Directive Principles of State Policy

INTRODUCTION #

The makers of our Constitution knew that inde- pendent India wasgoing to face many challenges. Foremost among these was the challenge to bring about equal and well-being of all citizens. They also thought that certain policy direction was required for handling these problems. At the same time, the Constitution did not want future government to be bound by that certain policy.

Therefore, some guidelines were incorporated in the Constitution but they were not made legally enforceable. This means that if a government did not implement a particular guideline, we cannot go to the court, asking the court to instruct the government to implement that policy. Thus, these guidelines are ‘non-justiciable’ i.e., parts of Constitution that can- not be enforced by the judiciary. Those who framed our Constitution thought that the moral force behind these guidelines would ensure that the government would take them seriously. Besides, they expected that the people would also hold the governments responsible for implementing these directives. So a separate list of policy guidelines is included in the Constitution. The list of these guidelines is called the Directive Principles of State Policy.

What do the Directive Principles contain? #

The chapter on Directive Principles lists mainly three things:

• The goals and objectives that we as a society should adopt.
  • Certain rights that individuals should enjoy apart from the Fundamental Rights.
  • Certain policies that the government should adopt.

Legal Status of Directive Principles #

Article 37 #

• Directive principles are not enforceable in the court of law.
  • They are “FUNDAMENTAL” in governance of country.
  • It “SHALL BE” the duty of states to apply these principles in making laws.

Objective of introducing Directive principles- According to Dr. B.R. Ambedkar, the Constituent Assembly did not want to give free hand to succes- sive government with respect to public policy. It is like GENERAL will putting restrictions on actual will. The government of the day may be motivated by political calculations but Directive Principles put Constitutional restraints on such motivations.

AMBEDKAR    on    Nature    of    sanction behind Directive Principles #

It is wrong to consider that directives will remain mere aspirations. There is a bigger force working behind Directive which is the force of Public opin- ion. In a country like India where mass poverty, huge disparity in income and wealth and various deprivations exits, no government can overlook these principles.

CLASSIFICATION   OF   DIRECTIVE PRINCIPLES #

Articles 38 – 51 in Part IV of the constitution, deals with the provisions of the Directive Princi- ples. It is easy to grasp the philosophy and nature of Directive Principles, if they are grouped in the following manner:

Principles Promoting Social and Eco- nomic Equality (Socialistic Principles) #

There are certain principles that are very impor- tant for realizing the goals of social and economic democracy in India. Many people in India have been suffering from social and economic inequalities since ages. The following articles in particular, are aimed at ensuring economic and social equality:

1. State to secure a social order for the promo- tion of welfare of the people (Article 38)
   1. The State shall strive to promote the wel- fare of the people by securing and protect- ing as effectively as it may a social order in which justice, social, economic and po- litical, shall inform all the institutions of the national life.
   1. The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in sta- tus, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different ar- eas or engaged in different vocations.
2. Certain principles of policy to be followed by the State (Article 39) – The State shall en- deavour
   1. To ensure for its people adequate means of livelihood.
   1. To ensure fair distribution of the material resources of the country for the Common good.
   1. To operate the economic system in such a way that the wealth and means of produc- tion are not concentrated in a few hands.
   1. To ensure that there is equal pay for equal work for both men and women.
   1. That men, women and children are not be forced by economic necessity to enter jobs and vocations not suited to their age or strength.
   1. Children are given opportunities and facil- ities to develop in a healthy manner and in conditions of freedom and dignity. Youth should be protected against exploitation.
3. The State shall, within the limits of its eco- nomic capacity and development, make ef-

fective provisions to ensure to the people the right to work, education and public assistance in cases of unemployment, old age; sickness and disablement. (Article41).

• The State should make provisions for secur- ing just and humane conditions of work for the workers and maternity relief for women. (Article 42).
• The State shall try to secure for all the work- ers, a work, living wage, reasonable leisure and cultural opportunities. (Article 43).
• The State should try to secure participation of workers in the management of the factory. (Article 43A).
• The State shall endeavour to promote vol- untary formation, autonomous functioning, democratic control and professional manage- ment of the co-operative societies. (Article 43B).
• The State shall endeavour for providing early childhood care and education to all children until they complete the age of 6 years. (Arti- cle 45).
• The State shall promote educational and eco- nomic interests of weaker sections of the peo- ple especially the SCs and STs. (Article 46).
• The State should make efforts to raise the lev- el of nutrition, standard of living and public health. (Article 47)

Principles related to Gandhian Thoughts #

Gandhian thinking promotes a non-violent social order. Swaraj (Self-rule), Sarvodaya (welfare for all) and Swavlamban (self-reliance) are the basic principles of Gandhian thought. His philosophy and actions guided not only our freedom movement but also the framing of the Indian constitution. The following Directive principles in particular reflects Gandhian thoughts:

