Directive Principles of State Policy - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC

UPSC: Directive Principles of State Policy - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC

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DIRECTIVE PRINCIPLES OF STATE POLICY

Fundamental Rights'(Part 111 of the Indian Constitution) that were discussed in the earlier chapter are the bedrock of political democracy. They ensure, with the help of individual rights, that democracy prevails and the roots of democracy run deep. They are essential for individual development - essential for an individual to attain full physical, intellectual, moral and spiritual development.

Political democracy , however, remains fragile unless the socio-economic foundations are strengthened with policies that aim to establish a welfare state. Welfare State is a government that takes primary responsibility for the welfare of the people particularly those who are weak and vulnerable. It is a state that aims to minimize disparities and ensure equitable development . Individual rights can be effectively enjoyed and become meaningful only when social security and economic well being are ensured. DPSPs aim at creating a new socio­economic order to provide a firm foundation to political democracy in India

Directive Principles of State Policy are contained in Part IV of the Indian Constitution in Art.36-51. These are instructions/directions given to all present and future governments in India-federal and state governments to make policies and legislation incorporating these principles. DPSPs, thus guide public policy.

Influences

The concept of Directive Principles as incorporated in the Constitution of India, is influenced by various factors. Firstly, DPSPs as an idea was borrowed from the constitution of Ireland. Secondly, Government of India Act, 1935 contained a set of such “Instruments of Instructions”. Thirdly, the leadership of the freedom struggle representing liberal democratic ideas of the west chose to include them in the Indian Constitution as moral guidelines for the public policy of the welfare state. That is, DPSPs were intended to help the Government play a positive role in rebuilding India as a model democracy with socialist content. Fourthly, the contemporary socialist ideas had impacted the framers of the constitution. For example, the DPSPs related to worker welfare, elimination of inequality etc. Fifthly, the Constituent Assembly was influenced by the ideas of Mahatma Gandhi like Panchayatraj, promotion of village industries etc.

It is necessary to note that in Part III of the Indian Constitution-Fundamental Rights-some important economic and social rights were not originally included , such as : right to work, right to education, social security etc . These rights found place in the Directive Principles.However, as Indian democracy strengthened and economy grew, the State found the need and resources to shift some of these DPSPs into the Chapter on FRs. For example, the right to education is today an FR. Right to work since 2005 has been a limited legal right- limited to the rural adults and also limited because it is available for only 100 days in a vear(MGNREGA).

Constitution of India declares that DPSPs are “fundamental in the governance of the country”( Art.37). Both the Legislature and the Executive should apply DPSPs while making and implementing policies in social and economic spheres.

Classification of Directive Principles

DPSPs are very comprehensive in their scope to include almost all aspects of socio-economic change . They guide State activity in political, economic, social, environmental, educational, cultural and international areas. The DPSPs can be broadly classified into the following categories

  • Socialistic
  • Gandhian
  • Social
  • International
  • Others

DPSPs and Socialism

Socialism is a worldview in which the Government makes policies that aim to minimize inequalities. Government does so by public ownership of means of production. The aim is to prevent concentration of wealth in a few hands, it grants right to work to the people and actively intervenes in the socio-economic affairs in favour of poor and vulnerable like elderly and women.Since the 11th Five Year Plan(2007-12), the goal of inclusive growth is being actively followed by the government to achieve socialist society.In the 12th plan(2012-17), the aim is to make planning “more inclusive”.

Socialist policies are necessary in an underdeveloped country like India with large section of the population being poor.

DPSPs that are socialistically oriented are

  • Art.38
  • Art.39
  • Art.41 . • Art.42
  • Art.4 3
  • Art.45
  • Art.46
  • Art.47

The above DPSPs direct the State to make policies for distribution of wealth; legislate on right to work and education; living wage which is equal for equal work; care of the weaker sections. The state is mandated to legislate for securing right to work, right to education and right to public assistance in case of unemployment, old age, sickness and disablement.

Gandhian Principles

The philosophy of -Mahatma Gandhi centres around empowerment of people through decentralization of political power to villages and economic power to the village industries. It is embodied in the traditional Indian institutions of participatory governance called Panchayatraj and Nagarapalika bodies. The economic democracy that Gandhian ideals speak of is based on cottage and villages industries as they are labour-intensive; help in dispersal of power -geographically and also in terms of economic benefits'; and prevent concenfration of wealth.

