October 28, 2021

Directive Principles – Legislative and Administrative Implementation of International Human Rights Norms

Constitution

Introduction

In Constitution of India, the concept of Directive Principle was enshrined from the time it came into being. Part IV of the Constitution which comprises of Articles from 36-51 contains the Directive Principles of State Policy. This feature has been adopted by India from the Constitution of Ireland, and they in turn borrowed it from the Spanish Constitution. These principles are not justiciable or enforceable in the court of law like Fundamental rights in India but are fundamental to the governance of the country, and empowers the state the duty to make these principles applicable in the formation of laws.

Brief history of DPSP

Historically, human rights have been observed to hold essentially against the State and society of which one is a member. The implementation and compliance with international human rights norms and obligations are eventually national issues, and it is the States that are under a compulsion under the international human rights norms to safeguard, uphold, protect, and promote the human rights of individuals within their respective territories.
Legislative and administrative mechanisms to protect the human rights of the citizens can take various forms. They, on a primary level consist of the courts, ombudsmen, and the National Human Rights Institutions. Human rights are justified moral values inherent in all human beings of whatever nationality, place of residence, ethnic origin, gender identity, religion, language or any
other status, establishing norms necessary for people to lead a minimally sustainable life.
Human rights standards are basic moral ethics and minimums, a moral floor beneath which governments must not sink. Everyone is equally entitled to have their human rights respected without discrimination on any grounds. These rights are all interrelated, interdependent and inviolable. The theory of universality of human rights is the cornerstone of international human rights law. Universal human rights are generally expressed and guaranteed by law in the forms of treaties, customary international law, general principles, norms and other sources of international law. International human rights law infuses down obligations of governments to act, or object from acting, in certain methods in order to promote and protect human rights and the fundamental freedoms of individuals or groups.
The developing countries, on their part, dived hard for recognition of the right to self- determination and the right to development. These countries saw the development of human rights norms as having an important role to play in developing as international public policy major aspirations of large parts of humanity for peace, self-determination, development, and justice. A tension between classical, restrictive approaches to human rights and more ever changing, public order approaches to human aspirations and rights continues to be felt in our period, particularly as regards the implementation of the right to development. Whatever the obstacles, we are now the inheritors of great normative human rights instruments, with pride of position belonging to the Universal Declaration of Human Rights. Some authors have challenged that the Declaration is an elaboration upon the human rights provisions of the Charter and therefore deserves to be marked and positioned alongside the United Nations Charter as one of the basic constitutional provisions of the contemporary world order. Opinions differ as to whether the Universal Declaration, in part or as a whole, is a legally dependable document but most commentators agree that some parts of it represent binding international law.
The Universal Declaration, the two International Covenants, the Convention against racial discrimination, the Convention against torture, the Convention on the rights of the child, the Convention on the removal of discrimination against women, and the Convention on the rights of migrant workers and their families are the principal human rights norms to date. The first six conventions are widely followed, with the convention on the rights of the child being the one subscribed to by all except two states. The convention on the rights of migrant workers and their families is the least followed of all because Western countries in particular have deliberately objected to many of its provisions. From the principal human rights declarations and conventions may be originated a number of principles of international human rights law.

Dr. B.R. Ambedkar described these principles as the “novel features” of the Indian Constitution.

Granville Austin described Directive Principles with the Fundamental Rights as the “Conscience of the Constitution”.

The Directive Principles along with the Fundamental Rights contain the philosophy of the Constitution and is regarded as the soul of the Indian Constitution.

