This article has been written by Avinash Kumar of 3rd-year pursuing B.com LLB from School of law, UPES Dehradun. This article discusses the concept of the Directive Principle of State Policy. In this article, I have mentioned all the provisions of the Directive Principle with the relevant case laws and tried to compare the fundamental right to the Directive Principle of State Policy.
Part IV of the Indian Constitution defines the Directive Principle of State Policy (DPSP). Basically, the Directive Principles of State Policy have been borrowed from the Irish Constitution. The Directive Principles of State Policy are guidelines to the State which has been written in the Indian Constitution. But you can’t compel the State for their enforceability in a Court of Law. While the Fundamental Right is enforceable in a court of law. Directive Principle is a set of instructions that have to be followed by the lawmakers while making the policy for the citizens.
Directive Principle of State Policy makes an obligation on the State to make good policies for the betterment of the society so that it could develop the Socio-economic conditions of the citizens.
The underlying object behind the Directive Principles
If the Union or State government made any law then it is the responsibility of the union or state government to follow the guiding principle of the state policy. The Objective behind the Directive Principles of State Policy is the welfare of the State. One of the important objectives behind the Directive Principles of State Policy is to achieve the goal of welfare state. The aim of the Directive Principle of State Policy is to improve the social and economic condition of the citizen so that they can enjoy the good life. Directive Principle of State Policy acts as a check and balance for the Government so that in the upcoming election a citizen of the country can cast their vote according to the performance of the previous government.
The success and failure of the government can be judged by their Policies and Principles and if the government fails to implement the Directive Principle in the State in a proper way, then they can lose the upcoming election. That’s why the Directive Principle of State Policy makes an obligation on the State that within the time period by implementing the principle, State can achieve its goal.
Classification of the Directives
Social and Economic Charter
Article 38(1) of the Indian Constitution talks about the social order based on justice. Article 38(1) says that it is the responsibility of the State to work for the welfare of the people. Social order includes the law and order. It also includes the Public order and the security of the state. That’s why it is the responsibility of the state to maintain public peace, public safety, public order.
The state has a legal duty as well as a constitutional mandate to maintain the security of citizens.
Principles of policy to be followed by the State for securing economic justice
Article 39 of the Indian Constitution directs the State to follow the principles while making policy for the Citizen.
- Men and Women will have an equal right in the means of livelihood.
- It is the responsibility of the State to distribute the ownership and control of the material to the common people.
- It is the responsibility of the State to not discriminate on the basis of sex which means men and women will get equal pay for equal work.
- The state has a responsibility to ensure the health of the children and workers.
- Article 39(b) also covers material resources. For the purpose of development, construction of the house, for the purpose of providing public facilities like roads, playgrounds, bridges, the government can acquire the land of the Private owners.
Social Security Charter
Equal justice and free legal aid to economically backward classes
Article 39A of the Indian Constitution says that it is the duty of the State to provide free legal aid to all the citizen of the country. It is the responsibility of the State to make provisions and schemes regarding free legal aid so that economically backward classes can take the benefit of that. Legal Aid and Speedy trial is now a fundamental Right which comes under Article 21 of the Indian Constitution. Even all the prisoners can enjoy this right.
Organization of Village Panchayats
Article 40 of the Indian Constitution talks about Panchayati Raj System. It is the responsibility of the State to take all the steps for the establishment of the Panchayati Raj.
Panchayati Raj is the pillar of the Indian Political System. It is the oldest form of Local self-government. Panchayati Raj election is the grassroots of Indian Democracy. All the members of Panchayati Raj are elected by the democratic process. Panchayati Raj System has been inserted in the Constitution by the 73rd Constitutional Amendment in 1973. Rajasthan was the first state to adopt the Panchayati Raj System. The election of the Panchayati Raj System is conducted by the State Election Commission. State Finance Commission Provides the funds for the betterment of the Panchayati Raj system.
Panchayati Raj System has been inserted in the Indian Constitution by the 73rd Constitutional Amendment in 1992.
On the recommendations of the Balwant Rai Committee, the Panchayati Raj System has been divided into three tiers:
- Village Panchayat;
- Panchayat Samiti;
- Zila Parishad.
Right to work, education and public assistance in certain cases
Article 41 of the Indian Constitution says that the State has a duty to provide employment, education and to provide help to those who are unemployed, and those who can’t take care of themselves like old age people.
Just and human conditions of work
Article 42 of the Indian constitution directs the State to develop the condition of humans and provide maternity relief.
A living wage for workers
Article 43 refers to the living wages for the workers, which means that the state has a responsibility to make a provision regarding the wages of the worker and wages should be as such that he can maintain all the basic necessities like clothes, food, shelter.