- Further, Gandhiji advocated banning of cow slaughter and banning consumption of intoxicating substances. The above elements of Gandhian ideology are found in the DPSPs in the following Articles of the Constitution

  • Art.40( Panchayatraj)
  • Art.43( Village and cottage industries)
  • Art.47( prohibition)
  • Art.48( banning of cow slaughter)

DPSPs and Social Integration

DPSPs encompass a wide range of State activity. They impose social obligations on federal and the State Governments which are to be enacted into law.

Gender disparities; caste exploitation; inter-religious divergences on vital areas of social life like marriage and succession; backwardness of certain social sections like the Dalits are some of the social areas in need of change. While Fundamental Rights address some of the above problems on a justiciable basis( Art. 15, Art. 16 and Art. 17), DPSPs contain instructions to the Government to eradicate these social imbalances with public policy-

  • Protection and development of chi ldren( Art.39 and 45)
  • Right to education(Art.41)
  • Art.42( maternity relief)
  • Art.44 ( uniform civil code)
  • Early childhood care and education(ECCE)(Art.45)
  • Art.46( welfare of weaker sections)
  • Art.47( improvement of health standards)

International Relations

Indian foreign policy, since Independence, has stood for peace in the world and multilateralism. Our initiation of the non-alignment as the bedrock of foreign policy to defuse global tensions and build a independent and stable base for national development is a classical example. Our support for decolonization, opposition to apartheid and advocacy of democratization of United Nations and universal and non-discriminatory disarmament are consistent with Art.51 which says the following

The state shall:

  • Promote international peace and security
  • Aim at the settlement of international disputes by Arbitration.
  • Also aim at maintaining just and honourable relations with other countries.

Thus, seeking international peace and cooperation is a Constitutional directive.

Others

There are other Directive Principles which deal with important areas of governance like separating the judicial powers from executive so that there is no arbitrary administration and civil liberties are safe( Art.50). Also, preservation of cultural and historical sites (Art.49 ) Workers’ participation in management ( Art.43A) and environmental directives ( Art.48A ) are other examples.

Characteristics of DPSPs

  • Amplification of Preamble
  • Socio-economic justice
  • Guidelines for pubHc policy
  • Non-justiciable                                                               '

DPSPs elaborate on Preambular values

Socialist democracy is enshrined in the Preamble to the Indian Constitution. In fact, the word socialist’ was incorporated into'the Preamble by the 42nd Amendment Act 1976. Socialism is elaborated in Art.38 and 39. Democracy is given full meaning by the 73rd and 74th Amendment Acts in 1992 with Panchayat and Nagarapalika bodies being given Constitutional status and enforceability. Secularism is found in Art.44 where the goal of uniform of civil code is mentioned. Social justice is also substantially contained in the Part IV as seen above.

Preamble commits the government to equality- social, political and economic. It is given substance by Art-,38 and Art.39 where redistribution of material resources for the entire community is promised.

DPSPs and economic justice

The Constituent Assembly chose welfare state over the minimalist state. Minimalist state discharges law and order responsibilities internally and keeps security from external threats. Government , under minimalist or laissez faire state, does not take up socio-economic interventions.

DPSPs guide public policy to distributive.justice where resources of the country are to be meant for the welfare of all. DPSPs differ from FRs in the sense that the former have economic content - prevent concentration of economic resources( Arts.38 and 39); promise right to work( Art.41); social security for the vulnerable sections like sick and old-aged( Art.41); just and humane conditions of work( Art.42); labour-intensive growth process( Art.43) and so on. FRs deliver on political democracy, largely.DPSPs are not justiciable. DPSPs are positive- require Government to act. DPSPs guide governance(Art.37)

DPSPs are non-justiciable

The Sapru Committee appointed by an "All Parties Conference" in 1944 submitted its report in 1945. Constituent Assembly drew from its recommendations in formulating the Fundamental Rights and other rights in the Indian Constitution.

Sapru Committee suggested two categories of individual rights- justiciable and non- justiciable. The former are found as FRs and other rights in the Indian Constitution .The latter are mentioned in Part IV of the Constitution as DPSPs which are largely in the nature of 'instruments of instruction’-to the Government for making appropriate policies of socio­economic change.

Art.37 says that DPSPs are non-justiciable but are fundamental to the governance of the country. They are moral guidelines to the government to make positive socio economic policies for inclusive growth. DPSPs are not mere pious declarations. It was the intention of the framers of the Constitution that DPSPs should guide the Stale for socio-economic and political reconstruction of the country. Same is stated in Art.37.

