the maximum happiness or interests of the maximum number of people with least fiction. They cast a duty on the State to apply these principles in making laws.

It is the duty of the State to formulate its social policies in such a way that social and economic justice is translated realistically and factually and the people of India nourish a feeling of having access to justice. They cast obligations on the State to promote social and economic rights of the people of India. Though they are not enforceable or non-justiciable in the Court of Law, but, nevertheless, they are fundamental in the governance of the country.

The authors of the Constitution of India aspired and cherished that the State shall strive to achieve these objectives of 'Welfare State' through the guidelines prescribed in the Directive Principles of State Policy.

The genesis of Directive Principles of State Policy was explained in the Sapru Committee Report, 1945 as follows;

We have come to the conclusion that in addition to these Fundamental Rights, the Constitution should include certain directives of State Policy which, though not cognizable in any Court of Law, should be regarded as fundamental in the governance of the country.

Be that as it may, it is said that the inspiration to incorporate non-justiciable Directives of State Policy in the Constitution of India was the Irish Constitution which reads as under;
The principles of social policy set forth in this Article (Article 45 of the Irish Constitution) are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognizable by any Court under any of the provisions of this Constitution.

Are these directives mere pious obligations? In the words of Dr. B. R. Ambedkar the nature and ambit of these directives of State Policy are;
In enacting this Part of the Constitution, the Assembly is giving certain directions to the future legislature and future Legislature and future Executive to show in what manner they are to exercise the Legislature and Executive power they will have. Surely it is not the intention to introduce in this Part these principles as mere pious obligations.

These Directives of State Policy are not mere pious obligation, but they are to be translated in law to achieve the ends of justice, namely, social justice, economic justice, political justice, distributive justice and access to justice; they are in the good governance of the country; they show the path of working with the Constitution of India; they are directives in the furtherance of economic democracy to fulfil the cherished and avowed principles of social as well as political democracy. Social and political empowerment is only possible if there is economic empowerment of the people of India.

Directive Principles Of State Policy are non-justiciable and Fundamental Rights are justiciable

There is not only a Bill of Rights containing justiciable Fundamental Rights of the individual [Part III of Constitution of India] on the model of the Amendments to the American Constitution but also a [Part Iv] containing Directive Principles of State Policy, which confer no justiciable rights upon the individual but are nevertheless to be regarded as 'fundamental in the governance of the country - being in the nature of 'principles of social policy' as contained in the Constitution of Eire.

Theoretically, a merely declaratory Bill of Rights was open to the framers of Constitution of India, but the practical compulsion of our fight for independence made a judicially enforceable Bill of Rights inevitable. In Constitution of India fundamental rights are strict rules of law limiting legislative and executive power.

It was considered by the makers of Constitution that though they could not, owing to their very nature, be made legally enforceable, it was well worth to incorporate in the Constitution some basic non-justiciable rights which would serve as moral restraints upon future Governments and thus prevent the policy from being torn away from the idea which inspired the makers of the organic law.

This is emphasized, first by Article 13 (2) of Constitution of India which expressly declares that any law made in contravention of Fundamental Rights is pro tanto void, and, secondly, by Articles 32 and 226 of Constitution of India which confer on Supreme Court and the High Courts' respectively the power to grant relief against the violation of Fundamental Rights by the issue of appropriate writs.

The famous author GRANVILLE AUSTIN observed;
The Indian Constitution is first and foremost a social document. The majority of the provisions are either directly aimed at furthering the goals of social revolution or attempt to foster this revolution by establishing the conditions necessary for the achievement. Yet despite the permeation of the entire Constitution by the aim of national renaissance, the core of the commitment to the social revolution lies in Part III and IV, in the Fundamental Rights and in the Directive Principles of State Policy. These are conscience of the Constitution.

If a law made by the legislature violates any of the Fundamental Rights included in Part III of the Constitution of India, it is the duty of the Court to strike down that law as unconstitutional. The Court has no power to similarly invalidate the law which goes against Directive Principles of State Policy because the Constitution declares them to be not enforceable by any Court.

