These notes are just for reference purpose.

Please rely on your course books and they are no

substitute or shortcut for your examination preparation.

DIRECTIVE PRINCIPLES OF STATE POLICY

HISTORY & INTRODUCTION

INTRODUCTION

The Directive Principles of State Policy contained in Part IV, Articles 36-51 of the Indian
constitution constitute the most interesting and enchanting part of the constitution.

The Directive Principles may be said to contain the philosophy of the constitution. The idea
of directives being included in the constitution was borrowed from the constitution of Ireland
which had taken it from Spanish Constitution. As the very term “Directives” indicate, the
Directive principles are broad directives given to the state in accordance with which the
legislative and executive powers of the state are to be exercised. As Nehru observed, the
governments will ignore the directives “Only at their own peril.”

As India seeks to secure an egalitarian society, the founding fathers were not satisfied with
only political justice. They sought to combine political justice with economic and social
justice. There is a long history relating to the evolution of these Principles. Most of the
contemporary scholars trace them to the Indian freedom struggle. In the words of Granville
Austin, “the Fundamental Rights and Directive Principles1 had their origins in the Indian
independence movement, which strove to achieve the values of liberty and social welfare as
the goals of independent Indian State.”2 They have their roots in the history of the last several
centuries.

The concept of Directive Principles of State Policy was borrowed from the Irish Constitution.
The makers of the Constitution of India were influenced by the Irish nationalist movement,
particularly the Irish Home Rule Movement. Hence, the Directive Principles of the Indian
constitution have been greatly influenced by the Directive Principles of Social Policy. 3 The
idea of such policies "can be traced to the Declaration of the Rights of Man proclaimed by
Revolutionary France and the Declaration of Independence by the American Colonies." 4The
Indian constitution was also influenced by the United Nations Universal Declaration of
Human Rights.

ORIGIN AND DEVELOPMENT OF DIRECTIVE PRINCIPLES OF STATE POLICY

BEFORE SETTING UP OF THE CONSTITUENT ASSEMBLY

The political vacuum created by the death of Aurangzeb in 1707 was ultimately filled by the
British after they won the battle of Plassey in 1757. During the intervening period the British
established a new legal and political order, in certain respects largely based on their own and

1
See H.R Khanna, Constitutional and Civil Liberties 35-36 (Radha Krishna Prakashan, New Delhi, 1978).
2
Granville Austin, The Indian Constitution: Cornerstone of a nation 50 (Oxford University Press, Oxford,1966).
3
B.B Ayal,. & A. Jacob, Indian History, World Developments and Civics, (2005), pg. A-39
4
M.V. Pylee, India's Constitution. S. Chand and Company New Delhi, ISBN 81-219-1907-X.. , (1999).
in others greatly modified to suit Indian condition and their own interest. The major portion
of the Indian subcontinent was, thus, almost completely under British rule from 1857 to 1947.
The impact of economic, political and social development during this period helped the
gradual rise of the Indian independence movement to gain independence from foreign rule.

Fundamental Rights and Directive Principles are mainly the product of history. The idea of
rights is canvassed as of modern origin and usually traced to historical documents, such as the
Magna Carta of 1215 of Great Britain, the Petition of Rights of 1628, the Bill of Rights of
1689, the Virginia Declaration of 1776, the first ten Amendments of the Constitution of
U.S.A and the French Declaration of the Rights of Man 1789.

Development during the British Rule till the formation of the Indian National Congress,
1885

The Britishers came to India to trade and through the East India Company, secured a Royal
Charter5 from the British monarchy. The British had come to India as traders to make profits
out of Eastern trade. The attainment of political power led them to drain as much wealth from
India as possible. With this object in view, they started to exploit the country economically
and attacked Indian economy in various ways. 6 Consequently, some of the economic
consequences of the British rule were disintegration of rural economy and decline of trade
and industry.7The village craft and industry also suffered a serious setback at the British who
threw open the village to foreign imports and rendered the village artisans as landless
labourers. This added to poverty.8