Implementation of Directive Principles

From the very beginning of the Constitution coming into effect, several laws with various programmes have been formulated for the implementation of the Directive Principles. Some of them have been discussed below:

  • The Maternity Benefit Act, 1961 and Equal Remuneration Act, 1976 came into effect to protect the interests of women workers in India.
  • The Legal Services Authorities Act of 1987 came into play so that free and competent legal aid could be provided to the poor and to organise Lok adalats for promoting equal justice.
  • Nationalization of life insurance and of fourteen leading commercial banks, abolition of Privy Purses (1971) was done to utilize the financial resources for promoting the common good.
  • Khadi and Village Industries Board, Small-scale Industries Board, Handloom Board, Silk Board and so on have been set up for the development of cottage industries in rural areas.
  • Agriculture has also been modernized by making available the improved agricultural inputs, fertilizers, seeds and irrigation facilities.
  • India has also been following the policy of non-alignment and panchsheel to promote international peace and security.
  • National Commissions have been set up to promote and protect the social, economic and educational interests of the weaker sections of the society.
  • The Criminal Procedure Code of 1973 separated the judiciary from the executive in respect to public services in state.
  • Special programmes have been launched to eradicate widespread diseases like malaria, Guinea worm, Japanese encephalitis, yaws, cancer, AIDS, and so on.
  • Seats were reserved for the SCs, STs and other economically and socially backward classes of the society in educational institutions, government schemes and other representative bodies.
  • Laws were enacted so that slaughter of cows, bullocks and calves could be prohibited.

There are so many other steps that has been taken by the government at large for the welfare of the individuals and to protect the human rights but there is still some inefficiency left due to which these principles has not been implemented that effectively like not having adequate financial resources, population explosion, unfavourable socio-economic conditions, etc.

Article 51 and International Obligations

Article 51(c) is the basic provision by virtue of which international law has been implemented through municipal laws of India. Article 51 deals with the concept of international peace and security. It aims 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 organized peoples with one another; and
  4. Encourage settlement of international disputes by arbitration.

We here, focused on the third point which is also clause (c) of Article 51 of the Indian Constitution. It has been relied upon for the introduction and implementation of various international instruments like Universal Declaration of Human Rights, also the Economic, Social and Cultural rights in the interpretation of fundamental rights and the covenants on the political, and civil rights.

As it is well known that Article 51 is part of the Directive Principles of State Policy which in itself is not enforceable or justiciable in India and thus, the Article 51 and international law per se are not justiciable in the realm of municipal law. But this non-enforceability of Article 51 does not take away the power of the government to strive to achieve the objectives which the international treaty confers, and ratified by it for the welfare of the humans through executive as well as legislative actions.

Also, the Judiciary may not be given power to make legislations but can interpret India’s obligations under international law into the local laws of the country in pronouncing its judgement in the cases which are concerned with the issues relating to international laws and its implementation.

Human Rights in India

India has signed various treaties for the development and growth of the country and the world at large, and in doing so it has signed and became party to more than one hundred and sixty treaties and conventions, and most prominent among those are the treaties related to the human rights, environment law, space law, international trade law, intellectual property rights, etc.

The Fundamental Rights along with the Directive Principles of State Policy, in short (DPSP) are considered to be the part of Constitution of India which clearly echoes the international human rights principle. The Indian Judiciary has with time well interpreted the scope of these principles in catering with the objectives of the human rights, relying upon several international human rights norms and principles to recognise various rights.

Laws have been implemented with the changing time and to cater the needs of the society and protecting their fundamental and basic rights and certain provisions like Human Rights Act of 1993, Right to Children to Free and Compulsory Education Act of 2009, Child Labour (Prohibition and Regulation) Act, 1986, Persons with Disability( Equal Opportunities, Protection of Rights and Full Participation) Act,1995 and so on , have been enacted to protect and strengthen the people relating to the weaker sections of the society in order not to cause harm to their human rights.

Directive Principles in Part IV are the positive postulates which forms the basis of formulation of new laws in the country and when gets compared with the Universal Declaration of Human Rights there can be traced many similarities which socially, economically and culturally administer the needs of the people without any territorial barriers. The organisation named, the United Nations Organisation (UNO) was founded on 24th October, 1945 with its headquarters in New York City, as an international agency with the sole aim of preventing the broke out of any other world war after second has already arrived. It aims to maintain international peace and security among the nations and to promote the rights of the humans. With the introduction of such organisation, the platform got available to the nations which can come together to adopt and proclaim the Universal Declaration of Human Rights every year on 10th December since 1948.