Participation of workers in the management of Industries
Article 43 A of the Indian Constitution talks about the participation of workers in management of industries. Article 43 A says that through the legislation, State has a responsibility to secure the participation of workers.
Provision for early childhood care and education to children below the age of six years
Article 45 of the Indian Constitution directs the state to make provision regarding free and compulsory education to all children till the age of 14 years. The reason behind free education to all the children is to eradicate the illiteracy rate.
In the case of Unni Krishnan v. the State of A.P, the Apex Court held that the Right to education, up to the age of 14 years is a Fundamental Right and it will come under the purview of Article 21 that is Right to life and personal liberty. In the 86th Constitutional Amendment, a new Article has been inserted that is Article 45 which says that the State shall provide childhood care and free education to all children till the age of six years.
Promotion of educational and economic interest of weaker sections
Article 46 of the Indian Constitution grants the power to State to do promotion of the educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections of the society. The state has also the responsibility to protect them from all forms of exploitation and injustice from society.
Duty to raise the standard of living and improvement of health
Article 47 of the Indian Constitution makes an obligation on the State to improve the level of nutrition and maintain the standard of living. It also makes an obligation on the State to improve the condition of public health.
The state has the power to prohibit all intoxicating drinks and drugs which are injurious to health except medical purposes.
Community Welfare Charter
Uniform Civil Code
Article 44 of the Indian Constitution states that it is the duty of the State to secure for the citizens a Uniform Civil Code throughout the territory of India.
Basically, the Uniform Civil Code means a set of laws through which all the personal laws of the different religions will come under one platform and governed by a single law. But currently, in India, each religion has a separate personal law and they follow their personal law. Goa is the only State to have a Uniform Civil Code.
The first issue regarding the Uniform Civil Code arose in the case of the Shah Bano case. In the case of Shah Bano’s case, her husband Ahmad khan divorced her and denied to give maintenance. Shah Bano moved the Supreme Court for the maintenance under Section 125 of Cr.PC.
The Supreme Court gave the judgment in favor of shah bano on the ground that Section 125 of Cr.PC. is applied to all citizens of the country irrespective of their Religion. But, the Muslim community was not ready to accept the judgment of the Supreme Court. Many protests were organized by the protesters against the judgment of the Supreme Court. Protester’s contention was that the Supreme Court doesn’t have any right to interfere in the personal laws.
After this case the Rajiv Government came up with a new law that is Muslim Women (Protection of Right on Divorce) Act 1986, which nullified the judgement of the Supreme Court. The Act states that in the Divorce matter the Personal law will prevail.
In the Act, it was also mentioned that in the Divorce matter Muslim men will have the right to give maintenance only till the time of Iddat Period, that is 90 days from the Divorce. After that, the liability of paying the maintenance will shift to the Waqf Board.
There was an NGO named Kalyani, and Sarla Mudgal was the President of the Kalyani NGO who had fought for the Meena Mathur. Under the Hindu Personal Law, Meena Mathur was married to Jitendar Mathur. As per Muslim Law, there is a provision that Muslim men can marry as many as four wives during his lifetime. After that Jitendra Mathur Converted into Islam and married another girl and that girl also converted into Islam.
Sarla Mudgal filed a case against the Jitendar Mathur. The contention from the advocate of Jitendra Mathur was given that he has married under the Muslim law, which permits the second marriage.
But the Supreme Court gave the Judgement in favor of Meena Mathur and held that Islamic Law permits four marriage but conversion for the purpose of marriage is an abuse of Personal Laws.
Further Court clarified that Hindu marriage will be dissolved only under the Hindu Marriage Act. In order to prevent such type of marriage Court also quoted that UCC should be implemented in order to prevent similar types of matters.
Promotion of Co-operative Societies
Promotion of Co-Operative Societies has been added by the 97th Amendment 2011. The state has a responsibility to promote Co-Operative Societies. Co-Operative societies include the management, control, functions.
The organization of agriculture and animal husbandry
Article 48 of the Indian Constitution talks about the Organisation of agriculture and animal husbandry. It is the responsibility of the State to organize agriculture and animal husbandry. Article 48 also directs the State to prohibit the Slaughtering of cows and calves and another dairy animal.
Protection and improvement of forests and wildlife
Article 48A of the Indian Constitution says that it is the responsibility of the state to take all the necessary steps to protect the environment, forest, and wildlife animals. In the M.C Mehta case, the Supreme Court has held that the State has a responsibility to take steps to improve the quality of polluted water.
Protection of monuments and places and objects of national importance
Article 49 of the Indian Constitution grants the power to the State to take care of and protect monuments and historical places. State also has a responsibility to protect the Ancient and historical monuments.
