Directive Principles For the establishment of the welfare state - By Kamaluddin Khan




By Kamaluddin Khan,

Part IV (Article 36-51) of the Constitution contains the directive principles of state policy. The principles reflect a unique mixture of humanitarian, socialist percepts, Gandhian ideals and democratic socialism. Though non-justiciable, they constitute the fundamental principles of governance. These directives are in nature of directions to the legislative and executive wings of government to be observed while formulating laws and policies. Most of them aim at the establishment of economic and social democracy which is pledged for in the preamble.

Our Constitution aims at bringing a synthesis between fundamental rights and directive principles between fundamental rights and directive principles of state by giving the former a pride of place and the later a place of permanence.together, not individually, they form the case and conscience of constitution

So, these principles may be classified under several groups:
(i)certain ideals, particularly economic which according to the farmers of the constitution, state should strive for; (ii) certain directions to to the legislature and the executive intended to show in what manner the state should exercise their legislative and executive powers and (iii) 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.

By the 42nd amendments, certain changes have been introduced in part IV, adding new directives to accentuate the socialistic bias of the Constitution:

(a) Article 39 A 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 of all, which is offered by the Preamble.

(b) Article 43 A has been inserted in order to direct the state to ensure the participation of workers in the management of industry and other undertakings. This is a positive step in advancement of socialism in the sense of economic justice.

(c) Article 48 A has been inserted in order to direct the state to protect and improve the environment and to safeguard the forests and wild life of the country.

The Janata Government sought to implement the promise of economic justice and equality of opportunity assured by the preamble, by inserting Section (2) in Article 38 (by the 44th Amendment Act, 1978) as follows:

“The state shall, in particular, strive to minimize 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 amendment is to be read along with the elimination of the Fundamental Right to Property. They have paved the way for confiscatory taxation and for equalizing salaries and wages for different vocations and different vocations and different categories of work, which would usher in a socialist society, even without resorting to nationalization of the mean of production.

Philosophical Bases of Directive Principles

The framers of the Constitution were in this respect influenced most by the Constitution of Irish Republic which embodies a chapter on “Directive Principles of State Policy”. The Irish themselves had, however, taken the idea from the Constitution of Republican Spain which was the first ever to incorporate such principles can be traced back to such noble declarations as French declaration regarding Rights of Men, American Declaration of Independence and the Charter of Liberal Philosophy of the 19th Century. The ideas of Jeremy Benthan, the political and social stand of the of the Liberal and Radical Parties of Western Europe, the major principles of Fabian Socialism, and to some extent those of Guild Socialism, are all akin to much of what is embodied in this part of the Constitution. The Directive Principles represent some what the pattern of instrument of instruction provided in the Government of India Act, 1935. At the same time, it will be wrong to say that the Directive Principles are all foreign borrowings. In fact, a number of these principles are entirely Indian and Gandhian in nature like setting up of village panchayat and cottage industries, prohibition, protection against cow-slaughter etc.

Classification of Directive Principles

In order to understand the comprehensiveness of the Directive Principles, it is convenient to classify them into related groups. Dr. M.P. Sharma has suggested that they can be grouped ideologically into three categories, viz., socialistic, Gandhian and liberal intellectualistic. We may classify them into following groups:

1. Social and Economic Justice

(a) Social order based on Justice: Article 38 (1) provides that the state shall strive to promote the welfare of the people by securing and protecting a social order based on social, economic and political justice.

Article 38 (2) further elaborated the state’s duty inserted by the 44th Amendment. It provides that the state shall strive to minimize inequalities in income and endeavour to eliminate other inequalities based on status, facilities and opportunities.

(b) Distributive Justice: Distrbutive justice is the common aim of Article 38 and 39. They propose to promote equality in wider import and create circumstances to avoid injustice at the social and economic levels.

Article 39 directs the states to secure the equal right of men and women to adequate means of livelihood; distribution of the ownership and control of the material resources of the community to the common good; that the economic system does not result in the concentration of wealth and means of production; equal pay for equal work; protection of the health or workers and children and ensure that the citizens are not forced by economic necessity to enter vocations unsuited to them; and that the children and youth are protected against exploitation and against moral and material abandonment.

2. Ideals of Social Security

(a) Right to work, to education and public assistance in certain cases (article 41). Recently the Supreme Court declared, in Mohini Jain’s Case that the right to education be equated with a fundamental right and it should be read with Article 22. This is because the right to life means a dignified life, which has no meaning without education.

