BY- ANANYA KUNDU (HERITAGE LAW COLLEGE)
NON- JUSTICIABLE RIGHTS: A BOON TO THE SOCIETY?
The Directive Principles of State Policy contained in Part IV of the Constitution has been in prevalence since India’s independence. The motto was to achieve a welfare state by implementing a high sense of moral duty. However the non-justiciable nature of the Directive Principles has been a point of argument in the legal system. Directive Principles are non-justiciable, which means that they are non-enforceable in the court of law.
Meaning
Part IV of the Constitution contains Directive Principles of State Policy. These ideals or principles throw light on the remarkable blend of humanitarian, socialist percept, Gandhian ideals and democratic socialism. Regardless of being non-justiciable, they include the basic principles of governance. These principles show directions to the legislative and executive wings of the government which are in turn referred while formulating laws and policies. This feature was borrowed from the Irish Constitution. The framers of our Constitution on being influenced by the Irish Constitution incorporated a whole chapter on Directive Principles of State Policy under Part IV of the Constitution. The Irish people, however originally borrowed them from the Constitution of Republican Spain which was the first one to incorporate such principles. The Directive Principles lay down few economic and social policies that are to be followed by the State Governments in India. Certain obligations are imposed by them on the State in order to promote the welfare of the people and achieve economic democracy by taking positive action in certain subjects.
Classification
The Directive Principles of State Policy are contained in Part IV, Article 36 to Article 51 of the Constitution. The Directive Principles are however not solemnly classified by the Constitution, but for better understanding, they have been classified into three categories on the basis of content and direction. They are as follows:
· Socialist Principles
· Gandhian Principles
· Liberal-Intellectual Principles
Apart from that, there are Articles 36 and 37, which define the word “State”; and provide application of the Principles, respectively.
Socialist Principles
These principles emphasize the ideology of socialism and lay down the framework of a democratic socialist state. The concept focuses in providing social and economic justice to all for achieving optimum norms of welfare state. They direct the state through Articles 38, 39, 39A, 41, 42, 43, 43A, 47.
· Article 38: It authorizes the state to secure a social order for the welfare of the people.
· Article 39: It provides certain principles that are to be followed by the state to secure the rights of citizens such as the right to adequate means of livelihood, equal pay for equal work, opportunities for the healthy development of children.
· Article 39A: It promotes equal justice and free legal aid to the poor.
· Article 41: It secures citizens in cases of unemployment, old age, sickness and disablement: the right to work, the right to education, and the right to public assistance.
· Article 42: It makes provision for just and humane conditions of work and maternity relief
· Article 43: It secures a living wage, a good standard of living and other socio and cultural conditions for workers.
· Article 43A: It takes steps to secure the participation of workers in the management of industries.
· Article 47: It raises the level of nutrition, the standard of living and improves public health.
Gandhian Principles
These principles reflect the ideologies of restoration proclaimed by Gandhiji during the national movement. They direct the state through Articles 40, 43, 43B, 46, 47, and 48.
· Article 40: It organises village panchayats and vest necessary powers and authority to enable them to work as self-government.
· Article 43: It promotes cottage industries in rural areas on individual or co-operational basis.
· Article 43B: It promotes voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.
· Article 46: It promotes the educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections of the society to protect them from social injustice and exploitation.
· Article 47: It prohibits the consumption of intoxicating drinks and drugs which are injurious to health.
· Article 48: It prohibits the slaughter of cows, calves and milch and draught cattle to improve their breed.
Liberal-Intellectual Principles
These principles emphasize on the ideology of Liberalism and are directed by Articles 44, 45, 48, 48A, 49, 50 and 51.
· Article 44: It secures a uniform civil code for all citizens throughout the country.
· Article 45: It has a provision to provide an early childhood care and education for children until they are 6 years of age.
· Article 48: It has a provision to organise agricultural and animal husbandry on scientific guidelines.
· Article 48A: It protects and improves the environment by safeguarding forests and wildlife.
· Article 49: It has a provision to protect monuments and places of national importance
· Article 50: It separates the judiciary from the executive in the public services of the State.
· Article 51: It promotes international peace and security.
Among the above mentioned Articles; the 42nd Amendment Act, 1976 added Article 39, Article 39A, Article 43A and Article 48A; the 44th Amendment Act, 1978 added Article 38 and the 97th Amendment Act, 2011 added Article 43B.
Also, the subject matter of Article 45 was changed by the 86th Amendment Act, 2002 and elementary education was made a fundamental right under Article 21A. The amended principle makes it obligatory and compulsory for the state to provide early education and childhood care to the children until they complete the age of 6 years.
