Scope of Enforcement of DPSPs

Aakanksha Bhola, Army Institute of Law, Mohali

Editor’s note: The roots of Directive Principles of State Policy are evident from the belief that responsibility of social development of the country lies with the government. Enshrined in Part IV (Articles 36-51) of the Constitution of India, DPSPs serve as a guideline for the government policy formation. Although not enforceable, they distinguish India as a welfare state, and aim to fulfill principles laid down in the Preamble. This paper covers their scope, enforceability and ideology of the same.

Introduction

A concept borrowed from the Irish Constitution, the roots of the Directive Principles of State Policy lie in the history of India itself. Since the times of the myriad rulers India had seen, the responsibility of both initiation and execution of efforts to improve the lot of the people had lain with the government.[i] Brought up in such an environment, the members of the Constituent Assembly believed that the responsibility of social development of the country lay with the government. The Directive Principles of State Policy, hereafter referred to as DPSPs, are enshrined in Part IV (Articles 36-51) of the Constitution of India. Their primary function is to serve as a guideline for the government policy formation. The government is expected to take these principles into consideration while performing its legislative functions. But unlike the Fundamental Rights, contained in Part III of the Constitution, these principles are not enforceable.

Apart from laying the guidelines for government policy making, the DPSPs also lay down the objectives of the Indian State. They differentiate between a ‘Welfare State’ and ‘Police State’, their presence making India the former. They provisions in this Part include promotion of welfare of citizens, provision of free legal aid to the economically disabled, organizing village panchayats, developing a Uniform Civil Code, raising nutrition levels, etc. They also aim to establish social and economic democracy promised in the Preamble.[ii] They were inserted with the aim of establishing a ‘socialist pattern in the society’ and not subscribe to either of the extremes-Individualism or Socialism.[iii]

Keeping the above points in consideration, this paper will deal with the nature and historical basis of the DPSPs. It will also deal with the question of whether making these principles justiciable is right and if they are to be made enforceable, the scope of this enforceability, keeping in mind their roots and the ideology behind them.

Nature of DPSPs

Article 37 explains in whole the nature of the DPSPs,

“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

Thus, DPSPs are not enforceable by any Court, that is, no Court can force the government to enforce these Principles or make laws regarding them. But mere non-enforceability does not make them useless. For the following reasons, this Part has become an important part of the Constitution:

  1. Sir B.N. Rau believed that these Principles had an “educative value”. [iv] This educative value was for reminding those in power what the aim of the Indian polity is. All the provisions in the Part encompass the goal of the Welfare State that is India.
  2. Though these Principles are not legally enforceable, they do have political justifiability. As put by Dr. B.R. Ambedkar, “the government has to answer for them before the electorate at election time.”
  3. They help the Courts in interpretation of various statutes. The interpretation shall be such that the statutes are not in conflict with them. They also help the courts to determine the scope of Fundamental Rights.

Thus, in Air India Statutory Corporation v. United Labour Union[v], the Supreme Court has rightly observed that DPSPs are forerunners of the U.N. Convention on Right to Development. They are imbedded as an integral part of the Constitution and that they now stand elevated to inalienable fundamental human rights. Though non-justiciable, they are justiciable by themselves.[vi]

Relationship with Fundamental Rights

A major concern regarding the validity of the DPSPs is their compatibility with the Fundamental Rights contained in Part III of the Constitution, enforceable even in the High Courts and the Supreme Court through the manner of writs. The following are the points of difference between the two:

  1. The Fundamental Rights are a limitation on the powers of the government operating on an individual, whereas, the DPSPs are instructions to the government for achieving certain ends through their actions.
  2. Anything contained in the DPSPs cannot be violated either by the individuals or the State, as long as there is no law made to that effect, while there are strict remedies against violation of an individual’s Fundamental Right.[vii]
  3. A law against the DPSPs cannot be declared as void by the courts, but this is not the case with Fundamental Rights.[viii]

There often arises a conflict when a question regarding the priority is raised. The views have differed with every judicial decision. In a view taken in 1951, in the case of State of Madras v. Champakan[ix] the Supreme Court held that since any law contravening the Fundamental Rights is void, this is not the case if an otherwise valid law contravenes the DPSPs. Thus, the Fundamental Rights should have precedence over DPSPs. This view was, however, altered by the Constitution (42nd Amendment) Act, 1971. It widened Article 31C to basically state that if any law is made to implement the DPSPs it would be immune from unconstitutionality on the grounds that it violates Articles 14 and 19. The Keshavnanda Bharti v. State of Kerala[x] judgment also reiterated a similar view that subordinated Fundamental Rights to the DPSPs. But this view has been foiled in Minerva Mills v. Union of India[xi] in which, the widening of Article 31C was struck down and it was observed that both these facets were to be delicately balanced and that they were complementary to each other.