• The State shall take steps to organize the village panchayats. These panchayats should be given such powers and authority as may be necessary to enable them to function as units of self-government. (Article 40)
• The State shall try to promote cottage indus- tries in rural areas. (Article 43)

• The State shall make efforts to prevent the consumption of alcoholic drinks and Other harmful drugs. (Article 47)
• The State shall try to organize agriculture and animal husbandry on modern and scientific lines and take steps to improve the quality of livestock and ban the slaughter of cows and calves and other milch and draught cattle. (Article 48)

Principles related to International Peace and Security (Article 51) #

The Constitution makers included some princi- ples which provide guidelines to our foreign policy. These are:

• The State shall promote international peace and security.
• The State shall endeavour to maintain just and honourable relations with other nations.
• The State shall foster respect for international laws and treaty obligations.
• The State shall encourage settlement of inter- national disputes by arbitration, i.e. mutual agreement.

Miscellaneous Principles #

Besides, there are some notable Directive prin- ciples which do not come under any of the above mentioned categories. These are as follows:

1. The State shall endeavour to protect and im- prove the environment and to safeguard the for- ests and wild life of the country. (Article 48A)
2. The State shall take steps for the maintenance and protection of the historical monuments, places or objects of national importance. (Ar- ticle 49)
3. The State shall aim at establishing a uniform civil code for all citizens throughout the country. (Article 44)
4. The State shall take steps to separate the Judi- ciary from Executive. (Article 50)

Directive Principles Subsequently Added #

1. Through 42nd Amendment Act, 1976
   1. Equal opportunity for-justice and free le- gal aid.

• To protect the environment, forests and wild animals.
  • Right of workers and to participate in the management of industries.
  • To protect children against exploitation and to provide opportunities for their healthy development in conditions of freedom and dignity.
• Through 44th Amendment Act, 1978
  • “The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in sta- tus, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different ar- eas or engaged in different vocations.” [Article 38(2)]
• Through 86th Amendment Act, 2002, it sub- stituted new article for Article45. Previous ar- ticle provided for education to children aged 6 to 14 years.
  • “The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.”
• Through 97th Amendment Act 2011, added Article 43B.
  • “The State shall endeavour to promote voluntary formation, autonomous func- tioning, democratic control and profes- sional management of the cooperative Societies.”

CRITICISM OF DIRECTIVE PRINCI- PLES OF STATE POLICY #

1. Directive Principles are moral aspirations.
2. According to legal experts, constitution forms the basic law, governing a political sys- tem should not contain such provisions which are not enforceable. It creates ambiguity and sometimes conflict with the parts that are le- gally enforceable.
3. They destroy federal structure of Indian po- litical system. It allows Union Government to legislate on subjects on state list.
4. Some people believe that it is not proper to

limit choices of successive generations with a social contract entered by previous generation.

COMPARISON BETWEEN FUNDA- MENTAL RIGHTS AND DIRECTIVE PRINCIPLE OF STATE POLICIES #

• Fundamental Rights are primarily based on philosophy of “Liberal Individualism”, though their nature is not Libertarian.
  • Directive Principles reflects combination of Ideologies- Fabianism, Welfare-state, Gan- dhism, Hindu-rights, Environmentalism and Internationalism.
  • Fundamental Rights are enforceable. Enforce- ment of Fundamental Right in itself is a Fundamental Right, but Directive Principles are non- enforceable.
  • Fundamental Rights are primarily CIVIL RIGHTS, whereas Directive Principles of State Policies are- SOCIAL AND ECO- NOMIC RIGHTS.

RELATIONSHIP BETWEEN FUNDA- MENTAL RIGHTS AND DIRECTIVE PRINCIPLES #

• Initially there was lack of clarity with respect to relationship and relative status of Funda- mental Rights and Directive Principles. How- ever, nature of relationship acquired clarity with successive judicial interpretations and Constitutional Amendments.
  • Experts like Granville Austin, considers Preamble, Fundamental Rights, Directive Principle of State Policy forming an organic whole in unity. Together they form the soul of Indian Constitution.
  • BN Roy, advisor to Constituent Assembly, also mentioned that they were introduced in Assembly as an integrated scheme, but later on separated into two parts. Many rights of Directive Principles are also presented as set of Fundamental Rights in Motilal Nehru report.
  • The contradiction between two emerged because the two were based on different ide- ologies. Fundamental Rights emphasizing on

rights of individual, emphasizing on freedom, whereas certain Directives aiming to achieve socialistic ideas by redistributing resources, came into conflict with Fundamental Rights.

