This article has been written by Meera Patel, a B.A. L.L.B student from the Maharaja Sayajirao University, Faculty of Law, Vadodara. This is an exhaustive article that covers everything you need to know about Article 46 and Article 47 of the Indian Constitution.
I has been published by Rachit Garg.
We come across terms such as reservations in schools/colleges, seats for the backward class students, Right to Education, quotas, etc. in our daily lives. These terms are a few constitutional provisions to uplift the people who belong to the scheduled castes, scheduled tribes, and other backward castes. Several provisions have been given out in the Constitution that helps the government promote and safeguard not only the interests but more importantly the rights of the scheduled castes and the scheduled tribes which will eventually help them tear out of the orthodox environment they were shoved in and join the national mainstream.
To understand Article 46 and Article 47 deeply, we must first understand the concept of Directive Principles of the State Policies.
The entire concept of the Directive Principles of the State Policies (DPSP) has been put down in our Constitutions after borrowing it from Article 45 of the Irish Constitution which was originally borrowed from the Spanish Constitution.
Out of the 25 Parts of our Constitution, Part VI of the Constitution deals with the DPSP. The Directive Principles of the State Policies in literal terms mean they are guidelines or principles that direct the state when it makes policies for the people of the country. These principles were created to make sure that there is socio-economic justice for everyone in the country so that everyone’s welfare is considered.
The phrase ‘We the people’ describes the fact that to become a citizen and to enjoy the rights of a citizen of a country, the citizens must take their responsibilities towards the state seriously because the rights and the responsibilities of a citizen are interwoven. The fundamental duties of the citizens are like moral responsibilities of all the citizens and these duties make sure that a spirit of patriotism is spread around the country so that a sense of unity is spread too. Fundamental rights and the DPSP are essential parts of the Constitution as they contain the fundamental obligation, duties, and rights of the citizens of the state.
Even though both of these provisions are vital to the Constitution and the fact that they go hand in hand, DPSP is considered a positive direction as they ensure socio-economic justice whereas the fundamental rights are considered negative as they are known to put constraints on the state.
The relationship between Fundamental Rights and Directive Principles of the State Policies is simple. A fundamental right is a right that is granted by the state to the citizens of India for their welfare, betterment, protection, etc. by the Constitution of India. These provisions are given to every individual regardless of caste, gender, sexuality, race, religion, place of birth, etc. These fundamental rights are also known as basic human rights for the citizens of the country.
On the contrary, the Directive Principles of the State Policies as mentioned above mean that they are mere guidelines that are provided to the states by the Constitution that can be used to frame the laws for the respective states. The difference between these provisions and fundamental rights is that the DSPS is not enforceable in courts. Similar to the Directive Principles of the State Policies, the Fundamental Duties are not enforceable by the courts as they are relative to the individual and not the entire nation.
Various Articles fall under the Directive Principles of State Policies. All these articles are classified under three types of principles. Listed below are the DPSP based on:
Article 38 of the Indian Constitution
Article 38 states that the State shall promote the welfare of the people by securing a tightly knit social order and the state shall strive to minimize all kinds of inequalities that may affect the status. Facilities and opportunities amongst every single citizen of the country.
Article 39 of the Indian Constitution
Article 39 states that the State shall direct these policies towards securing an adequate livelihood, equal distribution of resources to avoid concentration of wealth, rights of the laborers such as equal wages and protection of everyone regardless of their gender, caste, race, sexuality, age, etc.
Article 41 of the Indian Constitution
Article 41 states that the State shall provide the following rights to people in cases of old age, unemployment, disability, or sickness:
- Right to work
- Right to education
- Right to public assistance
Article 42 of the Indian Constitution
Article 42 states that the State shall make sure that the working conditions for all the laborers are human and maternity friendly.
Article 43 of the Indian Constitution
Article 43 states that the State shall strive to secure minimum wage as well as a proper standard of living for all workers.