Views of the framers of the Constitution

The applicability and usefulness of the non-justiciable DPSPs has been widely debated. In fact, H.M. Seervai went as far as saying that if the Court struck down the DPSPs, there will be no effect; but if the Fundamental Rights were struck down, the effect will be disastrous.[xii] Does their unenforceable nature render them altogether useless? Do they have to be made enforceable in order for them to remain relevant? To answer these questions, it is important to study the views held by the framers of the Constitution regarding these Directives.

The provision to incorporate these DPSPs found wide support in the Constituent Assembly. Even if their effectiveness was questioned, the members supported the sentiments they expressed.[xiii] Several members, namely Rau, Ambedkar, Ayyar and Shah, of the Assembly actively defended their inclusion.

Sir B.N. Rau emphasized on precepts rather than on justiciable rights, and also thus distinguished between justiciable and non-justiciable rights (an inspiration from the Irish Constitution) in his work, Constitutional Precedents because of the difficulty in describing and limiting negative rights. The Precedents, during the Drafting of the DPSPs, supplied the members with at least five of the original twelve provisions of the Principles.[xiv]Rau also emphasized that these rights had an educative value. He also believed that these Principles could occasionally invade the individual rights for greater goods. Therefore, it can be said that he was a strong proponent of the DPSPs.

Dr. B.R. Ambedkar and K.T. Shah were other strong proponents of the Directive Principles. They did not agree with Rau’s concept of ‘moral precepts’ and believed that they must also be justiciable. They propagated the idea of a particular time limit within which these Directives must become justiciable. Ambedkar also submitted to the Assembly a list of Fundamental Rights that included special provisions regarding minorities, nationalization of land and the key industries (especially agriculture), state monopoly over Insurance that was to be made compulsory for every adult, etc. To summarize, he strongly supported the ideology of Socialism. Perhaps this shared ideology prompted Shah to also subscribe to viewpoints similar to Ambedkar’s. However, the Assembly rejected this list on the ground that these provisions could be dealt with through further legislation, and there was no need to include them in the Constitution itself. When the inclusion of this list in the part concerning the Fundamental Rights was rejected, Ambedkar put his weight behind the provisions of the DPSPs. Half a loaf of bread was better than none.[xv]

Alladi Krishnaswami Ayyar was initially skeptical of the DPSPs, but later converted to the belief that it was idle to suggest that a freely appointed Legislature could ignore these Directives. Munshi also shared this view, as can be assessed from his words, “Even the non-justiciable rights have to announced in order to form the basis of protest against arbitrary legislation. They are a body of opinion to which public opinion can rally.”

Except T.T. Krishnamchari, who called the DPSPs, “ a veritable dustbin of sentiment”, the views of the members of the Constituent Assembly can be summarized mainly as supportive of the Directive Principles of State Policy. Their main points of disagreement over these provisions were, that they were not enforceable, and that that they did not go far enough in establishing a socialist state, an ideology common in post-imperialism India.[xvi]

But why did the Assembly decide that the DPSPs should not be justiciable? Despite the initial disagreements over the non-enforceable nature of the DPSPs, the Assembly decided on the Directives in their present form for mainly two reasons- firstly, the changing times could put them out of date, and secondly, India did not possess the adequate resources at the time of Independence to enforce all the DPSPs, and thus, it was left to the future Governments to follow them voluntarily.[xvii]

Should DPSPs be made enforceable?

The DPSPs were not made enforceable by the Constituent Assembly due to the reasons mentioned above. Despite the fact that they have not been made justiciable, they are not without use. But will the motives they wanted to achieve become more achievable if they were made enforceable? Do their provisions even resonate with the present ideals held by the society?

A foremost argument in favour of making the Directives enforceable is that their justifiability will keep the autocratic tendencies of the ruling governments in check. Also, most of the provisions contained in the DPSPs are promises made by the contesting parties during the time of elections. These promises, as is common knowledge, are seldom kept. But if these DPSPs are justiciable in a court of law, the government becomes answerable to the people. Their actions will also be controlled by through these Directives. An example would be the provision contained in Article 44, relating to the implementation of a Uniform Civil Code. This provision aims for a uniform civil law (much like the criminal law in force) for all citizens regardless of their religion, and other beliefs. If implemented, it could play a critical role in uniting India, and making divisive policies a thing of the past.