Separation of Judiciary from Executive
Article 50 of the Indian Constitution talks about the Separation of Judiciary from Executive. Judiciary is an independent body. The guardian of the constitution is Judiciary. If the executive will start working like judiciary then there will be a clash of power that’s why Article 50 separates the judiciary from the executive.
However, in some cases, judicial functions are performed by the executive.
Like in the Appointment of Judges they are appointed by the Executive.
However, in the matter of Pardoning and Reprieve Executive enjoys that Right.
Promotion of International Peace and security
Article 51 of the Indian Constitution talks about the Promotion of International Peace and Security. It is the responsibility of the State to Promote peace and security with another country.
It is the responsibility of the State to maintain good relations with another country. Good relations with another country help the State in many ways.
There are many international laws and treaties that were signed between the two State so it is the obligation on State to Respect or obey all the treaties and International Law. It also says that if any dispute arises between the two State then it is the responsibility of the State to settle the dispute by Arbitration.
The relation between Directive Principles and Fundamental Rights
Fundamental Right limits the power of the Government while making any law which means that the Government doesn’t have any authority to make a law that is inconsistent with the Fundamental Right. But the Directive Principle of State Policy are guidelines to state for achieving certain goals. If your fundamental right has been violated then you can go to the court by Article 32 but in violation of the Directive Principle of State policy, you can’t go to the court.
Nowadays, there are many debates that run that there is no use of Directive Principles of State Policy in the State because it is not enforceable in the Court but in the current scenario, it plays an important role for the betterment of the society.
You can read the Directive Principle of State Policy into the Fundamental Right. You can take the example of the Right to education.
The Directive Principle of State Policy expands the ambit of the fundamental rights.
In the past, there are many judicial pronouncements that have been pronounced by the Apex Court in which they draw the line between them.
In this case, the Apex Court held that the Directive Principle of State policy is the subsidiary to the Fundamental Right because Fundamental Right is enforceable in a Court of law while the Directive Principle of State Policy is not. Directive Principle of State Policy will run according to the Fundamental Right.
In the case of Re Kerala education bill, the Supreme Court held that there is no conflict between the Fundamental Right and Directive Principle of State Policy. Fundamental Right and Directive Principle of State policy are Complementary and Supplementary to each other.
Further, the Court held that they are elastic and wide in nature so that in the future it can change according to the needs of the Society. Supreme Court held that the Directive Principle of State Policy is the Integrated scheme.
In Minerva Mills case, the Supreme Court observed that fundamental rights are not the end of the path and end are specified in the Directive Principle of State Policy. Further, the Court explained that you can’t give primacy to one. One has to give priority to both.
The harmony and balance between the Fundamental Rights and Directive Principle of State Policy is an essential feature of the Constitution.
In this case, the Court held that you can’t make the distinction between the Set of Rights. Fundamental Right has a different goals while Directive Principle of State Policy has a different goals. Fundamental Right Represent the Civil and Political Right while the Directive Principle of State Policy represents the Social and Political Right. Further, the Court explained that the Directive Principle of State Policy is not enforceable in a court of law that doesn’t mean that these are subordinate.
Directive Principles have given the status of Fundamental Rights: A New Dimension
It is true that by the judicial pronouncements the court has given a new dimension to the Directive Principles of State Policy. In some cases, the Directive Principle of State Policy interpreted the concept of a fundamental right.
In the Unnikrishnan case, the Supreme Court changed the status of the Directive Principle into the Fundamental Right. That’s why the status of Article 45 of the Indian Constitution has been changed from the Directive Principle into the Fundamental Right. So that from the age of 6 to 14 years, it is the responsibility of the State to provide free and compulsory education to all children. And it is enforceable in a Court of Law. There is another example that has taken the shape of a Fundamental Right is Equal Pay for Equal Work. In the case of Randhir Singh, the Supreme Court held that Equal pay for equal work is a Fundamental Right and it is enforceable in a Court of Law.
In the case of M.H. Hoskot vs State of Madras the Supreme Court held that fair legal aid is an integral part of a fair procedure of court and it is the duty of the government to provide free legal aid. Free legal aid comes under Article 21 of Indian Constitution. While in the case of Hussainara Khatun vs Home Secretary, State of Bihar, Supreme Court held that detention of under trial prisoners is a violation of Article 21 and Right to a Speedy trial is a fundamental Right Speedy trial is the Fundamental Right of the citizen which will come under Article 21 of the Indian Constitution.
