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Nature and Justiciability of the Directive Principles

Nature and Justiciability of the Directive Principles

 

By Naimish Tewari[1]

 

The constitution of India was in a fit state by the 26th of November, 1949 and was enforced on the 26th of January, 1950 and so were the directive principles of the state policy, these principles are enshrined under the part IV of the constitution of India amongst the Articles 36 to 51, also described as the novel features of the Indian constitution. These directive principles have been a product of the Irish constitution, and termed by Grandville Austin as “conscience of the constitution”. However, how fancy these Irish principles may seem, the concept itself has been a part of Indian polity since the inception of the Indian sub-continent, that the welfare of the people by the means of initiation and execution shall lie in the hands of the state[2] .The creation of the constitution gave birth to the eternal debate between the co-existence of the directive principles and the fundamental rights, they both combined are the heart and soul of the constitution, the nature and Justiciability of the directive principles, i.e. the extent to which they can be enforced, and justiciability is the capacity of the court to adjudicate a matter, is still in need for a constitutional interpretation but the prima facie inference is that directive principles cannot be enforced.

If one has to define directive principles of state policy, within the frame of the constitution of India, they can be said as directives given by the constitution on how to run an effective government, these directives from the constitution makers are fundamentals of Indian governance  and are to be given with paramount importance while framing laws for the nation, further these principles have a primary objective to provide justice and equality amongst the people of the Indian sub-continent. Dr B.R Ambedkar while debating on Part IV argued –

It is the intention of this Assembly that in future both the legislature and the executive should not merely pay lip service to these principles enacted in this part, but that they should be made the basis of all executive and legislative action that may be taken hereafter in the matter of the governance of the country[3]

The justiciability of the directive principles is rather in the negative, they are unlike the fundamental rights which can be adjudicated in the courts, the directive principles are unenforceable and are just the guiding principles for a government. The true nature and the justiciability can be determined by the authority of Article 37[4] which clearly mentions that the entire part IV will not be of enforceable nature. The reason for the unenforceability to part IV is because when the Indian nation achieved independence the social and economic condition of the Indian state was not well, and therefore it was not possible of creating directive principles of the state policy to be enforceable, but they were made an integral part to guide the Indian governments towards the constitutional goals.

The constitutional history of the directive principles of state policy which try to simplify the nature of directive principles of state policy flows back to the landmark case which distinguished the enforceability between the fundamental rights and the directive principles is the case of  Madras vs Champakan[5] where the Hon’ble Supreme court held that contravention to a fundamental right will make a law null and void, by the virtue of Article 13[6] but the directive principle of state polices are not on the same position, the fundamental rights are on a higher place than the directive principles of state policy. With reference to the Kerala education bill, when the president exercising the advisory jurisdiction of the of the Hon’ble Supreme Court exercising Article 143[7] the court applied the doctrine of harmonious construction  and explained that under any conflict between the directive principles of state policies and the fundamental rights, the fundamental rights would prevail. 

To safeguard constitutional morality, when the parliament started amending the fundamental rights in the name of the directive principles, the Hon’ble Apex court had to come into picture in the case of I.C. Golaknath[8] in which the law laid down said that the fundamental rights cannot be amended, not even to give a way to the directives of the state policy. The government could not fathom the judgement and to dilute it came up with the 24th amendment[9] which empowers the parliament to amend the fundamental rights using the power conferred by Article 368[10], and the government did not stop at this, the next amendment which was the 25th amendment[11], inserted an Article, which was Article 31c to the constitution which protected any law made with respect to the directives to the state and contravened the fundamental rights, the amendment also barred the judicial review of the courts which respect to such law.

The breakthrough to Indian constitutionalism and Indian judiciary came in the year of 1973 with the case of keshvanadabharti[12], the Indian state witnessed the maxima of the supreme court’s bench of thirteen judges till date which ended the eternal debate of the powers of the parliament to amend the constitution by formulating the basic structure theory, further with respect to the directive principles of state policy, the Supreme court clarified that judicial review cannot be taken away, and it stuck down the latter part of Article 31 c for being unconstitutional. 

The Indira Gandhi government, made very substantial changes to the Indian constitution in the 42nd amendment[13]this amendment is also termed as the ‘mini constitution’ however with respect to the directives to the state, art 4 of the constitution were made superior to the fundamental rights, these amendments made by the Indira government were to grasp more and more power to pave a way for the acts of its government and to gain constitutional support the Indira government had to do the amendment  however in the year of 1975 in the case of Minerva mills[14] with the base of the kesavananda precedent hailing judicial review as the basic structure and clarifying that directive principles of the state policy are subordinate to the fundamental rights, a constitutional balance between the fundamental rights and the directive principles of state policy was proposed by the apex court, further the apex court also mentioned that absolute priority cannot be given to either, there is a need for a harmonious construction between part III and part IV.

The coexistence of the fundamental rights and the directive principle of state policy was also advocated in the case of  Unnikrishnan vs State of Andhra Pradesh[15]where the court tried to explain that both part III and part IV are complimentary to each other, both of these parts should not be read in ‘exclusion’ further the apex court also explained that the fundamental rights, recognized by the constitution under part III  are the key of achieving the goals of welfare state given under part IV. The Article 21 A which is a fundamental right, which came through the eighty sixth amendment[16] in 2002 was a fundamental right which came into existence as it a brain child of a directive principle Article 41 which speaks about education and assistance of public.

The present legal scenario of the directive principles is that, they are the guiding principles of Indian state and Indian governments, it has to be acknowledged that the fundamental rights do supersede the directive principles of state policy, it is also true that even after seventy years if Indian independence, there has been no amendment to the constitution to make the directive principles of state policy enforceable which has been one of the greatest criticism of the part IV of the Indian constitution, even after being the part of the Indian constitution, they do not impose any sort of legal implications upon the Indian state, Prof. K.C. Wheare portrays them as “manifesto of aims and aspirations.” Whereas T.T. Krishnamachari holds them as a ‘veritable dustbin of sentiments”.However, even after being criticised  by people around the globe the directive principles of state policy are an integral part of the Indian constitution and will stay being the part of the Indian constitution providing a way to achieve a welfare state for the upcoming governments of our nation.

 

 

 

 

 

 

 

 

 

 


[1]Student of law, 2st year, Symbiosis law school Noida, Symbiosis International University. naimish98@gmail.com

[2] Granville Austin, The Indian Constitution: Cornerstone of a Nation, 76 (4th ed., 2001).

 

[3]"Constituent Assembly of India – Volume VII". 19 November 1948. Retrieved 24th June, 2019.

[4]Constitution of India, 1950, Art. 37.

[5]Madras Vs Champakan (AIR 1951 SC 226)

[6]Constitution of India 1950, Art. 13

[7]Constitution of India, 1950, Art. 143

[8]Golaknath v. State Of Punjab (1967 AIR 1643)

[9] 24th Amendment Act, 1971

[10]Constitution of india, 1950. Art. 368

[11] 25th Amendment Act, 1971

[12]His Holiness KesavanandaBharati Sripadagalvaru. v. State of Kerala (1973) 4 SCC 225

[13] 42nd Amendment  Act, 1976

[14]Minerva Mills Ltd.  v. Union Of India and (AIR 1980 SC 1789) 

[15]Unnikrishnan vs State of Andhra Pradesh (1993 SCC (1) 645) 

 

[16]86th Constitutional Amendment, 2002

 

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Submitted by Naimish Tewari

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