The reason for making the DPSPs non justiciable are the following

  • Economic resources may not permit. For example, right to work
  • Social and political development may not be adequate. For example, uniform civil code
  • They are moral in nature and can not be legally imposed: banning cow slaughter and prohibition
  • Administrative and economic constraints . For example, free and compulsory education for children in 10 years after the commencement of the Constitution(Art.45)

Guidelines to public policy

Public policy is essentially the policy of the Government. Public policy is made by the Executive conventionally, at times with a legislative Act made by the Parliament.Certain important government policies have been enacted by parliamentary laws: education, labour, environment etc. Judiciary also contributes to it- education, food etc. But largely, it is the privilege of the Executive. DPSPs deal with the public policy that aims^ at socio-economic change which in a developing country like India is largely aimed at removing the hardships of the weak, ft also has environmental dimension.

Judiciary considers DPSPs as an important moral input in .government policy. In fact, the Supreme Court, starting from Keshavananda Bharati case verdict in 1973 ruled that DPSPs can be a source of reasonable limitation on Fundamental Rights in pursuit of public interest.The same was reinforced in the IR Coelho verdict(2007) dealing with the Ninth Schedule.

DPSPs influence a wide gamut of government policies- economic policies like agrarian reform; banking and taxation policy; employment generation; political decentralization; closing gender disparities; factory legislation; unifying personal haws; pre-school child care; environmental stability; prohibition; and divesting the executive of its judicial responsibilities and powers.

DPSPs in detail

Art. 36. "the State" has the same meaning as in Part Ill(Fundamental Rights)

Art.37. DPSPs are not enforceable by any court( in case of non-implementation, courts can not be moved), blit the principles therein laid down are fundamental in the governance of the country and it shall be the duty of the State to apply these principles fn making laws.

Art.37

DPSPs are fundamental to governance(Art.37) means that the. government needs to keep in . consideration these ideals while making laws. Similarly, the courts also give importance to DPSPs while adjudicating on laws. A law may be struck down if it goes against DPSPs.

The Government has an obligation to implement these principles. The language used is indicative of the obligation of the State to implement DPSPs.

Art.38. State to secure a social order for the promotion of welfare of the people

  • The State shall secure a social order in which justice, social, economic and political, shall inform all the institutions of national life.
  • The State shall, minimize the inequalities not only among individuals but also amongst groups of people

Art.39. Certain principles of policy to be followed by the State:- The State shall, in particular, direct its policy towards securing

  • the right to an adequate means to livelihood;
  • that the ownership and control of the material resources of the community are so equitably distributed that
  • concentration of wealth is prevented
  • that there is equal pay for equal work for both men and women;
  • children are not forced by economic necessity to enter avocations unsuited to their age or strength;
  • that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that children are protected against exploitation .

Art.39 A. Equal justice and free legal aid.- The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Legal Aid implies giving free legal sendee to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority.Unless legal aid is given to needy, due process of law may have been compromised- Afzal Guru who was hanged In February 2013 claimed that at the trial court stage , he did not have legal assistance and so the case turned against him and led to his death sentence.

Legal aid is provided in Article 39A and thus is a constitutional obligation of the state and right of the citizens.Justice Krishna Iyer regards it as a catalyst that enables equality of opportunity. Art. 14 and Art.2l and Art.22 implicitly contain it, the latter confired in various apex court verdicts.

Article 39 A of Indian constitution says thatx'It is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who cannot access justice due to economic and other disabilities."

Legal Services Authorities Act, 1987 and the basis for providing Legal Aid

Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal services to the eligible persons. Section 12 of the Act reads as under:-

Every person who has to file or defend a case shall be entitled to legal services under this Act If that person is-

  • a member of a Scheduled Caste or Scheduled Tribe;
  • a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;
  • a woman or a child;
  • a mentally ill or otherwise disabled person;
  • a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster;
  • or an industrial workman; or
  • in custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home within the meaning of clause
  • of section 2 of the Juvenile Justice Act, 1986 (53 of 1.986) or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987);
  • in receipt of annual income less than a prescribed amount.

National Legal services authority is the apex, body constituted to lay down policies and principles for making legal services available under the provisions of this act to frame most effective and economical schemes for legal services. It also disburses funds and grants to state legal services Authorities and NGO's for implementing free legal Aid schemes and programmes.

In every state. State legal authority is constituted to give effect to the policies and directions of the central Authority (NALSA) and to give legal services to the people and conduct Lok Adalats in the state. State Legal services Authority is headed by the chief Justice of that High court. A serving or the retired judge of the high court is nominated as its executive chairman.