Significance
The Directive Principles are a code of conduct for the legislation and administration of the country. The underlying object behind the Directive Principles is to show directions to the legislative and executive section of the Government, for them to refer to these ideals while formulating laws and policies. Their aim is to lay down certain social, economic and political ideals that suit every condition prevailing in India. As generously put by Sri G.N Joshi, he defined Directive Principles as “they constitute a very comprehensive political, social and economic programme for a modern democratic State.”
Role in the Constitution
Echo of the Preamble
The Preamble of the Constitution is called key to mind of the makers of the Constitution. It is a reflection of the ideals of the leaders of our country. The ideals behind the Preamble of the Constitution of India were originally laid down by Jawaharlal Nehru’s Objective Resolution, which was later adopted by the Constituent Assembly on January 22, 1947.
The Preamble lays down the purposes that our Constitution aims to achieve. However, the Directive Principles are referred as the core of the Constitution. They lay down the guidelines for the state that are to be implemented to achieve the ideals of a welfare state and are a mirror image to the overall objectives laid down in the Preamble of the Constitution. The Directive Principles sought to achieve the expression, as mentioned in the Preamble, “justice, and social, economical, political”. The Directive Principles are envisaged to attain the fundamental ideals of the Preamble, that is, Justice, Liberty, Equality, Fraternity. Besides, it also incorporates the idea of a welfare state that was once India deprived of, during colonial rule.
Bond with Fundamental Rights
The Constituent Assembly split up the rights of the citizens into two categories: Justiciable and Non-Justiciable. The justiciable rights were included in Part III of the Constitution and the non-justiciable rights are contained in Part IV of the Constitution. The Directive Principles differ from the fundamental rights on the grounds that Fundamental Rights are justiciable and Directive Principles are non-justiciable i.e., Directive Principles cannot be enforced in the court of law. However, Article 37 of the Constitution makes it clear that, though expressly made non-justiciable, but they are fundamental in the governance of the country and it shall be the duty of the State to apply these principles which formulating laws and policies. On the other hand, according to Article 32 of the Constitution, Fundamental Rights are enforceable in the court of law and the courts have authority to declare any law or policy as void if it is inconsistent or violates the Fundamental Rights. However, Directive Principles are not enforceable and the courts cannot declare any law or policy as void which is otherwise valid but inconsistent with the Directive Principles. This was viewed in the case State of Madras v. Champakam Dorairajan. Here the Apex Court observed that the Directive Principles of State Policy, which according to Article 37 are made expressly unenforceable, cannot overrule the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate writs, orders or directions by Article 32 of the Constitution.
In the case of Ashoka Smokeless Coal India (P) Ltd. v. Union of India, it was observed that Directive Principles provide guidance for the interpretation of fundamental rights as also the statutory rights. Apart from that, the Supreme Court of India has given Directive Principles, the status of fundamental rights in many cases. In the case of Umakrishnan v. State of A.P., the directive principle in Article 45 has been given the status of a fundamental right. In this case, it was held that children in the age group of 6 to 14 years have the fundamental right to free and compulsory education. Correspondingly, the directive “equal pay for equal work” contained in Article 39 has been held to be a fundamental right in Randhir Singh v. Union of India enforceable by the courts. Also, the directives ‘legal aid’ and ‘speedy trial’ were considered fundamental rights under Article 21 in, M. H. Hoskot v. State of Maharashtra, which are available to all prisoners and thus can be enforced.
The Directive Principles of State Policy are precursor of the UNO Convention of Right to Development as inviolable human right and every person shall be entitled to participate in, contribute to, and enjoy economic, social, cultural and political development in which all human rights, fundamental freedom would be fully realised.
Role in our life
It was observed by the drafting committee that in a country like India, political democracy would be of no use in the absence of social and economic democracy. As a result, they embodied few provisions to uplift the socio-economic conditions of the masses. There was a time when it was thought that the State is mainly concerned with maintaining law and order and gives protection of life, liberty and property to the subject. But in contemporary era, the State is not restricted to such a role. It lives in the era of Welfare State which focuses on promoting the prosperity and well-being of the people. The Directive Principles aim at promoting the notion of a welfare state by laying down certain economic and social policies to be pursued by various Governments in India. They promote the welfare of the people and achieve economic democracy by imposing obligations on the State to take positive action in certain directions. To achieve the ideals of Welfare State, Directive Principles are implemented through various laws and enactment including,
· Nationalization of Bank and industries
· Welfare schemes for weaker sections
· Land Reforms Act
· Compulsory education for children
· Environmental safeguards
· Panchayati Raj system
· Equal Remuneration Act
The Indian Constitution has been consecutively amended to alter those fundamental rights whose existence was acting as a hindrance in effecting economic and social reforms which are incorporated by the directive principles. The unremarkable implementation of the directive principles is mainly on the account of resource crisis, absence of political will or anticipation. Education, improvement of the condition of backward classes and poverty eradication are few of the cases where these principles failed to show results.