Article 47 of the Indian Constitution
Article 47 states that the State shall make sure to raise the level of public health by paying attention to the lifestyle of the citizens especially on their level of nutrition and their standard of living which will as a result help improve the health of the citizens at large.
Article 40 of the Indian Constitution
Article 40 states that the State shall take steps to make sure that the citizens know what self-government systems to increase the organization of more village panchayats
Article 43 of the Indian Constitution
Article 43 states that the State shall strive to promote cottage industries, cooperative bases in rural areas to promote local business amongst the citizens.
Article 46 of the Indian Constitution
Article 46 states that the State shall religiously use its power to promote educational and economic interests of the weaker sections of the society which includes the people of the Scheduled Tribes as well as the Scheduled Castes
Article 47 of the Indian Constitution
Article 47 under the Gandhian principle states that the State shall try its best to improve public health and prohibit the consumption of intoxicating substances that are extremely dangerous to the human body.
Article 48 of the Indian Constitution
Article 48 states that the State will not allow anyone to slaughter cows, calves, or any other milch to improve their breeds.
Liberal and intellectual principles
Article 44 of the Indian Constitution
Article 44 states that the State shall secure a uniform civil code for the country.
Article 45 of the Indian Constitution
Article 45 states that the State shall make sure to provide proper early childcare support as well education for every child till they turn six.
Article 48 of the Indian Constitution
Article 48 under this principle states that the State shall strive towards organizing agriculture as well as animal husbandry to see progress based on modern scientific progress.
Article 49 of the Indian Constitution
Article 49 states that the State shall at any cost protect every monument/place which holds a historic or artistic significance.
Article 50 of the Indian Constitution
Article 50 states that the State shall take all the necessary steps to separate the judiciary from the executive in the context of the public services of the state.
Article 51 of the Indian Constitution
Article 51 states that the State shall strive towards achieving international peace and security and to achieve this goal, the state shall undertake the following responsibilities:
- Maintain proper and just relations with the nations
- Fulfill duties towards international laws and treaties
- Always encourage arbitration as a solution for international disputes
Constitutional Provisions for minorities
Before explaining Article 46 and article 47 in detail, one must know the following Constitutional provisions that have been helping the weaker sections of the society:
- Article 15 (1) and (2) protects the people from any discrimination against the citizens on the grounds of caste, sex, religion, etc.
- Article 16 (1) and (2) states that all citizens have the right to ‘equality of opportunities’ in the context of education and jobs at any institution which falls under the jurisdiction of the State. This article also states that discrimination when it comes to giving out educational and vocational opportunities shall not be entertained.
- Article 25(1) states that people of this country have the freedom of conscience and the right to freely practice and pursue any religion they want but at the same time, when one practices the religion of their choice, they must make sure their practices are subject to public order, morality and other Fundamental Rights.
- Article 26 is a fundamental right given out to the people of India states that people have the right to create and practice various religious denominations but again the practices must be within limits in order to secure the public order, morality and health.
- Article 28 is made to make sure that the state recognises people’s freedom to attend religious worship places present in educational institutions is maintained, recognised and aided by the State.
- Article 29(2) is a provision that makes sure that no educational institution which is maintained, recognised or aided by the state shall turn down people’s admission on the biases of their caste, race, sex, religion, etc.
- Article 30(1) states that all the people from the religious and linguistic minorities have the right to establish and administer educational institutions of their choice and will.
- Article 30(1A) provides State laws for mandatory acquisition of property of the minority’s educational institutions and it shall ensure that the compensation amount shall never determine, restrict or abrogate the rights guaranteed above..
- Article 30(2) states that the freedom of the educational institutes managed by the minorities shall face no discrimination in the context of recieving aid from the State whenever necessary.
Article 46 of the Indian Constitution
As per the definition given in the Constitution of India, Article 46 talks about the “promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitations.”