District legal services authority is constituted in every district to implement legal aid programmes and schemes. The district judge of that particular district is its ex-officio chairman.

Taluk legal services committees are constituted for each of the Taluk or Mandal or for groups of Taluk or mandals to coordinate the activities of legal services in the Taluk and to organize Lok Adalats. Every taluk legal services committee is headed by a civil judge operating within the jurisdiction of the committee who is its ex-officio chairman.

Right to get legal-ajd starts from the time the accused is arrested. If the person is not aware of this right then it is the duty of the Magistrate to inform the person about this. It is the duty of the police to inform the nearest ‘legal aid’ committee also about the arrest of an accused seeking legal aid for the first time and this goes on whenever the person is brought in for questioning.

When can the free legal aid be denied?

  • Contempt of court
  • Lying under oath
  • Proceedings related to elections
  • Cases where the fine imposed is not more than Rs. 50.
  • Economic offences and offences against social laws
  • Defamation
  • Proceedings related to elections

Art.39.d

Article 39(d) of the Indian Constitution states that the state shall, in particular, direct its policy towards securing that there is equal pay for equal work for both men and women. Supreme Court ruled in Grih Kalyan Kendra Workers" Union vs Union Of India And Others (1991) that “Equal pay for equal work is not expressly declared by the Constitution as a Fundamental Right but in view of the Directive Principles of State Policy as contained in Art. 39(d) of the Constitution “equal pay for equal work” has assumed the status of the Fundamental Right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 of the Constitution”. The Court further observed:“Directive Principles as even pointed out in some of the Judgments of this Court, have to be read into the Fundamental Rights as a matter of interpretation”.

Art 40. Organisation of village panchayats.- The State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.

Art 41. Right to work, to education and to public assistance in certain cases.- The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Right to work

In a country with high level of unemployment, there is a need for right to work as a measure of social justice. Art.41 commits the Government to it. However, Art.41 says that right to work can be given within the limits of economic capacity and development. In other words, if the government has resources and the development paradigm permits the same, the right can be given. It will help create assets; remove poverty; lead to better use of human resources; and social indicators will improve.

The MNAREGS since 2006( Parliamentary Act was made in 2005 and it became operational in 2006) which is operating in the entire country since 2008 partially fulfills Art.41.

Art 42. Provision for just and humane conditions of work and maternity relief.- The State shall make provision for securing just and humane conditions of work and for maternity relief.

Art 43. Living wage, etc., for workers.- The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.

Living wage means the wage necessary for a person to achieve certain specific standard of living. It is different from minimum wage which ‘is set by law and may not meet the requirements of a living wage.

Art 43.A Participation of workers in management of industries.- The Statfe shall take steps, by suitable legislation or in any other way, to secure the participation' of workers in the management of undertakings, establishments or other organisations engaged in any industry.

97th amendment to the Indian constitution inserts a new directive principle into Part IV of the constitution, Article 43B, which reads: “The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies”. The amendment came into force in January , 2012. Gujarat High Court however struck down portions of the Amendment Act as it encroached into state subject.

Art 44. Uniform civil code for the citizens.- The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

Uniform Civil Code

Personal laws

Personal laws relate to marriage, divorce, maintenance, succession, and adoption; they also have tax and other implications. A secular and democratic society requires common law that fosters national and social integration. Art.44 directs that "the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

Rationale for the UCC

The reasons given for endeavouring for the UCC are the following

  • Separate personal laws can be the basis for sub-national identities
  • lntra and inter religious differences in inheritance, marriage etc are against social harmony
  • As there is a common criminal law, there should be common civil code as well
  • UCC makes sure that women who are given a subordinate status under all religions , attain equality. Thus, legal gender empowerment also requires UCC.

At the same time, Constitution does recognize the fact that UCC can only be introduced on voluntary demand but not imposed, in the long term social and national interest. If it is imposed,

it can divide thd society and communalise it. It* is felt that with social and political development. UCC could be gradually implemented as different religions will volunteer to adopt it. Otherwise, it may be seen as an imposition and rejected. That is the reason for its incorporation as-a DPSP which is non-binding but fundamental to governance of the country.

Even though personal laws are not codified in India, there have been many attempts at reforming these laws . For example, Special Marriage Act, 1954- under which men and women have same rights as it is religion-neutral. Two, progressive verdicts of the courts also made personal laws more gender sensitive.

