Directive principles of state policy and their relationship with

Directive Principles of Our State Policy: Part IV (Articles - Clear IAS

directive principles of state policy and their relationship with

The Fundamental Rights and the Directive Principles of State Policy enshrined in Parts III and IV of the Constitution of India are designed to be supplementary. The Directive Principles of State Policy (DPSP) are the guidelines or principles given to the . for the promotion and maintenance of international peace and security, just and honourable relations between nations, respect for international law. the Directive Principles of State Policy and their relationship with the Fundamental Rights in the Constituent Assembly at the time of framing the Constitution.

These features are a source of legal superiority of the latter over the former. In the case of the State of Madras, Vs. The directive principles have to conform to and run subsidiary to the chapter on fundamental rights.

The courts have accepted viewpoint that the directive principles are subsidiary and not supreme over the fundamental rights. Fundamental Rights have been achieved whereas Directive Principles are yet to be achieved. With the inauguration of the Constitution, part III containing the fundamental rights of the people become operative and people got these constitutionally guaranteed and enforceable rights since the day of the implementation of the constitution.

On the other hand, the directive principles of state policy are yet to be attained. Some laws have been enacted to implement some of these principles but most these are yet to be secured by the state. There is legal force behind Fundamental Rights whereas Directive Principles have the force public opinion. The constitution clearly vests the fundamental rights in a constitutional and legal basis and makes these provisions enforceable by the courts.

These are binding on the state. Their violation is an offence.

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On other hand, Directive Principles have been denied a legal basis by the constitution. But the Directive Principles enjoy widespread support of public opinion.

The State finds it essential to work for the implementation of these principles under the pressure of public opinion. For State and Citizen: Fundamental Rights are for citizen whereas Directive Principles are for state.

The fundamental rights are given to the people of India so that they may be able to develop their personalities whereas Directive Principles are the directives for the state which would keep in view while formulating national policies. They guide the state in the formulation of national policy. Due to difference in the nature of fundamental rights and directive principles of state policy there has been tension in the mutual relationship between Part III and Part IV of the constitution.

Fundamental rights as enshrined in Part III of the constitution the civil political dimension of Indian democracy. These stands constitutionally granted and guaranteed. The directive principles as enshrined in Part IV of the constitution constitute the socio-economic dimension of the Indian democracy which the state is to achieve through appropriate legislation. No one as such can question the attempts of the state to implement the directive principles.

However, the existence of some conflict between some of the fundamental rights and directive principles, at times, makes the attempts controversial. In the past, the Right to Equality, the Right to freedom and the Right to property as contained in Articles 14, 18, 19, 22 and 31 respectively often got involved in a controversy with several laws which were enacted by the state for implementing the Directive principles contained in articles 39 b and 39 c and others.

Article 19 1 g guarantees the freedom to practice any profession or carry on any profession, trade or business but Article 47 calls upon the State to introduce prohibition and to ban cow slaughter. Fundamental Rights do not include the right to work, education and public assistance but Article 41 of Part IV calls upon the State to make effective provisions for securing these.

Article 15 1 prohibits discrimination.

directive principles of state policy and their relationship with

These Articles often make the implementation of the Directive Principles under Article 46 difficult which all upon the State to take special care for protecting the educational and economic interests of the weaker sections of the people. This feature has been a source of conflict between Fundamental Rights and Directive Principles. Indian Constitution on the one hand declares that the Directive Principles of State Policy are not justiciable but on the other hand observes that these will be fundamental in the governance of the country.

It makes a responsibility of the State to implement the Directive Principles through appropriate legislation. In doing so, government often finds itself limited by existence of constitutionally guarded and legally sanctioned fundamental right of the people. Because of these two major reasons, there has been present the problem of relationship between the Fundamental Rights and Directive Principles of State Policy.

There exists a discernible difference between the perceptions of the Parliament and the Supreme Court over the issue of the relationship between these two vitally important parts of the Constitution. The Parliament, while recognising the importance of Fundamental Rights, has all along been guided by the view that it was the responsibility of the State to implement the Directive Principles.

Without implementing these Principles, the socio-economic dimension of India democracy is bound to remain incomplete and without it the State cannot achieve the objectives set-forth by the Constitution.

directive principles of state policy and their relationship with

The Directive Principles of State Policy represent the will of the founding fathers, the demands of the public opinion and the imperative necessity of a democratic policy committed to secure the socialist goals through effective legislation. The attainment of Directive Principles is a sacred duty of the State.

For discharging this responsibility the State can, if need be, amend the rights contained in the chapter of Fundamental Rights. The Parliament has always asserted its right to amend every part of the Constitution in accordance with the procedure laid down in Article It has upheld the view that Fundamental Rights can be amended if need be, for implementing the Directive Principles.

By this amendment, the Parliament reasserted that Fundamental Rights are amenable and that Parliament had the power to amend every part of the Constitution in accordance with Article Similarly through the 25th Amendmentthe Parliament gave a serious blow to the right to property and in this matter limited the jurisdiction of the Supreme Court.