Of course, in determining the constitutionality of the impugned law as well as in finding out the ambit of the fundamental rights which is alleged to have been violated, the Court has to remember that the Judiciary is part of the State within the definition of Article 36 of Constitution of India, so that the Court cannot overlook the fact that, though not directly enforceable, the Directive Principles form part of the fundamental principles of the State in India and that the legislature while making the law, has to apply those Directives.

The duties imposed on the State by Part III (i. e Fundamental Rights) are essentially negative in character. By the mandate contained in this Part, the State is asked not to do certain things. The breach of those mandates is made justiciable because the nature of these mandates is such that they can be easily enforced through Courts. The mandates in Part IV (i. e Directive Principles) are positive mandates.

Thereunder, the State is directed to take certain positive steps for the advancement of the society. For taking those steps necessary condition must first be created. In the very nature of things, the mandates cannot be enforced through Courts. It would be wrong to say that these positive mandates are of lesser significance than the mandates under Part III of the Constitution of India.

In the Supreme Court observed that the Directive Principle has been lifted up to the Fundamental Right especially in the case of right to free and compulsory education for children (Right of Children to Free and Compulsory Education Act 2009). In interpreting the Constitution, due regard has to be given to the Directive Principle which has been recorded as the soul of the Constitution in the context of India being a Welfare State.

The Preamble itself is elaborated in the two vital chapters of the Constitution on Fundamental Rights and Directive Principles of State Policy. In the Constituent Assembly Debates, Dr. B. R. Ambedkar has understood that one of the objectives of the Directive Principles of State Policy is to achieve economic democracy, and left that in the hands of the elected representatives.

Even the Bill of Rights (i.e., the list of Fundamental Rights) became bulkier than elsewhere because the framers of the Constitution had to include novel matters owing to the peculiar problems of our country. e.g. Untouchability, Preventive Detention.

Judicial Response to the Relationship between the Directive Principles of State Policy and Fundamental Rights - A Progressive Movement from State to Mutual Reciprocal and Not Mutual Antagonising

In the background of the above, it is imperative to note the movement of the Indian Judiciary in this perspective that moved from rigid or cold to supplementary and complementary or to warmed up to balance bedrock and Directives of State Policy are inasmuch as significant fundamentals as the Fundamental Rights and as such reading Directives of State Policy in the phraseology of fundamental rights.

In the case titled [State of Madras Vs Champakam Dorairajan, AIR 1951 SC 226; 1951 SCR 525] the Supreme Court's approach was rigid as it held that Directive Principles of State Policy cannot override the provisions contained in Part III of the Constitution of India but have to conform to and run as subsidiary to Fundamental Rights. It discerns that the Apex Court in its analytical positivist approach held that the Directive Principles of State Policy subordinate to Fundamental Rights.

However, this judicial view about the status and fate of Directive Principles of State Policy underwent a change in [Mohd. Hanif Quareshi Vs State of Bihar, 1959 SCR 629; AIR 1958 SC 731]. The Supreme Court while discussing the conflict between Articles 48 and 19 (1)(g) of Constitution of India held that the prohibition of slaughter of cows and calves cannot held to be an unreasonable restriction upon the right conferred by Article 19 (1)(g) of Constitution of India, and it unequivocally opined that Fundamental Rights and Directive Principles of State Policy are to be tested on the touchstone of harmony, and as such both are supplementary and complimentary to each other.

The directives in Article 48 are quite specific and the State has an obligation to organize animal husbandry on 'modern and scientific lines' inasmuch as to preserve and improve the breeds and prohibit the slaughter of cows and calves and milch and draught cattle in order to protect the milch animals' progeny. Article 19 (1)(g) of the Constitution of India gives every citizen to practice any profession, or to carry on any occupation, trade or business subject to reasonable restrictions enjoined in clause (6) of Article 19 of the Constitution of India.