Personal Laws and the status of women

The Hindu Succession Act makes provision for a Hindu Undivided Family to ensure that property remains with the male line of descent. A son gets a share equal to that of his father; a daughter gets only a share in her father's share. She cannot reside in the family home unless she is single or divorced, and cannot claim her share of property as long as the men of the family continue to live in it. A woman's right to agricultural property is also similarly restricted to "prevent fragmentation of landholdings." The law is changed as detailed ahead.

Some Muslim personal laws have been codified in the Shariat Act 1937, the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of rights on Divorce) Act, 1986. Under the Muslim Personal Laws ,women's right to property is limited to half of what their brothers get. The 1937 Act categorically denies women any right to agricultural land. Polygamy among Muslims remains an issue. Muslim personal law makes man the sole guardian of a child.

Personal laws applicable to Christians were the earliest to be codified. The Indian Divorce Act was amended to give women and men equality in seeking divorce. However, the Roman Catholic Church does not accept divorce under the Indian Divorce Act.

Thus, the personal laws of different religions in India do injustice to women and need changes. It is one of the reasons for adopting UCC.

Hindu Succession Act: 2005 Amendments

The Hindu Succession Act 1956 governs the succession to the property of a deceased Hindu. The Hindu Succession Act is applicable to any person who is a Hindu. It includes Buddhists, Jains and Sikhs within its ambit.

There are mainly two schools of Hindu Law namely the Mitakshara and the Dayabhaga. The Mitakshara school is prevalent in many parts of India, while Dayabhaga school prevails in West Bengal and some of its surrounding areas. Property of a Hindu can be broadly divided into two categories - joint property and separate or self-acquired property. Joint property (coparcenary property) comprises of ancestral property Essentially.

According to the Mitakshara law, only the son,'grandson and great grandson constituted a class of coparceners. Coparcenary is a body of persons within a joint Hindu family consisting of father, son, grandson and so on. Coparcener’s wives or widows and unmarried daughters have no significant rights. Females cannot inherit ancestral or joint property as males can. It is only when a coparcener dies, a female can get her share in her capacity as an heir to his estate. The amendment to Hindu Succession Act in 2005 removes this discrimination.-

Under the amended law, the daughter is given a share in the ancestral property. If a person can be the member of the coparcenary the next stage is that he  or she can become the Karta of the family.

A Karta is the head of the family and hence now it would be possible for daughters to occupy this role. Currently only male members can occupy thisspecific position.

This change can be quite significant in terms of social equations. However all this relates to only coparcenary property. In case of other property there is no restriction on the ability of anyone to will away the self acquired property in any manner that they desire. •

UCC and Supreme Court

Article 44 of the constitution states that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. In the case of Shah Bano Begum v. Mohd. Akeel Khan 1985 a Muslim woman sought maintenance from her husband after their divorce. Being a Muslim, husband had paid her maintenance for the period as required by the personal Muslim Law, but it was held by the Supreme Court that Shah Bano would be entitled to get maintenance under section 125 of CrPC. This decision resented and protested against by several Muslims priests claiming that this decision would harm their personal law and social order. Parliament responded by passing the Muslim Women's (Protection of Rights in Divorce) Act in 1986, a law that essentially provided for maintenance for Muslim women outside the criminal code, thus ensuring that Muslim women were not protected under the constitutional right to equality, and that they could not have the benefit of Section 125 of the Criminal Code.

The second instance in which the Supreme Court again directed the government of Article 44 was in the case of Sarla Mudgal v. Union of India( 1995). In this case, the question was whether a Hindu husband, married under the Hindu law, can become a Mulsim so that he could marry again. The Court said no to such conversion.

The Supreme Court again reminded the government of its Constitutional obligations to enact a UCC in 2003 when a Christian priest moved the Court challenging the Constitutional validity of Section 118 of the Indian Succession Act. His contention was that Section 118 of the said Act was discriminatory against the Christians as it imposed unreasonable restrictions on their right to donate property for religious or charitable purpose by will. The apex court struck down the Section declaring it to be unconstitutional.

Art 45. Provision for free and compulsory education for children.- The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. The above contents are replaced by the 86th Amendment Act 2002 by the followingiThe State shall endeavour to provide early childhood care and education(ECCE) for all children until they complete the age of six years.

Art 46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. State shall protect them from social injustice and all forms of exploitation.

 

Art 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health, and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

Art 48. Organisation of agriculture and animal husbandry.- The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.

Art 48A Protection and improvement of environment and safeguarding of'forests and wild life.- The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

Art 49. Protection of monuments and places and objects of national importance.- It shall be the obligation of the State to protect every monument or place or object of artistic or historic interests, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.