The British authority recognized and regulated India’s economy in the interest of British
trade and industry and organized a modern administrative system to guarantee order and
security. But no one felt any responsibility for the welfare of the people. The Indian officials
who had administrative responsibility had no effective power to enforce their decision. The
whole system continued to be exploited to further their commercial interests. However, till
1813 they did not interfere in the religious and cultural life of the country, but after 1813 they
took active steps to transform the social and cultural life of the Indians.9 Because of the

5
The Charter granted to the Company monopoly right for trade with India and some areas of South East Asia.
The Company acted under the authority of the Crown. The latter granted to the Company certain legislative and
judicial authority to be exercised within its possessions. The Charters of 1600 and 1601 authorized the Governor
and the Company to make, ordain and constitute reasonable ‘laws, Constitutions, Orders and Ordinances’ for
good government of the Company and its officers, and to execute its laws. See Ranbir Singh and
A.Lakshminath, Constitutional Law 7 (Lexis Nexis Butterworths, New Delhi, 2006).
6
V.B.Singh, Indian Economy Yesterday and Today 7033 (People’s Publishing House Pvt. Ltd., New Delhi,
1970).
7
Jawahar Lal Nehru, The Discovery of India 315-322 (Oxford University Press, Delhi, 1946).
8
Tara Chand, History of the Freedom Movement in India 354 (Ministry of Information and Broadcasting,New
Delhi, 2005).
9
The Charter Act of 1813 which proclaimed the sovereignty of the Crown over the Company’s territorial
acquisitions had also made certain provisions for the welfare of the people of the country. It was provided that
the Company would set apart a sum of rupees one lakh every year which would be applied to revival and
improvement of literature and encouragement of the learned natives of India and for the introduction and
promotion of knowledge of the sciences among the inhabitants of the British territories in India. See
G.S.Chhabra, Advanced Study in the Constitutional History of India 70, 74 (Parkash
Brother, New Delhi, 1973).
industrial revolution which had begun in the middle of the eighteenth century, the British
wanted to make India a big market for their goods.10

Science and technology also opened new vista of human progress. The eighteenth and
nineteenth centuries witnessed a great ferment of new ideas in Britain and Europe which
influenced the British outlook towards the problem of India. The great French revolution of
1789 with the message of liberty, equality and fraternity generated powerful democratic
sentiments and unleashed the force of modern nationalism. 11The three outstanding
characteristics of new thought were rationalism or faith in reason and science, humanism or
love of man, and confidence in the capacity of man in progress.

Many administrative changes took place after the revolt of 1857, for example, local bodies
were first of all created in 1864-1868; reduced the age for the public services for twenty one
to nineteen years. The earlier attitude towards the advancement of the education was changed
and the British started showing hostility towards the educated Indians because they were
analyzing the imperialistic charter of the British rule and putting forward the demand of
Indian participation. They also abandoned the policy of social reform. The condition of
workers in the factories was not good. They worked for twelve to sixteen hours a day and
there was no provision for weekly day of rest.

The fact that India was not a free State was due to poverty, the crushing burden of taxation,
the wasteful expenditure and the drain of wealth. Hence, it was realised the solution of these
socio-economic problems which the country was facing depended upon the attainment of
self-rule by India. The objective of attainment of Swaraj, that is self rule, was to be achieved
by the Indian National Congress, perhaps then the only organization that fought for
independence.

Development after the formation of the Indian National Congress till the
Commonwealth of India Bill, 1925 and Swaraj Constitution, 1927

The Indian National Congress was founded in December 1885.12 The earliest demand for
recognition of Fundamental Rights commenced with the Constitution of India Bill, 1895
probably issued under the inspiration of Lokmanya Bal Gangadhar Tilak and described as the
Home Rule Bill by Annie Besant. 13 A glimpse of the rights and directives may be found in
the provisions of this Bill. The Bill had provisions for guaranteeing by State free and
compulsory primary education.14

In 1916 a Home Rule Movement was started by Annie Besant and Tilak.15 A series of
Congress Resolutions were passed between 1917 and 1919 and repeated the demand for civil