The Supreme Court while upholding the Utter Pardesh and Bihar States' Cow Slaughters Acts opined that these Acts have been enacted in pursuance to Article 48 of Constitution of India and as such the prohibition of slaughter of cows and calves cannot be held to be an unreasonable restriction upon the right conferred by Article 19 (1)(g)(6) of Constitution of India.

Therefore both the Articles, namely, Articles 19 and 48 of Constitution of India would be construed harmoniously and seen as supplementary and complimentary to each other and none is subservient to anyone. However, this view towards the status of Directive Principles of State Policy again underwent a complete change in [Keshavananda Bharati Vs State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225], wherein, the Supreme Court opined as under;
What is fundamental in the governance of the country cannot surely be less significant than what is fundamental in the life of the individual.

It discerns that Articles 12-35A (Fundamental Rights) and Articles 36-51 (Directive Principles of State Policy) are not mutually antagonizing but mutually harmonious, mutually reciprocal, mutually friendly and mutually complementary as well as supplementary to each other.

Justice K. K. Mathew in the same case observed that Fundamental Rights should give way to Directive Principles in building up a just social order and in building up a just social order it is sometimes imperative that the Fundamental Rights should be subordinate to Directive Principles of State Policy. However, in a subsequent case [Mohammed Ahmed Khan Vs Shah Bano Begum, AIR 1985 SC 945; (1985) 2 SCC 556], the Supreme Court went step forward by observing that the Constitution of India is founded on a bedrock of the balance between Part III and Part IV of Constitution of India and to give absolute primacy to one over the other is to disturb the harmony of the Constitution.

This opinion of the Supreme Court was regarding the interpretation of Article 44 (Uniform Civil Code for the Citizens) and Article 25 (Freedom of Religion). It discerns that Directive Principles of State Policy do not represent the temporary will of a majority, but represent the wisdom of the Nation expressed about permanent suprema lex of the country Bharat.

In [Paschim Bengal Khet Mazdoor Samiti Vs State of West Bengal, AIR 1996 SC 2426; (1996) 4 SCC 37] and [Koluthara Exports Ltd. Vs. State of Kerala, AIR 2002 SC 973; 2002 AIR SCW 677], the Supreme Court observed:
The Constitution envisages the establishment of a Welfare State at the federal level as well as State level. In a Welfare State, the primary duty of the Government is to secure the welfare of the people. At the same time, it is important to note that the competence of a Legislature to enact a law is to be adjudged with reference to the entries in the three legislative lists and not with reference to the Directive Principles, which cannot confer any legislative power to the legislature.

It may thus seem that Directive Principles of State Policy are only in the form, context and content of formulation of policies by the State through the instrumentality of law on the subjects enumerated in the entries of three lists of Schedule VII and they certainly do not confer any legislative power to the legislature. What is required from the legislature is to maintain a balanced approach between the policy and the law, which are fundamental in achieving the ends of justice.

In a path-breaking judgment in [Olga Tellis Vs Bombay Municipal Corporation, AIR 1986 SC 180; (1985) 3 SCC 545], the Supreme Court emphasized that the principles contained in Directive Principles of State Policy and particularly Articles 39 (a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of Fundamental Rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life under Article 21 of the Constitution of India.

In the background of the above, in [Bodhisattwa Gautam Vs Ms. Subhra Charaborty, AIR 1996 SC 922; 1996 AIR SCW 325], the Supreme Court has reiterated that the Directive Principles of State Policy have been raised by this Court from their static and unenforceable concept to a level as high as that of the Fundamental Rights.

Conceptual Framework of Fundamental Rights, Directives of State Policy - Jural Postulates - Correlative and Opposite

Fundamental Rights being basic human rights of all citizens encapsulate the fundamental obligations of the State to its citizens. The Directives of State Policy are moral obligations of the State in framing and passing laws based on policy perspectives or fundamental guidelines for good governance promoting fraternity, unity and integrity of India and human dignity. The conceptual framework of jural postulates has been a proprio vigore highlighted in I. R. Coelho Vs State of Tamil Naidu.