But it is also argued that making the Directives enforceable is futile, since a large number of laws and policies are already in place for the implementation of these DPSPs. For example, the provision of Panchayati Raj (Article 40) was introduced through an Amendment to the Constitution in 1992. Today, there are 2,27,698 Gram Panchayats, 5906 Intermediate Tiers, and 474 Zila Panchayats in the country.[xviii] For raising the standard of living (Article 47), a number of programs are in place, namely Integrated Rural Development Program (IRDP)[xix], Integrated Tribal Development Program (ITDP), and Pradhan Mantri Gram Sadak Yojna. For implementing Article 39(a) (provision of adequate means of livelihood) the Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA) is in place. For preventing exploitation of children (Article 39(g)) legislations such as the Child Labour (Prohibition and Regulation) Act 1986 have been enforced. Since the governments have been working towards the creation of a welfare state and have implemented most of the Directives by the way of legislations that are enforceable, the need to make the DPSPs justiciable themselves is not crucial.

Another argument against enforcing the DPSPs is that their provisions are not very secular. Though it calls for the implementation of a Uniform Civil Code, it also directs the state to ban the slaughter of cows, a cause that is primarily Hindu. Regarding this provision contained in Article 48, Austin Granville says, “Article 48 shows that Hindu sentiment predominated the Constituent Assembly.”[xx] This sentiment predominated the Constituent Assembly, but it does not predominate the national sentiment today. Recently, Maharashtra and Haryana have banned beef (cow’s meat). This Act has drawn the ire of the country, as it has been considered a move aimed to establish India as a Hindu nation. Similar reactions will follow if ban on cow slaughter is enforced nationwide according to DPSPs.

The Directive Principles also try to impose morals on the citizens, something that is inarguably outside the scope of law. The Directives contain a provision that calls for the ban on alcohol. Though it has never been enforced on a national level, this provision certainly tries to impose certain morals on the people. This can become disastrous for the nation, as the American Prohibition has proven. Thus, Allen was right when he said that, “A little too much law, and you turn a moderate drinker into a dipsomaniac, an agnostic into a blaspheme, the enlightened employer into a gradgrind, and a flirt into a dipsomaniac.”

Conclusion

Keeping in mind the arguments put forth above and the aim of the Constituent Assembly while creating the non-justiciable rights, it can be concluded that making the DPSPs enforceable is unnecessary. The Assembly did not want to enforce the Directives because they feared that they would become out of date over time.  Secondly, most of their provisions have been enforced through various legislations; those that are not enforceable have debatable relevance in today’s world.

But merely because they are not justiciable in a court of law, does not render them useless. Their importance has increased manifold over the years. They serve not only as guidelines today, but also keep a check on the governments, even though that check is not the Court’s but the citizens’. The parties that form governments today are not concerned with the well-being of the nation. They play divisive politics for their personal betterment. They are concerned with the furtherance of their ideologies that the nation may not even share. In this environment, the DPSPs are a yardstick for the government’s performance and also a check on arbitrary legislation.

We should be not blinded by the glorious provisions contained in these Directives. They are useful and define us as a welfare state, but enforcing them will serve no purpose. They have mostly been made justiciable through other laws, and amending them will give rise to gross misuse by fanatics. The current position of the Directives is balanced and desirable. But it is also recommended that they must be made secular and free of morals that they impose on citizens. They must incorporate the sentiments held by the nation as a whole and not those held by only a particular class.

Edited by Neerja Gurnani

[i] Granville Austin, The Indian Constitution: Cornerstone of a Nation, 76 (4th ed., 2001).

[ii] Durga Das Basu, Introduction to the Constitution of India, 163 (22nd ed., 2015).

[iii] Ibid.

[iv] Ibid, at 170.

[v] AIR 1997 SC 645

[vi] Narender Kumar, Constitutional Law of India, 480 (8th ed., 2014).

[vii] Supra ii

[viii] Supra vi, at 481.

[ix] (1951) SCR 523 (531)

[x] AIR 1973 SC 1461

[xi] AIR 1980 SC 1789

[xii] H.M. Seervai, Constitutional Law of India (Volume 2), 1921 (4th ed., 2010).

[xiii] Supra i, at 77.

[xiv] Ibid.

[xv] Ibid, at 78 and 79.

[xvi] Ibid, at 81.

[xvii] Surabhi Rao, Constituent assembly debate on Directive Principles of State Policy, National Interest, available at http://logos.nationalinterest.in/2014/07/constituent-assembly-debate-on-directive-principles-of-state-policy/, last seen on 13/8/2015.

[xviii] Supra vii, at 172.

[xix] Ibid, at 173.

[xx] Supra xiii, at 82.

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