It is pertinent to note here, that the Indian Constitution which came into being on 26th November, 1950 has adopted several items in its Constitution after analysing the various principles and objectives laid down under the Constitution of various countries, obviously by moulding its way according to the conditions, and the historical background and the people of our nation. In a similar manner, it was greatly influenced by the history and the aspects of the human race and values enshrined in the Universal Declaration of Human Rights and sought to protect and preserve that while adopting various norms and implementing the same in the very existence of its legislations and the provisions affecting the life of the people in the country.

In India, there has been so many instances where the court while delivering its decision in the area concerned with the international laws pertaining to human rights has always observed and come up with the conclusion that the domestic or the local laws of India along with its Constitution has always been in derogation with regard to the international law. The domestic law should be read as being in harmony with the human rights in case of any ambiguity, but in case of any conflict between the two, the Constitution shall prevail as it is the law of the land which cannot be neglected as it is the existence to the nation called India.

Relevant Case Laws

  • Vishaka v. State of Rajasthan, 1997

It has been a landmark case in the history of India which is concerned with the working conditions of the female workers. It came up in the form of Public Interest Litigation to the Supreme court which demanded enforcement of fundamental rights for working women laid under Articles 14, 19 and 21 which is refereed as the “golden trinity” of the Indian Constitution. For the same, the Vishaka Guidelines were issued by the court with the basic definitions of sexual harassment at workplace and the measures to be adopted in dealing with it.

  • Randhir Singh v. Union of India, 1982

The Supreme court held that the concept of “equal pay for equal work” may not be expressly provided in our Constitution as a fundamental right but then too it is defined as a constitutional goal under Articles 14, 19 and 39 (c) of the Constitution.

  • Keshavananda Bharti v. State of Kerala, 1973

Justice Mathew while delivering its judgement in the case explained the importance of the directive principles in the words:

I think there are rights which inhere in human beings because they are human beings- whether you call them natural rights or by some other appellation is immaterial. As the Preamble indicates, it was to secure the basic human rights like liberty and equality that the people gave unto themselves the Constitution and these basic rights are an essential feature of the Constitution; the Constitution was also enacted by the people to secure justice, social, political and economic. Therefore, the moral rights embodied in Part IV of the Constitution are equally an essential feature of it.

  • Prem Shankar Shukla v. Delhi Administration, 1980

The court held that by virtue of Article 51, the international instruments, particularly those to which India is a party, become part of Indian law so long as they are not inconsistent with it. Therefore, they can be very well relied upon and enforced.

  • Unni Krishnan, J.P v. State of A.P, 1993

The court drew the parameters of the right to education from Article 41 and 45 and held that every child/citizen of this country has a right to free education until he completes the age of 14 years and after the completion of the prescribed age, his right is circumscribed by the limits of economic capacity of the State and its development. Although, after the incorporation of right to education under Article 21-A, the contents of the Article 45 were also changed.

Conclusion

To sum up, the Directive Principles has always faced criticism in various forms by Constitutional and political experts on ground of it not being in force legally, on being illogically arranged, conservative and in conflict with the Constitutional norms but have been in harmony with the Universal laws relating to the human rights. The Indian Constitution has embodied in itself the basic framework for the implementation of international conventions and treaties in its domestic legal system. International treaties are incorporated into the legal system by an act of the Parliament or law made by the state legislature containing the power to enact laws in implementing India’s obligations under the international law.

The DPSP possess two characteristics, firstly they are not enforceable in any court, therefore, if any directive principle is not obeyed by the state, then its obedience cannot be obtained through judicial proceedings and secondly, they are fundamental in the governance of the country and creates a duty on the state to make these laws applicable in the implementation of laws. They are considered to be the life-giving provisions of the Constitution intent to protect the democracy of the nation and ensuring it to develop in a welfare state.

Author- Tanishka ruia (Pes university), Vaishali yadav (Campus Law Centre, Faculty of Law)

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