In simpler terms, this Article explains that the State is responsible to provide special attention in the context of educational as well as economic interests of the weaker sections of the society. The steps that shall be taken because of this provision if the Constitution shall help the people of the SC, ST, and OBC communities to seek justice and get rid of the social injustice and all the other forms of exploitations they have faced in the past years and which they still do.
Article 46 whose original draft was supposed to be known as Article 37 focuses on the educational and economic interests of the people who belong to the SC/ST and Other Backward Class communities and this draft article was discussed by the members of the Parliament on 23rd November 1948. While discussing the development of this article, the scope of the word “Scheduled Castes” became a topic of interest amongst the member of the parliament as a member pointed out that the term ‘Scheduled Castes’ must be replaced with the term ‘Backward Communities of any class and Religion’ while keeping the fact that the definition of the ‘Scheduled Castes is quite restrictive and it does not cover various backward class communities belonging to the Sikh, Ramdasies, Balmiki, Odes and Chamars religion. Even though the point made sense at that time, other members of the Parliament rebutted that the amendment was uncalled for at that moment as that could be discussed at a later stage therefore, the Assembly adopted Article 46 on 23rd November 1984 without any amendments.
The entire concept of reservations is based on this Article. The second word for reservations as people like to call it is ‘preferential treatment’ which has now become a dispute for many citizens as people from the general category have now started to feel neglected. The motive behind this concept was to again secure socio-economic justice for the downtrodden and vulnerable sections of the society. People from these communities were not only denied access to resources, religious places but they were denied access to fundamental rights such as education, sanitation, jobs, etc and that is why the concept of reservations was introduced by the Constitutent Assembly so that the citizens of the country can see equality prevail amongst everyone. As a result, the policy of ‘preferential treatment for the weaker sections of the society was adopted.
Case laws related to Article 46 of the Indian Constitution
In the case, State of Madras v. Smt. Champakaran Dorairajan (1951), the State of Madras reserved seats for the weaker sections of the society as per the numerical strength for the admission into all the government-based medical and engineering colleges but it was challenged as unconstitutional. The government defended its actions using Article 46 of the Constitution which was created so that the states can help the people of the weaker sections secure education and jobs without discrimination but this decision was struck down as it violates the fundamental right (Article 15) that guarantees equality. The Apex Court also stated that the Directive Principles of the State Policies cannot overrule the fundamental rights.
In the case of Indira Sawhney v. Union of India (1992), the Apex Court stated that the reservation limit is up to 50% of total seats for the backward classes and shall not exceed that. This case is famously known as the Mandal case. The interesting thing about this case is that even though it was decided that 50% is the limit, in 2019 as per the 103rd Amendment to the DSPS, the Honorable Supreme Court stated until now the sole criteria that will be considered to make reservations would be social and educational backwardness but now after the Amendment, the economically weaker sections of the society will also be allowed to access these reservations and thus the limit was pushed up to 60% of the total seats. The Supreme Court looked into the case and examined this case from various aspects. They reviewed the reservation system under Article 15(4), 16(4) and 340 of the Indian Constitution. The Supreme Court stated that the concept of reservations is not about not letting meritorious students in the background. The whole point is to make our society more egalitarian. There are various positions which are meant for students with merits therefore it cannot be said that the concept of reservations is anti merit.
To keep everyone’s interests in mind, there was an Amendment made where ‘Clause 4’ was added to Article 15 which stated that the governments are now allowed to create special reservations/ provisions that will help uplift the weaker sections of the society economically as well as education-wise. After this Amendment, the government started to make reservations in educational institutes by invoking the aforementioned clause.
The Apex Court in the case T.M Pai Foundation v. the Union of India (2002) stated that the government cannot interfere with the administration of private educational institutes and thus the government cannot make reservations in private institutions. Once again, this petition was countered in the court in 2005 in the case P.A Inamdar v. State of Maharashtra (2005). In this case, the Parliament added Clause 5 to Article 15 by the 93rd Amendment. This Amendment enabled the government to allow the reservation of seats even in private educational institutes even though they are aided by the government or not. This was a milestone that was achieved by India and the validity of this Amendment was proven in the case Ashok Kumar Thakur v. the Union of India (2008).