Difference between DPSP And Fundamental Rights
Directive Principle of State Policy
2. They are negative in nature because they prohibit the State from doing certain things.
2. They are positive in nature because it require the State to do certain things.
3. Fundamental Rights are enforceable in a Court of law.
3. Directive Principle aren’t enforceable in a court of law.
4. Fundamental Rights promote the welfare of Individual.
4. Directive principle promote the welfare of the Community.
5. For the implementation of Fundamental Right it doesn’t require any legislation.
5. Directive Principle require legislation for the implementation.
DPSP and Amendment
If the Union Government thinks that there is a need to amend the Directive Principle or to add something then Parliament has the power to amend or add something in the Directive Principle by the Special Majority. There are many amendments which has been done by the Parliament.
42nd Amendment Act, 1976
In the 42nd Amendment 1976, the Parliament has made four Amendments in the Directive Principle. Article 39 of the Indian Constitution Parliament has made an obligation on State to secure a social order for the promotion of the welfare of the People.
After that Parliament has added a new Article that is Article 39A which says that it is the duty of the State to provide equal justice to all and free legal aid. The 42nd Amendment Act Parliament has added a new Article that is Article 48A which says that it is the duty of the state to Protect the Environment and to improve the quality of water and air through all possible ways.
44the Amendment Act, 1978
The 44th Amendment of the Indian Constitution made an obligation on State to take all steps to eradicate the inequalities in the income of the Individual and to give the facilities to the Individual and the group of people who are residing in the different areas.
73rd Amendment Act, 1992
By the 73rd Constitutional Amendment, Parliament has added the Panchayat in Part IX of the Indian Constitution which talks about the Organisation of Village Panchayat.
86th Amendment Act, 2002
By the 86th Constitutional Amendment, a new Article has been inserted in the Constitution that is Article 21A which says that the Right to education is a Fundamental Right. It creates an obligation on the State to provide free and compulsory education to all the children who belong to 8 to 14 years of age. If the state fails to do so then you can sue in a court of law.
97th Amendment Act, 2011
Article 43B was added in the Indian Constitution which is related to the co-operative societies. It directs the State to take all the necessary steps to promote the voluntary formation, autonomous functioning, democratic control and professional management of the co-operative societies
Time to time there are many conflicts that arose regarding the supremacy of Fundamental Right over the Directive Principle of State Policy.
The question was whether the Fundamental Right is superior to the Directive Principle of State Policy or not? So through many judicial pronouncements, the Supreme Court has cleared their stand on that.
In this case, the Supreme Court held that if a Parliament made a law which contravenes the Fundamental Right then that law would be void but it will not apply to the Directive Principle of State Policy. It shows that fundamental rights are on higher pedestal than Directive principles of state policy. The subsidiary of Fundamental Right is the Directive Principle of State Policy. Directive Principle will operate according to the fundamental Right.
In this case, the Supreme Court gave the new principles that is the Principle of Harmonious Construction. In this case the Apex Court said that if there is any conflict between the Fundamental Right and Directive Principle of State Policy then the Doctrine of Harmonious Construction will apply. However if in case any conflict remains after applying the Principle of Harmonious construction then the Fundamental Right will prevail over the Directive principles of state policy.
In this case, the Supreme Court held that Parliament can’t amend the fundamental Right of the Indian Constitution. Another significant issue in this case was whether Amendment is a “law” under the meaning of Article 13(2). Article 39(b) and Article 39(c) come under the purview of the Directive Principle of State Policy and in giving effect to these articles if that law violates Article 14, 19 and 31 of Indian Constitution then that law can’t be declared as Unconstitutional.
In this case, the Supreme Court placed the Directive Principle of State Policy on a higher Position than the Fundamental Right. In the Minerva Mills case, there was a question that whether the Directive Principle of State Policy has supremacy over that. Then, in this case, the Apex Court has decided that the Doctrine of Harmonious Construction will apply.
Both are Complementary to each other and for the better function of the State, both should be balanced.
In this case, the Court was of the view that Fundamental Rights and Directive principles are not exclusive to each other therefore they shouldnt be read in exclusion. The goal of the Directive Principle of State Policy can be achieved only through the means of Fundamental Right.
You can’t deny the importance of the Directive Principle of State Policy. It plays an equivalent role. You can’t abhor the Directive Principle just because it is not enforceable in a Court of Law rather they are the guiding principle for the State. It is the responsibility of the State to apply these principles while at the time of making laws. However, it is not enforceable in a court of law but the Directive Principle of State Policy is the backbone of the Fundamental Right. The main reason behind the Directive Principle is to strengthen the condition of the people. It is just like a structure and policy through which the Government makes the law. Nowadays there are many Directive Policy which are taking the shape of the fundamental right. India is a democratic country and government change after every five years and every government makes new laws so in that situation Directive Principles of State Policy plays a vital role because every government has to follow these principles while making the laws for the Country.
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