December 2, 2020

Directive Principles of State Policy: Journey from Non-Justiciable to Justiciable Principle

INTRODUCTION

The purpose of Directive Principles of State Policy (DPSP), mentioned in Part IV of our Constitution is that they are instrument of instructions to the government. Government uses these instructions to carry out policies which meet the needs of weaker and marginalised sections of the society. It is used to fill the gaps between ‘haves’ and ‘have-nots’ and to provide social and economic justice to every section of the society. It is a very high ideal and it is not possible to achieve this in a day or two. For this state to constantly make endeavour to reach this goal; fundamental rights and other provisions of the constitution may be used.

DPSP is a reservoir of socio-economic rights and the role of the state is discovered as socio-welfare state. So, it is the duty of the government to implement laws to put this right into reality. Policies of welfare state will not come into effect unless state is able to enact a law. So, one can discover that the entire objective of enactment of DPSP is welfare of the masses.

WHETHER JUDICIARY IS OBLIGED TO FOLLOW DPSP WHILE INTERPRETING THE CONSTITUTION?

Judiciary will need these principles for interpreting the law. Court is obliged to follow these directives as these serve as a code of interpretation. In the case of National Textiles Workers Union V. P.R.Ramkrishnan[1], the Apex court held that it is the duty of the court to apply these principles while interpreting a law.

So, we can say that DPSP has two dimensions-

· It is fundamental in the governance of the country.[2]

· It serves as a code of interpretation for the Judiciary.

When constitution was being drafted then the framers thought that some principles will be justiciable in nature, i.e., Fundamental Rights contained in Part III; while some non-justiciable, to act as instrument of instructions to the government to follow while implementing law. Although one is not allowed to approach constitutional courts for enforcing these principles but they are fundamental in the governance of the country and the state is morally bound to follow these principles enshrined in Part IV.

DIRECTIVE PRINCIPLES OF STATE POLICY: DUTY OF STATE TO RIGHTS OF THE CITIZEN

Through DPSP, socio-economic life of the people can be changed to bring a society which can be described as an egalitarian society. Supreme Court played a key role while interpreting these principles;these principles are non-justiciable and contain socio-economic rights. It is the duty of the state to protect these rights and if the state is not making law to protect these, then judiciary has to change the nature of this duty.

Since, these duties of the state are socio-economic rights of the citizens,court is changing ‘duty’ to ‘rights’. This is not ordinary human rights, but it can be discovered from reservoir of fundamental right, i.e., Article 21. The court clarified that right to life includes a dignified life in the case of OligaTellis v. Bombay Municipal Corporation and others[3] and in Corlie Mullin v. Adminstrator and Union Territory of Delhi[4]. If the dignity of any person is affected by state inaction and flows from non-performance of its obligation mentioned in DPSP, then as per Article 37, these obligations are unenforceable. Judiciary can enforce these duties by changing the nature of these duties into rights by using a catalyst, i.e., Article 21. For eg., Right to Education was present in Article 45, Part IV of the Indian Constitution, but judiciary realised that state is not taking any action to implement this policy so in the case of Mohini Jain V. State of Karnataka[5], Supreme Court held that Right to education is fundamental right for all. But at the same time it was not possible for state to give education to all. Then the apex court in the case of Unni Krishnan V. State of Andhra Pradesh[6] held that right to education is fundamental right for children of age group of 6 to 14 years. Subsequently in 2002, Right to Education Act was enacted by the Parliament. From 1993 to 2002, right to education was Fundamental Right which was made enforceable by a judgment law.

In 1979, Right to free legal aid was declared as fundamental right under Article 21 of the Constitution. The state is transforming itself from “welfare state” to “laissez-faire state” and if the ambit of ‘state’ will shrink under Article 12, it will also shrink under Article 36!

IS THERE ANY SANCTION FOR NON IMPLEMENTATION OF DPSP?

The drafting committee approved Mr.B.N. Rau’s suggestion, who was the constituent assembly’s constitutional advisor, that an individual’s rights should be divided into two groups, i.e., justiciable &non-justiciable. The Constitutional Freedoms, of a justiciable sort, are then fused into Part III and the Directive Principles, of a non-justiciable sort, are combined into Part IV.

Ivor Jennings said DPSPs represent pious aspirations and it is difficult for any state to implement these directives.

Seervai was of the view that the inclusion of DPSP in a constitution is simply a rhetorical statement of “hopes, ideals and goals” rather than actual realities backed by political mechanism of enforcement as opposed to legal enforcement.

Prof.K.C.Wheare calls DPSP as a paragraph of generalities. If legislature wants to implement these directives then there would be conflict with Fundamental rights.

DD Basuviewed that DPSPs can be enforced. He was of the view that if states are not implementing these policies, then central government can issue administrative directions under Article 256 and 257 of the constitution. These directions are issued as the union has duty to protect every state against external aggression and internal disturbance and to ensure that the governance of every state is carried on in accordance with the provisions of the constitution[7]. If state fails to implement these directives then warning can be issued under Article 365 and may lead to invoking Article 356 against the concerned state government.

But, there is no legal sanction for DPSP under the constitution. Only political sanctions are there behind implementation of DPSP and when these DPSPs are enforced they become the part of the rights under Part III of the constitution.

CONCLUSION

So, we can say that judiciary is changing the nature of these principles by using a catalyst or reservoir of human rights and these rights are “neo-fundamental rights”. These neo-fundamental rights are not expressly recognised by the Constitution. Judiciary is constructing these neo-fundamental rights by invoking Article 21.

Rights and Duties are correlative terms. If state has duty and this duty is not enforceable then judiciary can bring this duty in the arena of reservoir of human rights because all socio-economic rights can be linked with the human dignity and the moment it can be linked with human dignity, Article 21 can be ignited and these obligations of the state can be made enforceable. So, it can be inferred that judiciary by using this code of interpretation has changed the nature of duties from non justiciable principles to justiciable principles.

[1]AIR 1983 SC 750.

[2]Article 37.

[3]AIR 1986 SC 180.

[4]AIR 1981 SC 746.

[5]AIR 1992 SC 1858.

[6]AIR 1993 SC 2178.

[7]Article 355.

Author Details:

1. Shivani Verma (Hidayatullah National Law University, Raipur)

2. Yash (Faculty of Law, Banaras Hindu University, Varanasi)

The views of the author are personal only. (if any)

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