Chapter 10: DIRECTIVE PRINCIPLES OF STATE                                                        POLICY

 

Introduction

    • PART IV of the Constitution (Arts. 36-51) contains the Directive Principles of State Policy. They are of the following classes :

      1. Certain ideals, particularly economic, which, according to the framers of the Constitution, the States should strive for.

      1. Certain directions to the Legislature and the Executive intended to show in what manner the State should exercise their legislative and executive powers.

      1. Certain rights of the citizens which shall not be enforceable by the Courts like the ‘Fundamental Rights’, but which the State shall nevertheless aim at securing, by regulation of its legislative and administrative policy.

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    • It shall be the duty of the State to follow these principles both In the matter of administration as well as in the making of laws. They embody the object of the State under the republican Constitution, namely, that it is to be a ‘Welfare State’ and not a mere ‘Police State’. Most of these Directives, it Will be seen, aim at the establishment of the economic and social democracy which is pledged for in the Preamble.

    • According to Sir Ivor Jennings the philosophy underlying most of these provisions is “Fabian ‘Socialism without the socialism, for, only the nationalisation’ of the means of ‘production,distribution and exchange’ is missing”. This much is clear however, that our Constitution did not adhere to any particular ‘ism’ but sought to effect a compromise between Individualism and Socialism by eliminating the vices of unbridled private enterprise and interest by social control and welfare measures as far as possible.

    • This is why a ‘Socialistic pattern of society’ not ‘socialism’, was declared to be the objective of our of Society.

    • It must be mentioned, in this context, that the governmental policy, at the Union level, had demonstrated a greater bias towards collectivism during the regime of his daughter, Mrs. Indira Gandhi, and quite a number of industrtes, trades and other means of production were nationalised during the three decades since independence, either directly or through the agency of State-owned or State-controlled corporations, e.g., banking, insurance, aviation, coal mines.

    • It should however, be mentioned that though the objective of the State has been described to be ‘socialist’, by the mene, amendment of the Preamble by the 42nd Amendment Act, Mrs. Gandhi had said that this socialism did not indicate collectivism, but the offering of equal opportunities to all through socio-economic reform,”. By the same Amendment, certain other changes have been Introduced in Part IV, adding new Directives, to accentuate the socialistic bias of the Constitution :

      1. Art. 39A has been inserted to enjoin the State to provide free legal aid to the poor and to take other suitable steps to ensure equal justice to all, which is offered by the Preamble.

      1. Art. 43A has been inserted in order to direct the State to ensure the participation of workers in the management of industry and other under- takings (this is what is known as ‘profit-sharing’. This is a positive step in advancement of socialism In the sense of economic justice

    • The Janata Governmeru sought to implement the promise of economic Th 44th justice and equality of Opportunity assured by the Preamble, by inserting Cl. (2) in Art. 38 (by the 44th Amendment Act, 1978), as ollows:

    • The State shall, in particular, strive to minimise the Inequalities In Income, and endeavour 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.

    • This innocently-looking amendment is to be read along with elimination of the Fundamental Right to Property. They have paved the way for confis- catory taxation and for equalising salaries and wages for different vocations and different categories of work, which would usher In a socialistic Society, even without resorting to nationalisation of the means of production.

    • Art. 38 enjoins the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may the social order in which Justice-Social, economic and political-shall inform all the institutions of national life striving to minimising inequalities in income and endevour to eliminate inequalities in status, facilities, opportunities among individuals and groups of people residing in different areas or engaged in different vocations

    • The Constitution (Eighty-sixth Amendment) Act, 2002 substituted Art. 45 making provision for early childhood care and education to children below the age of six years in place of provision for free and compulsory education until they completed the age of fourteen years.

    • While the Fundamental Rights constitute limitations upon State action, the Directive Principles are in the nature of instruments of Instruction to Government of the day to do certain things and to achieve certain ends by thelr actions,

    • The Directives, however, require to be implemented by legislation, and so long as there is no law carrying out the policy laid down in a Directive, neither the State nor an individual can violate any existing law or legal right under colour of following a Directive.

    • he Directives are not enforceable in the Courts and do not create any justiciable rights in favour of the individuals.

    • From the standpoint of the individual, the difference between the Fundamental Rights and the Directives is that between justiciable and non-justiciable rights,-a classification which has been adopted by the framers of our Constitution from the Constitution of Eire.

    • Thus, though the Directive under Art. 43 enjoins the State to secure a living wage to all workers, no worker can secure a living wage by means of an action in a Court, so long as It is not implemented by appropriate legislation.

    • In other words, the Courts are not competent to compel the Government to carry out any Directive, e.g., to provide for free compulsory education within the time limited by Art. 45 or to undertake legislation to implement any of the Directive Principles.

    • It may be observed that the declarations made in Part IV of the Constitution under the head ‘Directive Principles of State Policy’ are in many cases of a wider import than the declarations made in Part III as ‘Fundamental Rights’.

    • Hence, the question of priority in case of conflict between the two classes of provisions may easily arise. But while the Fundamental Rigbts are enforceable by the Courts and the Courts are bound to declare as void any law that is inconsistent with any of the ‘Fundamental Rights’, the Directives are not so enforceable by the Courts [Art. 37], and the Courts cannot declare as void any law which is otherwise valid, on the ground that it COntravenes any of the ‘Directives’.

    • Hence, in case of any conflict between Parts III and IV of the Constitution, the former should prevail in the Courts

    • The foregoing general proposition, laid down by the Supreme Court in 1951, must now, however, be read subject to a major exception. Article 31C, introduced in 1971 and expanded by the Constitution (42nd Amendment) Act, says that though the Directives themselves are not directly enforceable in the Courts, if any law is made to Implement any of the Directives contained in Part IV of the Constitution, it would be totally immune from unconstitutionality on the ground of contravention of the fundamental rights conferred by Arts. 14 and 19.

    • This attempt to confer a primacy upon the Directives as against the Fundamental Rights has, however, been foiled by the majority of the Supreme Court in the Minerva Mills case in two respects:

    • It has struck down the widening of Art. 31C to include any or all of the Directives in Part IV, on the ground that such total exclusion of judicial review would offend the ‘basic structure’ of the Constitution. In the result, Art. 31C is restored to its pre-1976 position, so that a law would be protected by Art. 31C only if it has been made to implement the directive in Art. 39(b)-(c) and not any of the other Directives included in Part lV.

    • It has been also held that there is a fine balance in the Original Constitution as between the Directives and the Fundamental Rights, which should be adhered to by the Courts, by a harmonious reading of the two categories of provisions, instead of giving any general preference to the Directive Principles.

  • It is also to be noted that outside these twoLD fundamental rights [in Arts. 14 and 19], the general proposition laid down in 1951 shall subsist. Thus, by way or implementing the Directive In Art. 45, to provide free and compulsory education to children,-the State cannot override the fundamental right, under Art. 30(1), of minority communities to establish educational institutions of their own cholce.