Controversies related to Article 46 of the Indian Constitution
Even though the policy of reservations was created to ensure social justice for every citizen of this country, the general public has a very distinctive opinion for the same. Yes, ten years ago this policy was really necessary but now the status of the minorities is a little different. With time, the policies need to change but as it is not, it has been brewing frustration and angst among the citizens as they are being deprived of educational or vocational opportunities that they might get on the basis of their merit but don’t due to the reservation policies.
Many have criticized the reservation system by stating that not only are these reservations showing bias, they have also become the source of relief for the minorities. Many now feel that the minor communities now depend on these reservations rather than to work harder for their merit. The entire concept of reservations was to spread the knowledge of equality but these policies surpass the purpose. Special privileges, additional protection, etc for weaker sections of the society violates the spirit of democracy.
Discrediting the merit system laid down by learned people, the quality is compromised when employers, educational institutions are forced to make an appointment on the basis of the caste and not the merit. Not only that but this policy has motivated the rise of the politics of casticm on our political system. Therefore, reservations are what people call ‘reverse casticm’ these days.
Article 47 of the Indian Constitution
As per the definition given in the Constitution of India, Article 47 talks about, “Duty of the State to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”
In simpler terms, this article posed an obligation on the state to make it their responsibility to provide proper healthcare by raising the level of nutrition and the standard and making improving the level of public health as it should be their primary duty looking at the mortality rate in India once faced. A lot has changed and the mortality rate of the citizens has been dipping ever since.
The draft of Article 47 was Article 38 which was under debate in 1948. Other than the primary purpose of this article, it was also discussed that consumption of intoxicating drugs, substances, and drinks is also injurious to health therefore the state shall strive towards prohibiting all these substances except if used for medicinal purposes. These factors were constituted in Article 47 to make sure a society that strives towards its betterment is seen by the coming generations. This Article was constituted while keeping in mind various factors such as betterment of aged people, maternity benefits, proper working conditions, etc.
Various social development programs have been introduced by the government such as the National Health Mission, Mid Day Meals Schemes, etc., which are specifically made for women, children, and the weaker sections of the society and this has been adopted by the DPSP. These programs are not just used to help improve the health and the standard of living of the citizens but are also used as an incentive to promote schools and education in the weaker sections of society.
The main purpose of this article is to improve public health and this depends on the fact that the right to health is considered a fundamental right and a healthy lifestyle is an integral part of life. When we say the standard of living, it means that the state shall pay attention to some really serious issues and work towards creating concrete rules that will eradicate the issues such as child labor, poverty, better and try to bring about a change that makes this society safer for everyone.
Standard of living
A good standard of living constitutes the right to food that is enshrined under Article 21 which is eventually fulfilled under Article 47 of the Indian constitution. The government strives towards making sure that there is enough food in the country for everyone and to make sure that happens, the state is advised to set up food regulators so the standard of living can be monitored.
Most liquor bans are justified using Article 47 only. The topic that is still the center of attention that is related to this Article is whether the government should ban intoxicating substances, drugs, and alcohol completely or not. The Supreme Court has not given a clear answer as the Court is still not clear where the law stands in the context of liquor trade being a Fundamental Right. The entire State is debating whether liquor should be banned or not. For example, In the year 2016, Bihar’s government passed a ban on liquor, and the entire state wasn’t allowed to consume or own liquor. Four days later, in the case Shailesh Kumar Sinha v. the State of Bihar (2016) the Patna High Court unanimously passed out an order which lifted the liquor ban in Bihar. One of the judges on the Bench argued that access to liquor was only up to the government and not the courts as he was referring to Article 47 of the Directive Principles of the State Policies. By imposing a liquor ban, the State justifies that they are just abiding by Article 47 of the Indian Constitution.
