A unique component of the Constitution of India is the Directive Principles of State Policy. The ramifications of certain important fundamental rights have been discussed in this column earlier. It is now to be seen what the contents and purport of the Directive Principles of State Policy are.
The articles included in Part IV of the Constitution (Arts. 36-51) contain certain directives which assert that it shall be the duty of the States to follow both in the matter of administration as well as in the making of laws. They embody the aims and objects of a State under the republican Constitution, e.g., that it is a ‘Welfare State’ and not a mere ‘Police State’; and the ideal of socioeconomic justice.
The directives, however, differ from the Fundamental Rights contained in Part III of the Constitution or the ordinary laws of the land, in the following respects: (a) the directives are not enforceable in the courts and do not create any justiceable rights in favour of individuals, (b) the directives require to be implemented by legislation, and so long as there is no law carrying out the policy laid down in a directive, neither the State nor an individual can violate any existing law or legal right under the pretext of following a directive, (c) the directives, per se, do not confer upon or take away any legislative power from the appropriate legislature.
Legislative competence must be sought from the Legislative Lists contained in the Schedule VII to the Constitution, (d) the courts cannot declare any law as void on the ground that it contravenes any of the Directive Principles. Neither are courts competent to compel the Government to carry out any directive or to make any law for that purpose, e.g., to provide for free compulsory education within the time limited by Art.45, or to provide adequate means of livelihood to every citizen, and (e) though it is the duty of the State to implement the directives, it can do so only subject to the limitations imposed by the different provisions of the Constitution upon the exercise of the legislative and executive powers by the State. Art. 13(2) prohibits the State from making any law which takes away or abridges the fundamental rights conferred by Part III. The Directive Principles cannot override this categorical limitation upon the legislative power of the State.
The early decisions of the Supreme Court paid comparatively scant attention to the directives in Part IV on the ground that courts had little to do with them since they were not justiceable or enforceable in the courts like the fundamental rights.
The duty of the courts in relation to the directives came to be emphasised in later decisions, which trend reached its culmination in the 13-member Bench in Keshavananda’s case, which laid down certain broad propositions which are bound to be productive of far-reaching effects in future cases. These important propositions are: (i) there is no disharmony between the directives and the fundamental rights because they supplement each other for the same goal of bringing about a social revolution and establishment of a welfare State, which is envisaged in the Preamble. The Fundamental Rights and the Directive Principles are two wheels of the chariot as an aid to make social and economic democracy a truism. The Constitution aims at a synthesis of the two and the Directive Principles constitute “conscience of the Constitution”.
Together, they form core of the Constitution. They are not exclusionary, but are complementary to each other, (ii) even the conditions for the exercise by each individual of his fundamental rights cannot be ensured unless the directives are implemented, and (iii) Parliament is competent to amend the Constitution to override or abrogate any fundamental right to enable the State to implement the directives so long as the ‘basic features’ of the Constitution are not affected.
Since the courts form part of the ‘State’ as defined in Art. 36 read with Art. 12, and judicial process constitutes ‘State action’, the courts have a responsibility in so interpreting the Constitution as to ensure implementation of the directives and harmonise the social objective underlying the directives with the individual rights. Thus, primarily, the mandate in Art. 37 is addressed to the legislature, but in so far as the courts can indulge in some judicial law-making within the interstices of the Constitution or any statute before them for construction, the courts too are found by this mandate.
It would follow that the courts should uphold, as far as possible, legislation enacted by the State to ensure ‘distributive justice’, i.e., laws which seek to remove inequalities and also attempt to achieve a fair division of wealth amongst members of the society, redressing unfair bargains. Applying the doctrine of ‘harmonious construction’, the court has applied the directives to adjust the ambit of the fundamental rights themselves to give a liberal interpretation to the ambit of a legislative entry so as to make it possible for the legislature to implement a directive, but not so as to confer upon a particular legislature a power which it does not possess under the federal distribution of powers made by the Constitution.
Not only in the interpretation of the fundamental rights, the court has referred to the directives in interpreting other provisions in the Constitution, e.g., Art.371D (in the light of Art.50); Art. 302 (‘in the public interest’, having regard to Arts. 39, 43). Even though the directives per se cannot be enforced by the court nor can the court compel the State to undertake legislation to implement a directive, the Supreme Court has been issuing various directions to the Government to take positive action to remove the grievances which have been caused by non-implementation of the directives.
For judging the reasonability of restrictions imposed on fundamental rights, the relevant considerations are not only those as stated in Art. 19 itself or in Part III of the Constitution but also the Directive Principles stated in Part-IV. Changing factual conditions and State policy have to be given weightage to by courts while deciding the Constitutional validity of legislative enactments. A restriction placed on any fundamental right aimed at securing Directive Principles will be held as reasonable; hence, intra vires subject to two limitations: it does not run in clear conflict with the fundamental right, and it has been enacted within the legislative competence of the legislature under Part XI, Chapter I. Implementation of the Directive Principle is within the expression “restriction in the interests of the general public” in Art. 19(6).
Whenever an action is taken by the State in consonance with the provisions in the Directive Principles as envisaged under Part IV, the same is considered to be a reasonable action. However, this does not amount to inferring that any action which is not in consonance with the provisions of Part IV would be ultra vires.
The Directive Principles provide for a guidance in interpretation of fundamental rights of a citizen as also the statutory rights. Applying the above principles, the court has applied the doctrine of harmonious construction to interpret different justiceable provisions in the light of the Directive Principles.
In short, the provisions in Part III are to be interpreted having regard to the Preamble and the Directive Principles in Part IV. The court should make every attempt to reconcile the Fundamental Rights with the Directive Principles.
The Directive Principles of State Policy are thus an integral part of the rainbow provisions of the Constitution of India. It is the ingenuity of the judiciary that invents newer ways of making out a better blend in the interest of the overall goal of the welfare society.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com )