10
Bipin Chandra, History of Modern India 114 (Orient Blackswan Pvt. Ltd., New Delhi, 2009).
11
Ibid.
12
R.N. Aggarwals, National Movement and Constitutional Development of India 40 (Metropolitan BookCo.,
New Delhi, 1980).
13
Shiva Rao, The Framing of Indian Constitution: A Study 171 (Indian Institute of Public Administration,
Bombay, 1968).
14
Ibid, the Bill contained 111 Articles.
15
K.M. Munshi, Indian Constitutional Documents 6-7 (Bharatiya Vidya Bhavan, Bombay, Vol.II, 1967).
rights and equal status with those of Englishmen. It is evident that in the wake of first quarter
of the twentieth century, there was enough political awakening in India. In fact by the mid-
twenties, the Congress and Indian leaders generally achieved a new forcefulness and
consciousness of their Indians and the need of the people. By now Gandhi had appeared on
the political scene of the country. There was no longer demand for establishing the rights of
the Indians vis-à-vis Englishmen, a goal that was to be achieved through Independence
Movement, the purpose now was to assure liberty among Indians.

A view got currency that political and personal freedom would be impaired if not rendered
nominal, unless its enjoyment was made practicable by the reasonable guarantee of social and
economic freedom. It was felt that the precious rights of personal liberty and political
freedom might become a shame if not a mockery for those whom the existing social and
economic order left starving, insecure in the livelihood, illiterate and deprived of their just
share in the progress and well being of the society as a whole. As a result, in the new
Constitutional arrangements made after the I World War, specific declaration of
Constitutional principles regarding social and economic policy was made.16

The drafting of Mrs. Annie Besant’s Commonwealth of India Bill of 1925,17 which was
adopted at the National Convention and presented to the House of Commons by Mr.
Lansbury and it sought to achieve for India, self governing dominion status except for foreign
and defence affairs. This Bill for the first time contained an Article relating to the grant of
Fundamental Rights.

In November 1927, just two years after the printing of the Bill, an Indian Statutory
Commission18 was appointed under Sir John Simon to examine whether Indians were fit for
being entrusted with a further installment of responsible Government19.

On 17 May 1927, at the Bombay Session of the Congress, Motilal Nehru moved a resolution
calling upon the Working Committee to frame a Constitution for India in consultation with
the elected members of the Central and Provincial Legislatures and leaders of political
parties. Based on a declaration of rights, a Swaraj Constitution was formed to give
momentum to the fight for Swaraj, i.e., self Government. In its introduction, it was said that
the declaration of rights of Indians as against others and of Indians as against their
Government must indeed form the most important feature of the Constitution.20

Development of Directive Principles of State Policy in the term of Socio-Economic

Rights in the Nehru Committee Report, 1928

16
K.C. Markandan, Directive Principles in the Indian Constitution 11 (Allied Publishers, Mumbai, 1966).
17
The Bill was in terms practically identical with the relevant provisions of the Irish Constitution of 1921.
18
The Indian Statutory Commission was a group of seven British Members of Parliament of UnitedKingdom
that had been dispatched to India in 1928 to study Constitutional reform in Britain's mostimportant colonial
dependency. It was commonly referred to as the Simon Commission after itsChairman, Sir John Simon. One of
its members was Clement Attlee, who subsequently became theBritish Prime Minister and eventually oversaw
the granting of independence to India and Pakistan in1947. Available at
http://en.wikipedia.org/wiki/Simon_Commission _ (Visited on March 15, 2018).
19
ibid
20
J.K. Mittal, Right to Equality in the Indian Constitution: Public Law 36, 39 (London, 1970).
In compliance with the directions contained in the Congress Resolution of 1927, the Working
Committee of the Congress convened an All-Parties Conference21 to draft a Swaraj
Constitution for India. The Conference appointed a small committee with Motilal Nehru as its
Chairman and seven other members,22 to determine the principles of the Constitution for
India. It contained an explanation of its draft Constitution that the first concern of Indians
was to secure Fundamental Rights that had been denied to them and which are not to be
withdrawn in any circumstances. 23

It also enumerated certain social and economic rights. For example, right of free elementary
education without any distinction of caste or creed in the matter of admission into any
educational institutions, maintained or aided by the State and such right shall be enforceable
as soon as due arrangements shall have been made by competent authority; freedom of
combination and association for the maintenance and improvement of labour and economic
conditions were guaranteed to everyone and of all occupations; maintenance of health and
fitness for work of all citizens, securing a living wage for every worker, protection of
motherhood, infirmity and unemployment. The report was presented to British but
unfortunately, the Commission did not support the general demand for the enumeration and
guaranteeing of Fundamental Rights in the Constitution of India.