Art 50. Separation of judiciary from executive- The State shall take steps to separate- the judiciary from the executive in the public services of the State.

Separation of judiciary from executive

The need for the separation are

  • It is necessary for independence ofjudiciary
  • It helps in specialization
  • Such separation helps in better governance as there will be more checks and balances based on the doctrine of separation of powers
  • Rule of law also demands that the separation take place as otherwise the judiciary may not be impartial
  • Civil rights are better protected

According to the Law Commission (14th Report, 1958),“... separation means officers will devote their time entirely to judicial duties and this fact leads to efficiency in the administration of justice.”      

The essential feature of the scheme for the separation since Independence was the transfer of purely judicial functions like trial of criminal cases from the collector and subordinate magistrates to a new set of judicial officers who were no longer to be under the control of the collector. Previously, under the CrPC and other relevant codes , the functions of a magistrate fell into three classes.

  • “police” functions,e.g. the handling of unlawful assemblies
  • administrative functions, e.g.'issuance of licenses for firearms and similar functions; and
  • judicial functions, e.g. the triafof criminal cases.

When separation was effected, the judicial functions were transferred to courts. Thus, executive magistrates and judicial magistrates were separated. The former were given functions like sanction of prosecution etc while judicial functions were with the latter.

Art 51. Promotion of international peace and security.- The State shall endeavour to -

  1. promote international peace and security
  2. maintain just and honourable relations between nations
  3. foster respect for international law and treaty obligations in'the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration.

Implementation of DPSPs

Since the commencement of the Constitution, there has been substantial legislation to implement the DPSPs. As detailed below:

First amendment Act is for implementing land reforms. It was followed by the 4th, 17th, 25th, 42nd, and 44th Amendment Acts.

The 73rd Constitution Amendment Act (1992) is in pursuit of the implementing the Art. 40.

In 2005, NREGA was made and is operating in the entire country wince 2008 . It gives shape to Art.41, right to work.

Ajeevika( National Rural Livelihoods Mission) also finds its base in Art.41.

86th Amendment Act 2002 makes provisions for early childhood care and education (Art.45) The food security Bill being.considered is to give effect to Art.47.

NRHM and NUHM are based on Art.47.

There has been much welfare legislation to make the conditions of the work humane for the workers. Factory laws, Industrial Disputes Act 1947 are some examples.

Promotion of the cottage industries has been one of the main aspects of the economic policy of the government and there is in existence the Khadi and the Village Industries Commission for the purpose. 97th Amendment Act 2012 promotes cooperatives which is a Gandhian dream.

The government position as regards the uniform civil code is that the matter being sensitive in the country with its social backwardness , unless the religious groups concerned come forward and voluntarily seek the enforcement of the UCC, it is not desirable to implement the article. Women are brought on par with men in Hindu Succession Act that was amended in 2005. Special Marriage Act 1954 is made to give everyone the option of marrying outside their personal laws.

The policy of preferential treatment in education, administration and economy for weaker sections including women, SCs, STs and the OBC has been a consistent plank of the government welfare pplicy, the most recent being the implementation of the Mandal Commission in pursuit of Art. 46.The 93rd Amendment Act 2006 is a step in the direction of pursuit of Art.46.

Regarding Art. 48, the green revolution and the research in biotechnology are aimed at modernizing agriculture and animal husbandry, among other things. India is permitting genetically modified (GM) organisms and crops like Bt cotton in India for boosting productivity, among other things.

The Biological Diversity Act 2002 is a law meant to achieve three main objectives

  • the conservation of biodiversity;
  • the sustainable use of biological resources;
  • equity in sharing benefits from such use of resources.

The Environment Protection Act. 1986; the Wild Life Act; The National Forest Policy 1988 are some examples for implementation of Art. 48A. Government is taking many steps for countering climate change centrally sponsored programme for climate resilient agriculture(2011). National green tribunal was set up in 2010.

The Archaeological Survey of India, Ministry of Culture, is responsible for archaeological studies and the preservation of archaeological heritage of the country in accordance with the various acts of the Indian Parliament

Separation of judiciary from executive is being done by amending the CrPC. Appointment of judges of High Courts and Supreme Court is being done on the recommendation by a collegiums of judges of the higher judiciary since 1993 , based on Art.50.

The efforts of India to secure international peace are many like participation in the peacemaking operations of the UN is a prime examples of contribution to international peace and security. India has been the largest troop contributor to UN missions since inception. So far (2012) India has taken part in 43 Peacekeeping missions with a total contribution exceeding 1,60,000 troops India pioneered Non Aligned Movement to defuse cold war after the second world war.