• Ambiguity emerged because Fundamental Rights were legally enforceable and Directive Principles were not.
  • Supreme Court of India, through creative interpretation of term ‘LAW’, used in Article 13(2) provided a way out.
  • 25th Constitutional Amendment Act, is a remarkable Constitutional advancement to establish the balance between liberty and social and economic equality.
  • Supreme Court upheld validity of 25th C.A.A, (Constitutional Amendment Act) and establish that we have to achieve the balance between the two.

In order to interpret the right balance and to protect constitution, Supreme Court gave Doctrine of Basic structure.

• 42nd C.A.A, considered as MINI CONSTI- TUTION passed under controversial situa- tions introduced certain provisions which can be considered as destroying harmony between Fundamental Rights and Directive Principles and also attacking the Basic structure.
  • Supreme Court in Minerva MILL case, had re-established sanctity of constitution regard- ing Fundamental Rights and Directive Prin- ciples. It restored the balance and has given the Doctrine of ‘Harmonious Construction’.

GOVERNMENT EFFORTS TO FOL- LOW THE DIRECTIVES #

Many Directive Principles of State Policy has been implemented to lay down the foundations of a secular, socialist and welfare state. Actually, no government can afford to ignore these instructions as they are the mirror of the public opinion. Implemen- tation of Directive Principle enhances the credibility and popularity of any government. Some of the steps taken in this direction are being listed below:

• Land reforms have been introduced and Zamindari and Jagirdari systems have been abolished.

• Ceiling has been placed on land and property to fix the limit of person’s holdings.
  • The privy purses of ex-princes abolished. Life Insurance, General Insurance and most of the banks nationalised.
  • In order to reduce economic disparity, Right to Property has been deleted from the chapter on Fundamental Rights. .
  • Untouchability has been abolished. Sincere efforts has been made for the upliftment of the schedule casts, schedule tribes and of other Backward Classes.
  • Panchayati Raj has been given constitutional status. Village Panchayats has been set up and are functioning at village level.
  • Small scale and village industries and Khadi Gram Udyog have been encouraged to bring prosperity to the rural areas.
  • Various programmes for increasing agricul- tural production through Green Revolution and promotion of animal husbandry are given priority.
  • Minimum wages has been fixed in almost all the spheres of employment. Equal wages for equal work for both men and women have been enacted.
  • National Commission for the Welfare of Women has been established. Many laws and welfare schemes has passed to protect women and children, from exploitation.
  • A number of welfare schemes has been imple- mented for the weaker sections including poor and backward classes, scheduled castes and scheduled tribes as well as women. Seats has reserved for them in the Parliament and Vidhan Sabhas.
  • Subsidized public distribution schemes has been launched to help the poor people, Right to Food is enacted.
  • Right to Work is being provided through 100 days of guaranteed work through Mahatma Gandhi National Rural Employment Guar- antee Act (MGNREGA). Various other programmes has launched to boost self and wage employment such as National Rural Livelihood Mission (NRLM).

• In a way Right to Health is being provided through assured supply of generic medicines in government hospitals as well as various health insurance schemes.
  • In a significant achievement the Right to Education for children aged 6 to 14 years has been converted from Directive guideline to Fundamental Right, as Indian State developed capability of doing so.
  • The 42nd constitutional amendment added a Directive principle, which ensures Pro- tection and improvement of environment and safeguarding of forests and wild life. A number of Programmes like Save the Tiger, Project Rhino, Project Elephant, etc. are being implemented in pursuance of the newly added directive principle.
  • India has also been actively co-operating with the U.N. to promote international peace and security.

Thus, it is obvious that a lot of work has been done in the direction provided by DPSP. But still the problems of poverty, unemployment and poor health do exist inequality is on the rising. Major hindrances in the non-implementation of Directive Principles of State Policy are:

• lack of political will on the part of the states.
  • lack of awareness and organized action on the part of the people, and
  • limited material resources.

The spirit of Directive Principles is to improve the quality of life of people. This is a continuous process and the efforts should continue.

RECENT DEVELOPMENTS #

Uniform Civil Code #

Why in news? #

The note, prepared by the Law Ministry’s Legis- lative Department, recommends that the issue of Uni- form Civil Code be referred to the Law Commission to examine pertinent issues and make recommendations.

What it is and present condition #

A Uniform Civil Code essentially means a common set of laws governing personal matters for all citizens of the country, irrespective of religion.

Currently, different laws regulate these aspects for adherents of different religions. For example: A Christian man has questioned a provision that requires a Christian couple to be judicially separated for two years before getting a divorce, whereas this period is one year for Hindus and other non-Christians.

The role of article 14 and 25 in Uniform Civil Code #

By the 42nd Amendment of 1976, India was declared a secular nation. As a result of this, and the understanding of Article 25, the State and its institutions has not interfered in religious practices, including in relation to various personal laws.

