The article is written by Lokesh Vyas, pursuing law from Institute of Law Nirma University. The article discusses the concept of Directive Principles of State Policy and its relevance and implementation in the current legal scenario. The article tries to answer that whether Non-Justiciability hampers the implementation.
Directive principles of state policy (DPSP) have been in vogue since India got independence. Its contravention with the Fundamental Rights (FR) has been the point of contention in the courts. The non-justiciability of DPSPs has always been a moot point in India legal system. DPSPs are the non-justiciable part of the Constitution which suggests that a person cannot enforce them in the Court.
DPSPs: Its Genesis, and its Meaning
The Concept of DPSP is not an indigenous one. Our Constitution makers borrowed this concept from Irish Constitution (Article 45), it has its genesis in Spanish Constitution. Part IV of the Constitution of India deals with Directive Principles of State Policies. To understand the meaning of the directive principle of state policy, we need to understand the meaning of each word i.e. Directive + principle + state + policy which suggest that these are the principles that direct the state when it makes policies for its people. These DPSPs act as a guideline for the state and are needed to be taken into consideration while coming up with any new law but a citizen cannot compel the state to follow DPSPs.
List of DPSPs under Indian Constitution
|Article Number||What it says|
|Article 36||Defines State as same as Article 12 unless the context otherwise defines.|
|Article 37||Application of the Principles contained in this part.|
|Article 38||It authorizes the state to secure a social order for the promotion of the welfare of people.|
|Article 39||Certain principles of policies to be followed by the state.|
|Article 39A||Equal justice and free legal aid.|
|Article 40||Organization of village panchayats.|
|Article 41||Right to work, to education and to public assistance in certain cases.|
|Article 42||Provision for just and humane conditions of work and maternity leaves.|
|Article 43||Living wage etc. for workers.|
|Article 43-A||Participation of workers in management of industries.|
|Article 43-B||Promotion of cooperative societies.|
|Article 44||Uniform civil code for the citizens.|
|Article 45||Provision for early childhood care and education to children below the age of six years.|
|Article 46||Promotion of education and economic interests of SC, ST, and other weaker sections.|
|Article 47||Duty of the state to raise the level of nutrition and the standard of living and to improve public health.|
|Article 48||Organization of agriculture and animal husbandry.|
|Article 48-A||Protection and improvement of environment and safeguarding of forests and wildlife.|
|Article 49||Protection of monuments and places and objects of national importance.|
|Article 50||Separation of judiciary from the executive.|
|Article 51||Promotion of international peace and security.|
Reflection of Preamble
The Preamble of the Constitution is called the key to the mind of the drafters of the Constitution. It lays down the objectives that our Constitution seeks to achieve. Many scholars believe that DPSPs is the kernel of the Constitution. The Directive Principles of the State Policy (DPSPs) lay down the guidelines for the state and are reflections of the overall objectives laid down in the Preamble of Constitution. The expression “Justice- social, economic, political” is sought to be achieved through DPSPs. DPSPs are incorporated to attain the ultimate ideals of preamble i.e. Justice, Liberty, Equality and fraternity. Moreover, it also embodies the idea of the welfare state which India was deprived of under colonial rule.
DPSPs and its Intricacies
Constitution Drafters divided rights of the citizen into two parts i.e., Justiciable and Non Justiciable part. Part III of the Constitution was made Justiciable and the non-justiciable part was added in Part IV (Article 36 to Article 51) of the Indian Constitution. This part is called the Directive Principles of State Policy.
DPSPs are positive obligations on the state. DPSPs were not made justiciable because India did not have sufficient financial resources. Moreover, its backwardness and diversity were also a hindrance in implementing these principles at that time. At the time of the drafting of the Constitution, India was a newly born independent state and was struggling with other issues and making DPSPs justiciable would have put India in great difficulty.
Article 37 defines the nature of DPSP. It states that DPSPs are not enforceable in the courts but at the same time, it defines DPSPs as a duty of the state. Moreover, the same Article defines DPSPs as principles that are fundamental to the governance of any country. It shows the relevance and significance of DPSPs in the constitution and in the governance of a country.
Enforceability of DPSPs
Many times the question arises that whether an individual can sue the state government or the central government for not following the directive principles enumerated in Part IV. The answer to this question is in negative. The reason for the same lies in Article 37 which states that:
“The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”
Therefore by the virtue of this Article no provision of this part can be made enforceable in the court of law thus these principles cannot be used against the central government or the state government. This non-justiciability of DPSPs make the state government or the central government immune from any action against them for not following these directives.
Another question arises that whether Supreme Court or High Court can issue the writ of mandamus if the state does not follow the directive principles. The literal meaning of mandamus is “to command.” It is a writ which is issued to any person or authority who has been prescribed a duty by the law.This writ compels the authority to do its duty.