Relation between FRs and DPSPs

The FRs and the DPSPs constitute the conscience of the Constitution. The purpose of the FRs is to confer on individuals the rights necessary for their development free from coercion. DPSPs are essential for the welfare society. According to forme CJ1, Justice.Chandrachud, the Constitution aims to bring about a synthesis between the two and together they constitute, not individually, the conscience of the Constitution. The two are complementary and not mutually exclusive.

Since commencement of the Constitution in 1950, the inevitable tension between the FRs and the DPSPs surfaced. DPSPs could not be implemented without the FRs bejng restricted. For example, land redistribution in an unequal society demanded that land be taken from those having in excess and given to those in need of it.But, the affected parties went to court on the ground that their right to property- an FR at that time, was violated.

Parliament has th'e obligation to promote justice by implementing Art.39. When they conflicted-with the FRs- Art. 14 and 19, the laws were challenged anclthe Supreme Court most of the time upheld the parliamentary laws .

Supreme Court in the Shankari Prasad case, 1951 and Sajjan Singh case in 1965 said that Art. 13 did not come in the way of parliament’s power to limit the FRs. In the Golaknath case 1967, however the earlier position was reversed and in the Keshavananda Bharati case , the constituent power of the Parliament was partly restored . In the 42nd amendment Act in 1976, DPSPs were given precedence over the FRs and the same was struck down in the Minerva Mills case verdict (1980) for the following two reasons

  1. it removes judicial review which is a basic feature of the Constitution
  2. FRs and DPSPs have a complementary relation which can not be upset.

The relation between the two Parts is complementary and this relation is a basic feature and can not be disturbed either way. That is the legal position since then. It is to be noted that FRs could be diluted by the DPSPs only if public interest is served(Coelho verdict 2007)

Relevant Judgements and CAAs

  • Shankari Prasad case 1951
  • Sajjan Singh case 1965
  • Golaknath Vs the State of Punjab( 1967) relates to the power of the Parliament to amend the Constitution to a point of abridging FRs, Specifically, the validity of 1st, 4th and 17th Amendments regarding restrictions on the right to property was questioned and the SC Judgement says
  • FRs are given a transcendental position in the Constitution and are not amenable to Parliamentary restriction as stated in Art. 13.
  • A place of permanence is given to FRs in the Constitution.
  • In order to amend Fundamental Rights , a new Constituent Assembly is necessary.
  • Art. 368 provides the procedure to amend the Constitution but does not confer power on Parliament to amend the Constitution.

Doctrine of prospective overruling was applied in the case of the Golaknath verdict and it said that the actions already taken do not become void but the judgement applies to future actions of the State.

24th Amendment Act

The Constitution 24th Amendment 1971 was made to overcome the SC judgement in the Golak Nath case. Its contents are

  • Nothing in Art. 13 bars Parliament from amendjng the Constitution under Art. 368.
  • Art. 368 contains the procedure as well as empowers the Parliament to amend any part of the Constitution.
  • President shall assent to a Constitution Amendment Bill duly passed by the Parliament.

24th Amendment Act, along with the 25th and 29lh judgements was questioned in the apex court and the majrotiy judgement of the 13 judge Constitution Bench in the Kesavanand Bharati Vs the State of Kerala case is as follows

  • 24th Amendment Act is valid.
  • Parliament can amend any part of the Constitution except ‘basic features’
  • The word ‘law’ in Art. 13 does not include a Constitution Amendment Act and includes only ordinary legislation as stated in the Shankari Prasad and Sajjan Singh verdicts

The main question addressed in the verdict, was whether the Parliament had the'power to amend the Constitution without limits or not and the way to interpret Art. 13 and Art. 368.

25th CAA

It gave parliament power to amend any part of the Constitution.

Keshavananda Bharati verdict

It struck down the unlimited power parliament claimed under the 25lh CAA and introduced the doctrine of basic features.         

Minerva Mills case

In the Minerva Mills Ltd. Vs Union of India case 1980, the SC was responding to issues related , among others, to the 42nd Amendment Act 1976 where it gave Parliament unlimited constituent powers, making implementation of some DPSPs unquestionable in the courts of law for violating Art. 14, 19 and 21.

The SC by a majority of four to one ruled that

  • Powers of Parliament to amend the constitution are limited by the basic framework as introduced by the SC in the Kesavananda Bharati case
  • Fine balance between the FRs and DPSPs as found in the Constitution can not be tilted in favour of either.