The DSPS deals with the state’s duties to raise the standard of living and that is why while talking about banning alcohol, they also mentioned that the state must endeavor to bring a ban on intoxicating substances, drugs, and alcohol except for medicinal purposes.
Case laws related to Article 47 of the Indian Constitution
Vincent Panikurlangara v. Union of India (1987) is a landmark case in which the Apex Court opined that public health should be considered as the higher priority of the state as it is the main factor that will be held responsible for the betterment and growth of the society which will eventually help in building the nation.
As per the case State of Punjab v. Ram Lubhaya (1998) it has been highlighted that since the right of one person is interwoven with the duty of another citizen, the right to health is directly related to the duty that the state owes to its citizens. Similarly, in the case of Ratlam Municipal Corporation v. Vardichand (1980), it has been stated that the state is under an obligation to make sure that the standard of living of the people is hygienic. This gives the public the power to point out any authoritative figure/ government if the people of the country are deprived of any resources that deprive them of public sanitation or if it injures the living conditions of any community.
In the Ugar Sugar Works Ltd. v. Delhi Administration and Others (2001), the three-judge bench of the Apex Court of India discarded all the arguments related to the argument demanding the ‘fundamental right to liquor’. With all its powers, the bench held that there is no fundamental right that will support the trading of intoxicating substances such as alcohol. This case was cited in various other cases with facts on the same lines such as State of Bombay v. F.N Balsara (1951), Khoday Distilleries Ltd. State of Karnataka (1994), etc.
Article 47 is considered ambiguous
In the case State of Tamil Nadu v. K. Balu (2017), the Honorable Supreme Court gave out a judgment where it issued a country-wide ban of liquor on the state and the national highways for ‘500 meters’. This judgment immediately faced criticism as the public stated that this is another issue of judicial overreach and that Article 47 is a Directive Principle so the citizens felt that this ban was not fair is directive principles are applied upon the discretion of the current government therefore the Supreme Court had to eventually modify the issued notice because of the resistance. Plus there is a whole industry that depends on manufacturing, sales, and production of liquor which were affected in the process. The modification by the Supreme Court stated that now the ban was only limited to ‘220 meters’ and more important states such as Sikkim, Himachal Pradesh, Meghalaya where the population is limited to or less than 20,000 were spared from this ban.
As per the above modification of the notice, it is clear that the power to use the DSPS is upon the state therefore when the Supreme Court passed the order, it was exercising the powers that broke the spirit of Separation of Powers and that is the reason why it struck a nerve amongst the public. They started to call a judicial overreach and various jurists started to call out Article 47. People started to call this Article unconstitutional as it was violating the Right to liberty and thus, people started to consider it ambiguous.
Another reason why the question of banning intoxicating substances, drugs, and alcohol is still in the air is that the drugs can be injurious and beneficial at the same time. The keyword here is dosage. The thin line between benefits and injury is the amount of dosage and the frequency. The opposition to the liquor ban policy argues that this is the exact reason why there is still ambiguity in the air. The common misconception prevails that liquor is injurious to health. Thus, the ambiguity continues.
The fundamental rights, duties, and the Directive Principles of the State Policies are known to be the two sides of the same coin. The reason behind this saying is that even though they are related and have their differences, they serve a single purpose that is the interest of the citizen.
To sum up, the main point that ties Article 46 together is that these provisions are mere enabling provisions and the government is not under any obligation to provide any reservations to the society. Even though the question related to banning alcohol all over India lingers over our heads, it still can not change the fact that the state has given no Indian citizen the fundamental right to consume and trade liquor. Fundamental is the keyword here. Only the state governments of the respective states have the upper hand over the monopoly of the liquor markets in India. It is known to be one of the highest revenue-generating industries of the country and thus, one of the most necessary evils of the country too.
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