Article 31 c was inserted which held that laws made by the Parliament and the State legislatures for implementing the Directive Principles contained in Article 39 b and c could not be held void on the ground that these violated the Fundamental Rights mentioned in Articles 14, 19 and With the 42nd Constitutional Amendmentthe scope of Article 31 c was enlarged and provision was made that all the Directive Principles shall have primacy over the fundamental rights given under Articles 14, 19 and 31 and the laws passed with a view to enforce them shall not be declared void by any court on the ground that they are inconsistent with the fundamental rights given under Article 14, 19 and In this way the Directive Principles secured precedence over the fundamental rights.

Under the 44th Constitutional Amendment, all the Directive Principles continued to enjoy primacy over fundamental rights given under Articles 14, 19 and By this Amendment, the Right to Property was excluded from the list of fundamental rights and Articles 19 1 f and Article 31 connected with this right were deleted. In the Minerva Mills vs. Indian Union case on May 3,the Supreme Court in one of its historic judgment once again gave precedence to Fundamental Rights over Directive Principles.

The Supreme Court declared unconstitutional the section 4 of the 42nd Constitutional Amendment Acts, which gave primary to Directive Principles over Fundamental Rights on the ground that it was ultra-virus to the basic structure of the Constitution. It may well be that the distinction between rights and directives is a matter of degree rather than type.

directive principles of state policy and their relationship with

Bearing this caveat in mind, let us examine some of the key features of constitutional directives. First, directive principles are constitutional. There are no doubt examples of comparable directives contained in legislation, which may or may not have a constitutional character, 16 but in this article, I am particularly interested in the reasons that framers of big-C constitutional codes have for incorporating directive principles.

This feature also distinguishes them from mere moral or political norms, at least in the sense that directives are posited social facts that can be found in constitutional documents.

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Through them, framers intend to impose certain duties on the political organs of the state. Third, these directives are primarily addressed to the political organs of the state, i.

In most constitutions that contain them, their non-justiciability is expressly provided for in the text. In other constitutions, such exclusion may be through implication or convention. But the key design feature of the directive principles is that they are primarily addressed to the legislature and the executive.

Fourth, they are programmatic rather than being exclusively performative. A per- formative act is one that may be performed simply by an utterance.

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Programmatic acts are different, even though they may have a performative dimension. Mere utterance does not secure their realization. There is a time lag between the performative adoption of the goal and its realization. Sometimes this gap may be short: A program to set up a new administrative machinery might take longer. Social transformation of the sort that directive principles seek is programmatic in a more complicated sense: Fifth, as already seen, directive principles set out a transformative agenda for the state being constituted.

By transformative constitutionalism, I mean a long-term project of constitutional enactment, interpretation, and enforcement committed.

Transformative constitutionalism connotes an enterprise inducing large-scale social change through nonviolent political process grounded in law. But some transformative efforts could and, as we will see in the Indian example, did travel in different directions. Second, Klare writes in the context of the South African constitution, which expressly rejected non-justiciable directive principles in favor of a more rights-based and judiciary-led transformation.

On this understanding, directive principles clearly qualify as tools in the service of transformative constitutionalism. They are not the only tool, as the South African example demonstrates. They may not even be the best tool for the purpose, although their relative efficacy in securing the constitutionally mandated transformation is not a question this article is concerned with.

Finally, and importantly for our purposes, directives perform an expressive function. Constitutions are expressive documents generally, and several parts—such as preambles, recitals, and rights—have especial expressive salience. The expressive role of constitutional directives has been highlighted by scholars relatively recently.

Directives are a unique halfway house: The symbolism of preambles and fundamental rights go to the heart of the character and identity of the state, in a manner that is not necessarily true of mutually contradictory directive principles. This calibrated expressivism makes directives an especially useful tool for recognizing even those agendas that might be against the spirit of the constitution as a whole.

India at its founding: It is no more a united nation than the Equator. The Indian polity at its founding witnessed deep disagreements—not only in the sense that the dissenters were politically significant but also that the dissent concerned fundamental matters and was strongly felt, strongly enough to potentially get in the way of their accepting the constitution. The transaction cost of agreeing upon a constitution is, therefore, very high.

Directive Principles of Our State Policy : Part IV (Articles 36-51)

Our narrative of a divided India framing its constitution starts in the middle: The document had drawn upon a long history of proto-constitutional thinking in India, primarily in the Congress Party, leading up to independence in August ; 32 and on comparative constitutional practices, mainly from Western democracies. I will refer to the group of influential members of the assembly—such as Ambedkar, Nehru, and Gopalaswamy Ayyangar—who were senior politicians involved in various sub-committees of the assembly, as the defenders of the DC.

directive principles of state policy and their relationship with

To the extent that this is an ideologically coherent group, they were pragmatists who subscribed to democratic constitutionalism. It became clear quickly that these three challengers had to be carried along if the constitution were to be acceptable to all.