The relation between the FRs and DPSPs presently is based on the Minerva Mills verdict of the Supreme Court.

DPSPs outside Part IV

In addition to the Directives that are found in Part Four of the Indian constitution, there are certain other directives in other Directives in other Parts of the Constitution addressed to the state and non-justiciable like the rest. They are the following

  • Art.335 says that in reserving jobs for the Scheduled Caste and Tribes in Government, due attention should be paid to efficiency in administration.
  • Art 351 enjoins the state to promote the use of Hindi so that it may be developed as a medium of communication.
  • Art.350A enjoins the state and the local authorities to impart primary education to the linguistic minorities in their mother tongue.

Directive Principles and Fundamental Rights: The differences

Both FRs and DPSPs are essential for a welfare state- democratic socialism. Both aim at building human capital.

  • FRs are essentially individual rights . Directive Principles are in the nature of instruments of instructions to the Government of the day to undertake collective positive actions.
  • The fundamental rights are enforceable in the courts, hence are justiciable. But theDirective Principles are not enforceable in the courts, thus they are non - justiciable. Justiciable means that if Fundamental Rights are violated, the aggrieved individual can move the courts for the protection of their Fundamental Rights. Non-justiciable means that citizens can not go to court to secure implementation of the Directive Principles. DPSPs are made non-justiciable as their implementation requires resources; society may not be ready for their implementation- UCC; they need time for introduction- local self government institutions etc.
  • Fundamental Rights aim at establishing political democracy in India while Directive Principles attempts to provide socio-economic foundations to Indian democracy.

Fundamental Rights and Directive Principles are not opposed but are complementary to each other. Both ultimately aim at the welfare and the well-being of the people. While Directive Principles are non-justiciable, it does not imply that they need not be implemented. They are fundamental to the governance of the country. FRs have legal sanction while DPSPs enjoy moral and political sanction.The real strength of Directive Principles is derived from a vigilant public opinion

In a nutshell, the differences between FRs and DPSPs are

  • FRs are rights while DPSPs are directions to the Government
  • FRs are enforceable( justiciable) while DPSPs are not
  • FRs are essentially individual -centered while DPSPs are group-centered
  • FRs are aimed at creating political democracy while DPSPs aim for an inclusive society that is environment-friendly.

DPSPs and the nature of State obligations

The words as against each obligation, such as “strive to promote” (Art. 38) “direct its policy towards securing” (Art. 39) .... “endeavour to secure......... ” (Art. 43).... “take steps........ ” (Art. 43A) “..... promote the educational and economic interests ...... (Art. 46)” “........ endeavour to raise the level of nutrition........ (Art. 47), all indicate a continuous process of “progressive” implementation of these principles. Therefore, the State cannot adopt any “regressive” measure which will hinder the objective of full realization of these rights.

Supreme Court and the DPSPs

Initially, the apex court allowed the parliament to amend the Constitution in favour of DPSPs, Art. 13 notwithstanding. It permitted the FRs to be restricted to some extent in the process. Later, Supreme Court became activist and gave expnded meaning to Art.21 by readin DPSPs into it.

Since life is not merely “animal existence, it has to be rendered meaningful and imparted a sense of dignity for which DPSPs contribute significantly.

In the case of bonded labourers - Bandhwa Mukti Morcha Case ( 1984 ), the Court said: “It is the fundamental right of every one in this country........ to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Art. 21, derives its life-breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Art. 39 and Arts. 41 and 42,43A, 48A and at least, therefore, it must include protection of the health and strength of the workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity....... ” In Mohini Jain’s Case (1992), right to education was declared an FR. It was till then a DPSP.

Note on laissez fa ire, welfare and socialist state

Welfare state is one where the responsibility of social welfare rests with the State. It seeks to provide employment to the jobless, remove poverty, provide for social security, take care of women and other marginalized sections like SC/STs in India, deepen democracy and institutionalize genuine democracy from the grass roots level, ensure distributional justice and soon.

Laissez faire is a French term meaning "let do, let go, let pass.". It is a form of economic organization where the markets operate with minimal government control.

By contrast with the welfare state, the minimalist state is the ideal of those commentators who criticize social legislation (labour law and social security law) as a source of rigidity which damages competitiveness in economy. The term "nightwatchman state" is also used to describe a minimalist state as it exists in a laissez faire economy. Socialist state is one that owns the means of production and does not permit private property in a significant way.

The document Directive Principles of State Policy - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC is a part of the UPSC Course Polity and Constitution (Prelims) by IAS Masters.
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