The Supreme Court emphasized that to destroy the guarantees given in Part III in order to purportedly achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure. Fundamental Rights occupy a unique place in the lives of civilized societies and have been described as 'transcendental', 'inalienable' and 'primordial'.

They constitute the arc of the Constitution of India. Parts III and IV of the Constitution of India together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution. The goals set out in Part IV of Constitution of India have, therefore, to be achieved without the abrogation of the means provided for by Part III of Constitution of India. It is in this sense that Part III and Part IV together constitute the core of Constitution of India and combine to form its conscience. Anything that destroys the balance between the two parts will ispo facto destroy the essential element of the basic structure of the Constitution.

Emergence of Importance of the Directive Principles of State Policy vis-a-vis Fundamental Rights

Though Kesavananda Bharati's case (supra) was popularly known for laying down the Basic Structure Doctrine, this landmark Judgment has played a vital role in recognising the importance of Directive Principles of State Policy. The earlier conflict between the Fundamental Rights and the Directive Principles and the concept of the supremacy of the Fundamental Rights qua the Directive Principles of State Policy has been watered down to a great extent in the Judgments of almost all the Judges, though their views were conflicting, insofar as the amending power of the Constitution was concerned.

The said Judgment recognised that both the Fundamental Rights and Directive Principles of State Policy are equally important and that there is no conflict amongst them. It recognises that they are supplementary to each other and they together are the conscience of the Constitution. It will be appropriate to refer to some of the observations made by Their Lordships of the Apex Court.

J. M. Shelat & A .N. Grover, JJ. Observed that:
Parts-III and IV which embody the Fundamental Rights and Directive Principles of State Policy have been described as the conscience of the Constitution. The Directive Principles of State Policy set forth the humanitarian socialist precepts that were the aims of the Indian social revolution. The Fundamental Rights and the Directive Principles were designed by the members of the Assembly to be the chief instruments in bringing about the great reforms of the social revolution. They have helped to bring the Indian society closer to the Constitution's goal of social, economic and political justice for all.

S. N. Hegde & A. K. Mukherjee, JJ., observed that:
The Directive Principles embodied in Part-IV of the Constitution or at any rate most of them are as important as the rights of individuals. The Fundamental Rights and the Directive Principles constitute the conscience' of our Constitution. The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all. The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution.

A. N. Ray, J., observed that:
The Directive Principles are also fundamental. They can be effective if they are to prevail over Fundamental Rights of a few in order to sub-serve the common good and not to allow economic system to result to the common detriment. Parts-III and IV of the Constitution touch each other and modify. They are not parallel to each other.

P. Jaganmohan Reddy, J., observed that:
What is implicit in the Constitution is that there is a duty on the Courts to interpret the Constitution and the laws, to further the Directive Principles which under Article 37, are fundamental in the governance of the country.

H. R. Khanna, J., observed that:
The Directive Principles embody a commitment which was imposed by the Constitution-makers on the State to bring about economic and social regeneration of the teeming millions who are steeped in poverty, ignorance and social backwardness. They incorporate a pledge to the coming generations of what the State would strive to usher in.

There should be no reluctance to abridge or regulate the fundamental right to property if it was felt necessary to do so for changing the economic structure and attain the objectives contained in the Directive Principles.

K. K. Mathew, J., observed that:
Therefore, the moral rights embodied in Part-IV of the Constitution are equally an essential feature of it, the only difference being that the moral rights embodied in Part-IV are not specifically enforceable as against the State by a citizen in a Court of law in case the State fails to implement its duty but, nevertheless, they are fundamental in the governance.

Y. V. Chandrachud, J., observed that:
Our decision of this vexed question must depend upon the postulate of our Constitution which aims at bringing about a synthesis between Fundamental Rights' and the Directive Principles of State Policy', by giving to the former a pride of place and to the latter a place of permanence. Together, not individually, they form the core of the Constitution. Together, not individually, they constitute its true conscience.