The Writ of mandamus is generally issued in two situations. One is when a person files writ petition or when the Court issues it suo moto i.e. own motion. As per Constitutional Principles, a Court is not authorized to issue the writ of mandamus to the state when the Directive Principles are not followed because the Directive Principle is a yardstick in the hand of people to check the performance of government and not available for the courts. But the Court can take suo moto action when the matter is of utmost public importance and affect the large interest of the public.
Fundamental Rights are the legal obligation of the state to respect, whereas the DPSPs is the moral obligation of the state to follow. Article 38 lay down the broad ideals which a state should strive to achieve. Many of these Directive Principles have become enforceable by becoming a law. Some of the DPSPs have widened the scope of Fundamental Rights.
DPSPs and Fundamental Rights
The compatibility between Fundamental Rights and DPSPs have always been contentious. The applicability of both the concepts need to be understood because if the Constitution is a coin then Fundamental Rights and DPSPs are two facades of that coin.
On the one hand Part III i.e. Fundamental Rights limit the power of government and restrains the state from making any law which contravenes the interests of its people, on the other hand, Part IV helps the state in making a law which harmonizes the interest of its people. Both Fundamental rights and Directive Principles of State Policy hold equal relevance and significance in the current legal scenario and cannot overlook each other. Many people argue that DPSPs are useless because of its non-justiciability but we need to understand that these are not only the guiding principles but also lay down the broad objectives and ideals that India strives to achieve.
The question that whether Fundamental Rights precedes DPSPs or latter takes precedence over former has been the subject of debate for years. There are judicial pronouncements which settle this dispute.
of Madras vs Champakan (AIR 1951 SC 226) (see here), the Apex Court was of the view that if a law contravenes a Fundamental right, it would be void but the same is not with the DPSPs. It shows that Fundamental rights are on a higher pedestal than DPSPs.
In Kerala Education Bill (1957) (1959 1 SCR 995) (see here) Court said that in case of conflict between Fundamental Right and DPSPs, the principle of harmonious construction should be applied. But still after applying the doctrines of interpretation, there is a conflict between fundamental right and DPSPs, then the former should be upheld.
In Venkataraman v. State of Madras (1966 AIR 1089) (see here), Court gave precedence to Fundamental rights over DPSPs.
In I. C. Golaknath & Ors vs State Of Punjab & Anr. (1967 AIR 1643), (see here) The Court was of the view that Fundamental rights cannot be curtailed by the law made by the parliament. In furtherance of the same the Court also said that if a law is made to give effect to Article 39(b) and Article 39(c) which come under the purview of DPSPs and in the process the law violates Article 14, Article 19 or Article 31, the law cannot be declared as unconstitutional and void merely on the ground of said contravention.
The 42nd Constitution Amendment widened the scope of Article 31C to cover all the directive principles laid down in the Constitution. Prior to the Amendment Article 31C saved only those laws which gave effect to the Directive Principles of State Policy specified in Article 39(b) and 39(c).
In Keshavnanda Bharati vs the State of Kerala (1973) 4 SCC 225), (see here) The Apex Court placed DPSPs on the higher pedestal than Fundamental Rights. Ultimately in the case of Minerva Mills vs Union of India (AIR 1980 SC 1789) (see here), the question before the court was whether the directive principles of State policy enshrined in Art IV can have primacy over the fundamental rights conferred by Part III of the Constitution. The court held that the doctrine of harmonious construction should be applied because neither of the two has precedence to each other. Both are complementary therefore they are needed to be balanced.
In Unnikrishnan vs State of Andhra Pradesh (1993 SCC (1) 645) (see here) The Court was of the view that Fundamental Rights and Directive Principles are not exclusive to each other therefore they should not be read in exclusion. Moreover, the Court said that the Fundamental Rights are the means through which the goals enumerated in Part IV are achieved.
DPSPs and Amendments
For amending the Directive Principles of State Policies, the Constitutional amendment is required. It has to be passed by the special majority of both the houses of the Parliament. Post-independence there have been number of amendments to the constitution and some of them are pertaining to DPSPs.
Beginning with the 42nd Constitutional Amendment 1976, it made four changes in DPSPs. Firstly, it amended Article 39 which obligates the state to secure a social order for the promotion of the welfare of the people. Moreover, it added Article 39-A which makes it the duty of the state to provide for equal justice and free legal aid. By the virtue of this Article, Parliament came up with the law called the Legal Services Authorities Act, 1987. It also added Article 48A which deals with the protection and improvement of environments. The Water Pollution, Air Pollution, Environmental Pollution Acts, The Forest Act etc demonstrate the application of the principles laid down in Article 48A.
44th Constitutional Amendment, 1978 added Article 38 clause (2) which directs the state to minimize inequalities in income, 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.