(b) Free and compulsory education for children upto 14 years. (Article 45)

(c) Promotion of educational and economic interests of the weaker sections. (Article 46)

(d) Raising the standard of living and improvement of health. (Article 47)

(e) Equal justice and free legal aid. (Article 39 A).

(f) Just and human conditions of work. (Article 42)

(g) Living wage, etc for workers in the management of industries. (Article 32(a).

(3) Community Welfare ideals.

(a) Uniform Civil Code. (Article 33)

INDIAN POLITY

(b) Organization of agriculture and animal husbandry. (Article 48)

(c) Protection and improvement of forests and animal life. (Article 48).

(d) Protection of monuments and places and objects of national importance. (Article 49).

(e) Separation of judiciary from executive. (Article 50)

(f) Promotion of international peace and security. (Article 51)

(g) Organisation of village Panchayats. (Article 40)

Directives contained in other parts

Besides the directives contained in Part IV, there are certain other directives addressed to the state in other part of the Constitution. Those directives are also non-judicial. There are:

1. Article 350 A enjoins every state and every local authority within the state to provide adequate facilities for instruction in the mother tongue at the belonging to linguistic minority groups.
2. Article 351 enjoins the union to promote the spread of the Hindi language and to develop it so that it may serve as a medium of expression of all the elements of the composite culture of India.
3. Article 335 enjoins that the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the union or a state.

Though the Directives contained in Article 335, 305A and 351 are not included in Part IV, courts have given similar attention to them on the application of the principle, that all part of the Constitution should be read together.

Fundamental Rights Vs Directive Principles

The preamble, the Directive Principles and the Fundamental Rights constitute the more important features of our Constitution. The Directive Principals of the State Policy enshrined in Part IV and the Fundamental Rights, guaranteed in Part III of the Constitution.

Although Fundamental Rights and Directive Principles appear in the Constitution as district entities, it was the Assembly that separate them; the leaders of the freedom struggle had drawn no distinction between the positive and negative obligations of the states. Both types of rights had developed as a common demand, products of national and social revolutions, of their almost inseparable intertwining and of the character of Indian polity itself.

The directive principles, though fundamental in the governance of the country, are not enforceable by any court in terms of the express provisions of Article 37 of the Constitution, while fundamental rights are enforceable by the Supreme Court and the High Court in terms of the express provisions of Article 32 and 226 of the Constitution. This doest not, however, mean or imply any dichotomy between the two. It social aspect can, however, be amended only by legislation to carry out the objectives of the directive principles of state policy.

The directives differ from the fundamental rights in Part III of the Constitution or the ordinary laws of the land, the following ways:

1. While the fundamental rights constitute limitations upon state action, the directive principles are in the nature of instruments of instruction to the government of the day to do certain tings and to achieve certain ends by their actions.
2. Fundamental rights are justiciable, but the directive principles are non-justiciable.
3. The directives, however, require to be implanted by legislation, and so long as there is no law carrying out the policy laid down in a Directives, neither the state nor individual can violate any existing law or legal right under colour of following a Directives.
4. The fundamental rights lay down the negative obligation of the state. They are prohibitive in character and are, in fact, in the nature of injunctions requiring the state not to do certain things. Directive principles are, on the contrary, affirmative directions dealing with the positive obligations of the state towards the citizens, they declare the duty of the state to promote certain social and economic objectives.
5. The main objective of fundamental rights is to establish political democracy, by guaranteeing equality, liberty, religious freedom and cultural rights but the aim of directive principles of state policy is to establish just social, economic and political order. MV, Pylee has rightly observed:
6. The fundamental rights are negative in negative in character, the government, the directive principles are positive as they ask the stale to endeavour to achieve certain goals.
7. Directives are implemented by the legislation sought from the legislative list contained in 7th Schedule of the Constitution. Fundamental rights are incorporated in the Constitution and are within jurisdiction of an individual.
8. The court cannot compel the state to implement the directives. They can issue writs to enforce the fundamental rights.
9. The court cannot declare any law as void on the ground that it contravenes the directives.

In the state of Madras vs Chnmpakan (1951), the Supreme Court highlighted the non-enforceable nature of the Directive Principles. It declared that no law could void on the ground of cont ravening the directive principles. However, the 25th Amendment Act (1971) introduced Article 3IC'. Which was to protect a law seeking to implement a directive under 39 (b)-(c) (ownership and control on material resources for common good; to avoid common fraction of wealth) from being declare ultra vires on the ground of contravening. The Keshvananda Bharti Case (1973) upheld the validity of the 25th Amendment Act.