As discussed hereinabove in view of Article 31-C of the Constitution of India, certain laws which were enacted for taking further the mandate of Directive Principles as enshrined in the Articles 39 (b) and (c) were protected even if they violated the Fundamental Rights. By the Constitution (Forty-Second) Amendment Act, 1976, Article 31-C was further amended to expand the scope which was earlier restricted only to Article 39 (b) and (c), to include the entire Directive Principles. Similarly, an amendment was also sought to be made to Article 368 by insertion of Clause (4) which took away the power of judicial review. Clause (5) was also inserted to the said Article which provided that there shall be no limitation to the power of the Parliament to amend the Constitution.

The said amendment came for consideration before the Court in the case of [Minerva Mills Ltd. Vs. Union of India, (1980) 3 SCC 625], wherein, the said amendment was held to be invalid by a majority of 4: 1. However, while doing so, the said Judgment also emphasised the importance of Directive Principles of State Policy.

It will be relevant to refer to the observations made by Y. V. Chandrachud, J. speaking for majority that:
Parts-III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bedrock of the balance between Parts-III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between Fundamental Rights and Directive Principles is an essential feature of the basic structure of the Constitution.

It will also be relevant to refer to the observations made by Justice P. N. Bhagwati, who partly disagreed and held that though the amendment to Article 368 taking away the power of judicial review was invalid, the amendment to Article 31-C expanding the scope was valid.

I quote Justice P.N. Bhagwati:
The Directive principles of State Policy, therefore, impose an obligation on the State to take positive action for creating socio-economic conditions in which there will be an egalitarian social order with social and economic justice to all, so that individual liberty will become a cherished value and the dignity of the individual a living reality, not only for a few privileged persons but for the entire people of the country. It will thus be seen, that the Directive Principles enjoy a very high place in the constitutional scheme and it is only in the framework of the socio-economic structure envisaged in the Directive Principles that the Fundamental Rights are intended to operate, for it is only then they can become meaningful and significant for the millions of our poor and deprived people who do not have even the bare necessities of life and who are living below the poverty level.

The importance given to the Directive Principles by the Higher Judiciary of the Country could also be seen in the case of [Waman Rao Vs. Union of India, (1981) 2 SCC 362 : AIR 1981 SC 271: (1981) 2 SCR 1], wherein, the validity of Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1975 was challenged. Rejecting the challenge, Hon'ble Y. V. Chandrachud, C.J. states that:
In fact far from damaging the basic structure of the Constitution, laws passed truly and bona fide for giving effect to directive principles contained in clauses (b) and (c) of Article 39 will fortify that structure. We do hope that the Parliament will utilise to the maximum its potential to pass laws, genuinely and truly related to the principles contained in Clauses (b) and (c) of Article 39.

Conclusions
It is true that the hard realities of an underdeveloped country like India make it extremely difficult to implement the admitable social principles enumerated as Directives' in Part IV of the Constitution of India, but then, they should not be dismissed as mere pious hopes which the Government can never fulfil for generations to come. By implementing these Directive Principles, India is trying to achieve something that has never been attempted earlier in her history. By giving effect to these principles India is trying to provide, on however modest a scale, measures of social welfare regarded as essential by Western Nations in twentieth century, but within the frame work of an economy without resort to force or violence.

It is true that the Directives' in Part IV are transcendental in character and by their very nature are intact in their several imponderables. This is the reason as to why they are retained non-enforceable by Courts of Law. Nevertheless, they are made fundamental in the governance of the country and a duty is imposed on the State to apply these principles in making laws. If the State ignores these mandates, it in effect ignores the Constitution of India.

The fallacy of conflict between Fundamental rights and Directive Principles are seen through the Courts has been exploded on the ground that if the rights conferred by Part III are so fundamental for the life, liberty and security of the citizens, the directives contained Part IV are equally fundamental in the governance of the country and Article 37 makes it obligatory on the part of the State to apply these principles in making laws. Thus the provisions contained in either of these Parts are not designed to act as a barrier to progress but instead, both are intended to envisage a social order contemplated by the Preamble to the Constitution of India. They are, therefore, complementary and supplementary to each other.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
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