As nothing concrete came out of the report, at the historic session of Lahore of 1929, of
which Jawahar Lal Nehru was made the President, the Resolution of 1929 also emphasized
the theme of socio-economic reconstruction when it declared: 24Subsequently in all the three
Sessions of the Indian Round Table Conference, efforts for the inclusion of a chapter on
Fundamental Rights in the Constitutional document for Indian were made.

Discussion Regarding Directive Principles of State Policy in the Three Round Table
Conferences, 1930

The three Round Table Conferences of 1930–32 were a series of conferences organized by
the British Government to discuss Constitutional reforms in India. In all the three Round
Table Conferences held in London, the subject of Fundamental Rights, designed to secure
either to the community in general or specified sections of the people of India, rights and
immunities were discussed at length and memorandum were submitted by individuals and
groups for the provision on Fundamental Rights in the proposed Constitution.

At the First Round Table Conference,25 N.M. Joshi, a representative of the Indian Labour
Organization emphasized the need of incorporating certain Fundamental Rights26 B.R.

21
The All Parties Conference held its meeting at Delhi in January and at Bombay in May 1928. The Conference
was attended by around hundred delegates from all the important parties including Indian National Congress,
All India Muslim League, National Liberal Federation, Hindu Mahasabha, Central Sikh League etc. Available
at: http://historypak.com/nehru-report/ _ (Visited on March 16, 2018).
22
The other members of the Committee were: All Imam, Tej Bahadur Sapru, M.S. Aney, Sardar Mangal Singh,
Shuaib Quareshi, Subhas Chandra Bose and G.R. Pradhan.
23
Report of the Motilal Nehru Committee at 89-90 (1928).
24
Shariful Hasan, Supreme Court: Fundamental Rights and Directive Principles 23 (Deep &Deep Publications,
New Delhi, 1981).
25
The First Round Table Conference was held during the period from 12 November 1930 to 19 January 1931.
26
Indian Round Table Conference Proceedings comd. 3778 at 11
Ambedkar also drew attention of the British Government towards the urgency of
incorporating adequate provisions for the enforcement of Fundamental Rights in the
Constitution.27 Despite various efforts of the Indian delegates, the attitude of the British
Government towards the grant of Fundamental Rights to the people of India remained
unchanged and the proposal was rejected at the First Round Table Conference.

A joint statement entitled as “Labor under the New Constitution” signed on 13 November
1931 by N.M.Joshi, B.Shiva Rao and V.V.Giri, included the same set of rights as were put
forward by Rao at the First Conference and concluded by saying: The real problem of the
future will be economic and social and it would be wrong to build the Constitution in a
manner which has no relation to the realities of tomorrow.

The Third Round Table Conference28 again echoed the discussion on Fundamental Rights.
Dr. Ambedkar wanted to include an additional rider in the form of Instrument of Instructions
to the Governor General and Governors. This view of Dr. Ambedkar is important to note
because the self same idea was expressed by him in the Constituent Assembly while
justifying the inclusion of the directives in the Draft Constitution of India.

A separate memorandum was submitted by Sir Tej Behadur Sapru and M.R. Jayakar on 27
December 1932. The British Government admitted the importance of such rights but
expressed the doubts about their feasibility. Ultimately, however, there was substantial
support for the view that, as the means of searching fair treatment for majority and minorities
alike, some of the Fundamental Rights could be ensured through the ‘special responsibilities’
of the Governor-General and Governors, some other could be incorporated into the
Constitution and such of them which were found unsuitable for statutory enactment could be
accommodated in the Royal Proclamation to be issued on the inauguration of the new
Constitution.

Finally, however, in the white paper, which was issued by the British Government in March
1933, outlining the proposals for Indian Constitutional reforms in India, no detailed
declaration of Fundamental Rights was made.

Although, there was general apprehension of the basic proposition advanced, there was strong
opposition to declaration of Fundamental Rights especially when there could be no effective
machinery for enforcing the same.