There is a view that this principle runs con- tradictory to the idea of secularism which requires the State to be inert to religious considerations and not tacitly support them by following a practice of non-interference, no matter what.

Clause (2) of Article 25 empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice” therefore, it is argued, Article 25 is no bar to having a Uniform Civil Code.

The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures the right to equality. Litigants have con- tended that their right to equality is endangered by personal laws that put them at a disadvantage.

Benefits of Uniform Civil Code #

• The purpose of the Uniform Civil Code is to divest religion from social relations and personal laws, ensuring equality, unity and integrity of the nation and justice to both men and women.
  • All the laws related to marriage, inheritance, family, land etc. would be equal for all Indians.
  • It will help in improving the condition of women in India. Indian society is patriarchal and by allowing old religious rules to continue to govern the family life, condemns all Indian women to subjugation and mistreatment.
  • It will help the society move forward and take India towards its goal of becoming a developed nation where women are treated fairly and given equal rights.

• The various personal laws have loop holes exploited by those who have the power. Infor- mal bodies like Panchayats continue to give judgments that are against our constitution. Human rights are violated through honor killings and female foeticide throughout our country.
  • It will also help in reducing vote bank politics. If all religions are covered under the same laws, the politicians will have less to offer to communities in exchange of their vote.
  • It will help in integration of India – A lot of the animosity is caused by preferential treatment by the law of certain religious communities.
  • This could in time induce custodians of faith to look inwards and seek to codify and reform age-old personal laws in conformity with cur- rent modernizing and integrative tendencies or risk losing their flock.
  • In other countries such as Germany, Italy, Egypt, Turkey, etc., having heterogeneous society, civil code governs uniformly such matters.

The Union Law Ministry sees three chief imped- iments in adoption of the Uniform Civil Code — separatism, conservatism and misconceived notions about personal laws.

• Conservatism which always resists any attempt to progress;
  • Misconceived notions about personal laws;
  • Clinging to the ideas of separatism generated and fostered for a long time under foreign rule.

The note also shows that the government con- siders it “a challenge to reconcile legal uniformity with protection of minority rights” when it comes to having a common set of laws to regulate per- sonal matters such as marriage, divorce, adoption, inheritance, etc.

India has a strong and long history of personal laws and it cannot be given up easily.

A broad consensus must be drawn among different communities to facilitate such a landmark step in India’s religious, social, political and most importantly judicial history.

The biggest obstacle in implementing the UCC, apart from obtaining a consensus, is the drafting. Should UCC be a blend of all the personal laws or should it be a new law adhering to the constitutional mandate? There is a lot of literature churned out on UCC but there is no model law drafted.

Way forward #

Take an evaluation survey of all communities to suggest reforms within personal laws on modern and liberal lines.

Communities should be convinced that UCC is to bring reforms not suppress them. There is need for bringing awareness among citizens through discus- sion, deliberations, and academic seminars among members of various communities.

There is a need of piecemeal reform rather than a holistic reform starting with what minorities are most comfortable of doing away with.

A wide consultation would be required with stakeholders, in addition to an in-depth study of the provisions of personal laws governing different communities.

Khap Panchayat #

Issues regarding Khap Panchayats have been discussed extensively in recent times, because of their extra-constitutional functioning and unjust pronouncements.

Legislative actions taken: #

1. Many states tried to bring legislation to ban Khap Panchayats, but due to lack of consen- sus it has not been passed successfully. Bills banning “Honour Killing” has also been pro- posed by many states.
2. Law Commission had drafted a Bill – The Prohibition of Unlawful Assembly (Interfer- ence with the Freedom of Matrimonial Alli-

ances) Bill, 2011. It tried to address the issue of Khap panchayats.

Executive actions taken: #

1. District Administration has taken many steps to tackle the menace of Khap panchayats in the affected districts. It has declared such as- sembly to be illegal, subject to severe punish- ments.
2. Political executives have taken steps to re- form these khap panchayats, as their view is that social change cannot happen immediate- ly.

Judicial actions taken: #

1. Supreme Court has declared that the Khap panchayats are unconstitutional and illegal and they must be “ruthlessly stamped out”.
2. Condemning honour killings and khap pan- chayats, the Bench directed the administra- tive and police officials to take strong mea- sures to prevent such atrocious acts.

These steps have been effective, but still a lot more needs to be done. The following steps need to be taken

1. Lok Adalats: These institutions needs to be strengthened at the grassroots level. It will help in eliminating the unconstitutional Khap panchayats, as well as in delivering justice.
2. Legislation: Effective legislation needs to be enacted in the states, to ban Khap panchayats. It will provide the framework for executives to take action against khap panchayats.
3. Executive action: They need to be proactive in implementing the law and in taking action against khap panchayats.
4. Attitude change: Elders of the village needs to be persuaded for attitude change in order to bring social change.