The State is manifesting extraordinary results to implement the directive principles, in spite of their dissatisfactory execution. For instance, in electoral politics, Government with immunity may not ignore welfare-aimed policies such as public health, economic equality, and education, provision for women, children, and backward classes.
The directive contained in Article 39(b) had a positive impact on legislation to fix land ceilings, abolition of Zamindari system, abolition of bequeathed landowners, etc., and gave ownership authority to the tillers of land. The enactment of Hindu Marriage Act (1955) and the Hindu Succession Act (1950) have also contributed to the implementation of the directives of Uniform Civil Code.
Article 40 contained in Part IV of the Constitution, pronounces that the State shall take necessary actions to organise village Panchayat and vest powers and authority in them in order to function as units of self-Government. The 73rd Amendment thus came into force on 24.04.1993 to give effect to Article 40.
The Directive Principle in Article 45 has the provision of providing free and compulsory education to all children up to the age of 14 years, which was made within 10 years of declaration of the Constitution but this goal was not achieved by the nation even 50 years after the provision was embraced. Ultimately, the enactment of National Policy of Education (NPE) gave momentum to the provision of Article 45.
Ultimate Superiority
There has always been an irresolute crunch in deciding the dominance of Directive Principles over Fundamental Rights. During the initial sixteen years of functioning of the Constitution, the Fundamental Rights were given the supremacy over the Directive Principles. There were cases where the courts ripped down the directive principles on the grounds that they violated the fundamental rights. The root cause of such supremacy was the enforceability of the Fundamental Rights.
In State of Madras v. Champakam Dorairajan, the Supreme Court declared that any law would be declared void if inconsistent with the Fundamental Rights, but this was not the same with the Directive Principles.
However, the Government tried to rectify this mistake by amending the Constitution to give importance to Directive Principles. The Government brought the 24th Amendment Act into force, which gave Parliament the right to amend Fundamental Rights, to overcome the limitation imposed that Fundamental Rights cannot be curtailed to implement Directive Principles, by the Golaknath Case in 1971.
In Keshavnanda Bharati v. State of Kerala, the Apex Court gave superiority to the Directive Principles. Finally, in Minerva Mills v. Union of India, the court applied the doctrine of harmonious construction as neither of them has supremacy over each other. Rather, both of them are complementary to each other and both should be equally balanced.
Conclusion
With the abstract idea put forward, a conclusion can be derived that, Directive Principles of State Policy serve as a guide to the functioning of the Government. They are a boon to the society for not only directing the Government for better performance, but also working as a mentor for the betterment of mankind. Thus, they cannot be rendered useless merely for non-enforceability, for they hold equal significance as the Fundamental Rights and any other provision.
References
1. Dr. J. N. Pandey, “Constitutional Law of India”, Chapter 18
2. Srinivas Katkuri, “Role of directive principles towards welfare of the state and social development in India”, retrieved from www.lawjournals.org, Volume 4; Issue 1; January 2018; Pg no. 56-60
3. Lokesh Vyas, “Directive Principles of State Policy (DPSP) under the Indian Constitution”, retrieved from www.blog.ipleaders.in.
4. Hemant Singh, “Directive Principles of State Policy (DSDP)- Concepts and Features”, retrieved from www.jagranjosh.com
5. Amit Bhardwaj, “In-depth understanding of the Directive Principles of State Policy”, retrieved from www.civilsdaily.in
6. Lovely@tokas, “Directive Principles of State Policy (DPSP)”, retrieved from www.legalserviceindia.com
7. State of Madras v. Champakam Dorairajan AIR 1951 SCC 228
8. Ashoka Smokeless Coal India (P) Ltd. v. Union of India (2007) 2 SCC 640
9. Umakrishnan v. State of A.P. (1993) 1 SCC 645
10. Randhir Singh v. Union of India AIR 1982 SC 879
11. M. H. Hoskot v. State of Maharashtra AIR 1978 SC 1548
12. I. C. Golaknath & Ors. v. State of Punjab & Anrs. (1967) AIR 1643 SCR (2) 762
13. Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. AIR 1973 SC 1461
14. Minerva Mills v. Union of India AIR 1980 SC 1789
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