73rd Constitutional Amendment, 1992 which brought Panchayats in Part IX of the Constitution had its genesis in Article 40 of the constitution. It deals with the Organization of village Panchayats.
86th Constitutional Amendment, 2002 inserted Article 21-A in the Constitution of India. It provides Right to free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right. The roots of this amendment are in Article 41 which talks about Right to work, to education and to public assistance in certain cases.
97th Constitutional Amendment 2011 added Article 43-B it authorizes the state to promote voluntary formation, autonomous functioning, democratic control and professional management of the co-operative societies.
DPSP and its Implementation
Although the implementation of the principles laid down in Part IV are not directly visible yet there are a plethora of laws and government policies which reflect the application of the principle of Part IV. In the Judicial History of India, many laws and legal provisions were created by judicial reasoning. In such cases, DPSPs played a very vital role and the courts took the directive principles into consideration very cautiously.
Policies like Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) get their authority from Article 39(a) which talks about the right to adequate means of livelihood. Laws such as the Child Labour (Prohibition and Regulation) Act 1986 bolster the canons of Article 39(g) which deals with the protection of children.
Laws pertaining to prohibition of slaughter of cows and bullocks get their sanctity from Article 48 which deals with the organization of agriculture and husbandry. Laws such as Workmen Compensation Act, Minimum Wages Act, Industrial Employment (Standing Orders) Act, The Factories Act, Maternity Benefit Act depict the implementation of Article 41, Article 42 and Article 43A.
Government Policies such as Integrated Rural Development Program (IRDP), Integrated Tribal Development Program (ITDP), and Pradhan Mantri Gram Sadak Yojana etc. are the reflections of the principle objectives enumerated in Article 47 which talks about raising the standard of living and to improve public health.
In the end, all these laws and policies try to achieve goals and principle given in Article 38 i.e. the creation of welfare state.
Importance of DPSPs for an Indian citizen
Regardless of the non-justiciable nature of DPSPs, a citizen should be aware of them. As the Article 37 itself describes these principles as fundamental in the governance of the country. The objective of the DPSPs is to better the social and economic conditions of society so people can live a good life. Knowledge of DPSPs helps a citizen to keep a check on the government.
A citizen can use DPSPs as a measure of the performance of the government and can identify the scope where it lacks. A person should know these provisions because ultimately these principles act as a yardstick to judge the law that governs them. Moreover, it also constrains the power of the state to make a draconian law. Through various judicial pronouncements, it is settled principle now that balancing DPSPs and Fundamental rights is as important as maintaining the sanctity of Fundamental Rights. Non following a directive principle would directly or indirectly affect the Fundamental Right which is considered as one of the most essential parts of the Constitution.
This Article tries to prove that the relevance and significance of DPSPs cannot be overlooked only on the basis of its non-justiciability. Our constitutional drafters did not add these provisions just for the sake of existence, rather they added these principles to facilitate the governance of the country. They added this part to meet the main objectives and the ultimate goal of a country. Moreover, after looking at the above-mentioned information, it would be wrong to say that DPSPs are not implemented. Every policy and law that the state comes up with has to meet the standards of Part IV. Thus, even after being non-justiciable, they hold equal relevance and significance as Fundamental rights or any other provision of the Constitution.
- Articles Related to Directive Principles of State Policy by Hemant Pratap Singh. (https://www.jagranjosh.com/general-knowledge/articles-related-to-directive-principles-of-state-policy-1474442764-1) accessed 2 May 2018
- Directive Principles of State Policy (DPSP), (http://www.iasscore.in/upsc-prelims/directive-principles-state-policy-fundamental-duties) accessed 2 May 2018
- Directive Principles of State Policy (DPSP), (https://www.gktoday.in/academy/article/directive-principles-of-state-policy/#Sources_of_DPSP) accessed 2 May 2018
- Directive Principles of State Policy (DPSP): Amendment, Sanctions, and Criticism, (https://aspirantforum.com/2016/06/27/directive-principles-of-state-policy-amendment-sanctions-criticism/) accessed 3 May 2018
- Constituent assembly debate on Directive Principles of State Policy by Surabhi Rao,(http://logos.nationalinterest.in/2014/07/constituent-assembly-debate-on-directive-principles-of-state-policy/) accessed 2 May 2018
- Scope of Enforcement of DPSPs by Aakanksha Bhola, (https://www.lawctopus.com/academike/scope-of-enforcement-of-dpsps/#_edn6) accessed 2 May 2018
- Fundamental Rights and Directive Principles (https://www.lawteacher.net/free-law-essays/administrative-law/fundamental-rights-and-directive-principles-administrative-law-essay.php?vref=1) accessed 3 May 2018
- Fundamental Rights vs Directive Principles: What If there is a conflict?, (https://www.clearias.com/fundamental-rights-vs-directive-principles-what-if-there-is-a-conflict/) accessed 3 May 2018
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