The 42nd Amendment Act (1976) (Section 4) tried to further expand the scope of the directive principles through change in Article 31 A's operation. It sought to protect any laws implanting any of the directive principles from judicial review on ground of violating Article 14 and 19. However, the Minarva Mills Case (1930) foiled the attempt to accord primacy to the directives over fundamental rights. It declared the expansion of 31C as ultra vires as it tried to change the basic structure of the Constitution. The scope of Article 31C was pushed back to the pre-1976 position. The Court added 197, position. The Court added the 'reasonableness' clause to enable any Act under 31C to implement Directive Principles 39 (b)-(c), (c f. Slate of Tamit Nadu Vs Abu Kavur (198.1), Sec, 515).

Relative Importance

During the first sixteen years of the operation of the Constitution, the directive principles were considered subordinate to the fundamental rights: the courts track down a number of laws enacted to implement directive principles on the ground that they violated the fundamental rights. The conflict has its root in the fact that fundamental rights are enforceable b1' the courts, while the directive principles are not so. However, the government tried to overcome the problem by amending the Constitution. When the Supreme Court laid down in the Golaknath Case that the fundamental rights cannot be abridged to implement the directive principles, the Government tried to overcome the limitation in 1971 through the 24th Amendment which gave Parliament the right to amend fundaments I rights. In the same year, the 25th Amendment Act inserted Article 31c ensuring that certain laws meant to implement Directives in clauses 39 (b) and 39 (c) will prevail even if these laws violate the rights granted in Article 14 and 19. An attempt to enhance the scope of Article SIC was made by the 42nd Amendment Act which gave primacy to any or all the directive principles and deprived the courts of the right to look into such cases. This attempt was foiled by the Supreme Court majority judgement in Minrn'a Mills Case which asserted that such total exclusion of judicial review would offend the basic structure of the Constitution. The widening of Article 3k is restored to its pre-1976 position in that a law would be protected by this Article only if i1 has been made to implement any directive in Article 39 (b)-(c) and not any of the other directive principles in Part IV. In all other matters no fundamental rights can he violated by a law purporting to implement a directive principle.

On the whole, however, the conflict between these two features of the Constitution is meaningless as they are, in reality complementary to each other. The courts have increasingly based their judgment on a harmonious reading of Part III and IV of the Constitution.

Implementation of the Directive Principles

The Constitution has been amended, successively (e.g., first, fourth, seventeenth, twenty-:fifth, twenty- foruth 42nd and 44th Amendements), to modify those fundamental rights by reason of whose existence the state was experiencing difficulty in effecting agrarian, economic and social reforms which are envisaged by the directive principles. The unspectacular implementation of the directive principles is mainly on account of the resource crunch and lack of political will or foresight. Poverty eradication, education, betterment of the backward classes' condition are a few areas where the directives have practically failed to show results.

Though implementation has been far from satisfactory, the state is showing genuine will to implement the directive principles. In electoral politics, no government may, with impunity, ignore welfare-oriented policies with regard tee public health, education, economic equality, position of women, children and backward classes. In totality the directive principles operate well in the planning process, but still have not been fully translated into action. It cannot be denied that various governments have put in some efforts in this direction. The directive in Article 39 (b) has influenced legislation to fix land ceilings, remove intermediaries such as Zarnindar, abolish hereditary proprietors, etc, and made the tiller of the soil real owners of the land. The enactment of the Hindu Marriage Act (1955) and the Hindu Succession Act (1950) have been important steps to implement the directives of Uniform Civil Code.

Gandhian Principles

Article 40: State shall organize village panchayat as unit of self-government.

Article 43: State shall try to promote cottage industries.

Article 46: State shall promote with special care the educational and economic interests at the weaker sections of the peoples: SC and ST.

Article 45: State shall provide compulsory primary education for the children upto 14 years.

Article 47: State shall try to secure the improvement of public health and the prohibition of intoxicating drinks and drugs.

Article 48: State shall preserve and improve the breeds and prohibit the slaughter of cows, calves and other cows and drought cattle.


Directives Inspired by Western Liberal Ideas

Article 44 : to secure a uniform civil code throughout the territory of India.

Article 45: Free compulsory and primary education for the children upto 14 years.

Article 50 : to work towards separating the judiciary from the executive.

Article 51: to promote international peace and amity, maintain honourable relations between nations, foster respect for international law and treaty obligation.

Article 49 : to-protect and maintain places of - historic or a rustic interests.