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The labels I have stuck on the dissenting groups are rather loose, and not unproblematic. Even so, the labels are a useful heuristic. Each of them had a strong presence within the broad church that Congress was, but socialists and the cultural nationalists were also influential outside the Congress Party. The socialists benefited from the global political turn leftward after World War II that intensified with the start of the process of decolonization around the same time.

Cultural nationalists hoped to find their strength in the Hindi-speaking Hindu majority of the partitioned country. Let us start with the socialists. These members of the assembly, like D. Their key demands included a constitutional mandate for the nationalization of the means of production, prohibition of private monopolies, co-operative organ- ization of industry and agriculture, and other such socialist economic policies.

The Nehruvian vision of a strong, cosmopolitan state with a centrally planned economy—that the DC facilitated—was particularly at odds with the Gandhian ideal of an anti-modern, anti-state autarky.

Although the main cultural nationalist party—the Hindu Mahasabha—was nominally absent from the assembly, three of its members were elected on other platforms, including two on the Congress ticket. Saksena moved an amendment to enshrine a whole new Chapter 1A to the DC, which was essentially a Hindu—Hindi majoritarian cultural manifesto for the identity of the new state.

We do not want it to be said that there are two cultures here. Each of these influential dissenting groups found little to be pleased about, and wrecking amendments were moved to the very first provisions of the DC. Even so, these groups did agree with the defenders on two things. First, almost all members of the constituent assembly signed up to democracy, and were united in their strong preference for politics over violence as the mechanism for resolving their disputes.

Post-partition bloodshed did not leave much appetite for more. The main exception to this consensus against violence was the Communist Party of India, which—although marginally represented in the constituent assembly—launched an armed insurrection inonly to withdraw it in to fight the first general elections. The great storyteller Manto passed a devastating verdict on the reform-oriented Government of India Act The political context of the late s postcolonial India was also relevant: Mahatma Gandhi had recently been assassinated by a Hindu nationalist, Partition riots had seen mass population transfers and the murder and rape of millions of people across India and Pakistan, the new nation-states had already been to war over Kashmir, the fear of a Communist uprising was rife, 60 Cold War between the USA and the USSR had begun on the heels of the disastrous World War II, 61 and a few of the semi-autonomous princely states were toying with independence.

All this at a time when the colonial state had partitioned the country on religious lines and transferred power in such a remarkable hurry and with such unconscionably meager preparation that any new indigenous administration would have had enough on its plate even without the accompanying litany of horrors.

They hoped not only that the constitution would endure, 64 but also that it would secure a state that would strive towards their respective partisan utopias. Directive principles in the Indian Constitution Directive principles emerged as a potential tool to secure the consent of the three dissenting groups—socialists, Gandhians, and cultural nationalists—soon after the assembly started its consideration of the DC. As early as November 5, a day after the discussion on the DC began, Ambedkar assured the socialists that much of their agenda was already contained in the chapter on directive principles; 65 Ananthasayanam Ayyangar—another prominent leader not to be confused with Gopalaswami Ayyangar—argued on the same day that the faction-ridden village life needed to be gradually prepared for democratic principles, requesting the withdrawal of decentralization amendments in lieu of a promise that he himself would move an amendment to that effect as a directive principle.

During these eight sessions, the hostility of the three groups to the DC had become more than apparent. Towards the end of the session on November 18,the Vice President, who was chairing the session, declared that the discussion on the following day—November 19—would open with the consideration of part IV of the DC containing the directives, rather than the structurally prior parts II and III relating to citizenship and fundamental rights, respectively.

Some members understandably protested against this sudden and inexplicable change of schedule. Whether this change in schedule was designed to get the hostile groups on board before moving on to the other parts of the constitution is unclear from the debates, but we have good reasons to speculate. India borrowed the concept of directive principles from the Irish Constitution and the International Bill of Rights drafted by Hersch Lauterpacht in Some, however, such as the directive to promote the spread and enrichment of Hindi language, may be found elsewhere.

Some directives—concerning foreign policy in the Cold War world, 69 protection of national monuments, 70 and separation of the lower judiciary and the executive 71 —are not included in the classification that follows as they are not directly relevant to the account in this article.

The agreement-sensitive classification that follows tracks the degree of consensus around specific directives, rather than disagreement over the status and place of directive principles generally. Some members were against the whole idea of directive principles: An agreement-sensitive classification results in three categories of directives: The second category—the partially contested directives—saw broad agreement over the general goal of achieving social, economic, and political justice but deep disagreement over the best means to secure that.

In the final category were the deeply contested directives, the legitimacy of whose very goals were seriously disputed, and almost all of which were later additions to the DC. The first class of these directives the uncontested directives includes those over which there was no or negligible disagreement in the assembly: These directives were contained in the DC and made it to the final document more or less unscathed.

The most important set of directives in this category relate to a basic social minimum, guarantees that are part of Rawlsian constitutional essentials. These included the right to livelihood, 77 equal pay for equal work for men and women, 78 right to work and unemployment benefit, 79 maternity relief, 80 a living wage, 81 and free and compulsory education for children.

  • Directive Principles

For this category, there is a broad agreement in the assembly over a general aim that the state should seek, encapsulated in article