Directives Inspired by Socialistic Ideas

Article 38: To promote the welfare of the people and to secure a just social order.

Article 39: Adequate livelihood for all citizens; 1 distribution of ownership and control of material resources of the community to sub serve common good; an economic system which does not lead to concentration of wealth; equal pay for equal work for both men and women; health and strength of worker; opportunity and facilities for children to develop in a healthy manner and be protected from exploitation.

Article 41: To make effective provision for securing the right to work, right to education, right to public assistance in case of unemployment, old age,, sickness, and disability.

Article 42: Asks for provision for just and human condition of work, and for maternity relief.

Article 43: To secure all workers-agricultural, industrial or otherwise- living wages; in particular promote cottage industries.

Article 45: Free and compulsory education for children upto 14 years.

Article 40 has led to several laws for organising Village Panchayat; the 72nd Amendment Act seeks to organise the pmrchavati Faj system with seats ,Served for women; Article 43 is seen working in the formation of several boards to develop cottage industries legislation for compulsory education at primary level exists as directed by Article 45; various programmes to educate the tribal youth and promote the welfare of Scheduled Tribes and Scheduled Castes have hen up Various measures have been taken up to protect historical monuments, forests and wild life. The Mandal Commission has been declared Constitutional. The state is all set to provide reservation in government jobs to the socially and educationally backwards (SEB).

Non-enforceable Rights of Citizens

Article 39: Requires the state to direct its policy towards securing (a) adequate means of livelihood for all citizens (b) distribution of ownership of ownership and control of material resources of the community to usbserve common good (c) an economic system which does not lead to concentration of wealth (d) equal pay for equal work for both men and women (e) health and strength of workers (f) opportunities and facilities for children to develop in a healthy manner and be protected from exploitation.

Article 41: To make effective provision for securing the right to work, right to education, right to public assistance in case of unemployment, old age, sickness and disability.

Article 42: For just and human conditions of work and for maternity relief.

Article 43: To secure all workers – agricultural, industrial or otherwise lying wages; in particular promote cottage industries.

Article 45: To provide free and compulsory education (or children opts 14 years within a period of ten years from the commencement of the. Constitution

In 1971 fourteen major banks were nationalished and privy purses abolished. The Supreme Court's challenge to the legality of this slop prompted the government to include 31C by the 25th Amendment the directive principles 39 (b) (e) from being thrown out by the courts. Efforts have been made to organize agriculture along modern and scientific lines. Cow slaughter is banned in many states. A legal aid system has been established. Some states have legislated for public assistance in case of unemployment, old age and disability. However, on the whole, implementation of the legislations giving importance to directive principles has been slow and has not shown the do sued effect of removing economic, social and political injustices, nor h as the tendency or wealth being concentrated in a few, hands been retarded. Prohibition has proved a sad experience as states find themselves caught in the dilemma of practical difficulties and loss of revenue. Political parties are reluctant to agar to structural changes in the existing property relations because they do not want to hurl their vote banks.

* Part IV of the Constitution (Article 36-51) provides the Directive Principles of Stale Policy.
* The Philosophy of Directive Principles has been taken from the Constitution of Ireland.
* Dr. Ambedkar described the Directive Principles as the "instrument of instructions."
* Articles 38, 39, 41, 42, 43 and 45 are based on the socialistic ideas.
* Articles 39 (a), 43 (a), 48 (a) have been inserted by the 42nd Amendment to accentuate the socialistic bias of the Constitution.
* The Janata Government sought to implement the promise of economic justice and equality of opportunity assured by the Preamble by inserting section 2 in Article 38 by the 44th Amendment Act, 1978.
* Fundamental Right to property was eliminated by the 44th Amendment Act, which pared the way for confiscatory taxation, and for equalizing salaries and wages for different vocations and different categories of work.
* Directives are non-jusliceable.
* Directive Principles cannot override Fundamental Rights. Fundamental Rights air superior.
* Various Acts like Employers State Insurance Act. Minimum wages Act, Wealth Tax Act, Estate Duty Act etc. were passed to give effect to the Directive Principles.
* The attempt to confer a primacy upon the Directives as against the Fundamental Rights has been foiled by the majority of the Supreme Court, in the Minann Mills Case.
* For the promotion of cottage industries (Article 43) the central government has established several boards to help the state government.
* Legislation for compulsory primary education (Article 45) has been enacted in most of the states and in the Union Territories.

Kamaluddin Khan

Leccturer,

Patna Law College,

Patna University Patna.