Revolutionary Expression of Directive Principles of State Policy in Karachi Resolution,

1931

Apart from the discussions and memoranda submitted on the subject of Fundamental Rights
at the London Round Table Conferences and the meetings of the Joint Committee on
Constitutional Reforms, on the political plan in India, the Indian National Congress passed a
historic resolution on the declaration of Fundamental Rights at its 45th Session held at
Karachi on 29 March 1931. It was explained that in order to end the exploitation of the

27
IRTC, id. at 130-131.
28
This Conference was held during the period from 17 November 1932 to 24 December 1932.
masses, political freedom must include real economic freedom of the starving millions.29

Subsequently, the resolution was modified in the All India Congress Committee meeting held
at Bombay on 6 August 1931. The modified version of the resolution was finally adopted
under the title ‘Fundamental Rights and Duties and Economic program’ at the 47th Session of
the Indian National Congress held at Calcutta on 1 April 1933. There were in all seventeen
Articles in this resolution, divided into 4 heads. There was an explicit pledge to end
exploitation and secure real economic freedom In this context, Granville Austin characterized
the resolution as both ‘a declaration of rights and a humanitarian socialist manifesto’.30

Development of Directive Principles of State Policy in form of Non-Justiciable Rights in

the Sapru Committee Report, 1945

The subject of Fundamental Rights and its incorporation in the future Constitution of India
was discussed at length by the Sapru Committee31 in 1945, with Sir Tej Bahadur Sapru as its
Chairman. It issued a questionnaire to various associations, groups and individuals inviting
their views on the desirability of inclusion of Fundamental Rights in the future Constitution
of India and the machinery that could be suggested for the enforcement of those Fundamental
Rights, which were not justifiable. It was here that the separation of rights started first of all.

Consequently, the Sapru Committee in 1945 considered the suggestions received from
various quarters on the subject of Fundamental Rights and reached the following conclusions:
First, protection of minority rights was absolutely necessary. Second, there was a need for
laying down adequate and appropriate standards for legislative and administrative actions and
the Courts. Third, that the justiciable and non-justiciable Fundamental Rights be discussed
and pleaded for incorporation in the future Constitution. 32

The atrocities committed during the Second World War and world-wide agitation for human
rights, the liberties guaranteed in the Atlantic Charter, the U.N. Charter, and the Declaration
of Human Rights by the Human Rights Commission, strengthened the demand for the
incorporation of Fundamental Rights in our Constitution.

Finally, the Sapru Committee in its ‘Constitutional Proposals’ recommended that a

declaration of Fundamental Rights in an Indian Constitution was absolutely necessary.

Directive Principles of State Policy and Constituent Assembly, 1946.

During the final stages of the British Raj, the 1946 Cabinet Mission to India proposed a
Constituent Assembly to draft a Constitution for India as part of the process of transfer of
power. 33 Hence, the duty of giving effect to these pre-independence pledges was completed

29
P. Sarojini Reddy, Judicial Review of Fundamental Rights 329 (National Publishing House, Delhi, 1976).
30
Michael Edwaardes, Nehru: A Political Biography 94 (Penguin, London, 1971).
31
The Committee was appointed by Sir Tej Bahadur Sapru under the authority of the Standing Committee of the
Non-Party Conference. See supra note 20 at 151.
32
Constitutional Proposals of the Sapru Committee at 257 (1945).
33
Durga Das Basu, Introduction to the Constitution of India 475 (Prentice Hall of India, New Delhi, 15thedn.,
1993).
by the Constituent Assembly34 set up in 1946.

The first great achievement was the adoption of the historic Objectives Resolution on 22nd
January 1947, moved by Pandit Jawaharlal Nehru on 13th December 1946. 35 The Resolution
laid down the fundamental prepositions on the basis of which a Constitution for free India
had to be framed.

Visualizing the need and importance of Fundamental Rights under the Resolution, Dr. S.
Radhakrishnan said that it was the socio-economic revolution which they were attempting to
bring about. He emphasized that though State regulation was necessary to improve economic
conditions, it should not be done at the expense of human spirit.36

B.N.Rau, the Constitutional Advisor to the Government of India suggested that the best way
to give effects to the assurances contained in Clauses (5), (6) and (8) of the Resolution was to
spilt up the assurances into Fundamental Rights and Fundamental Principles of State policy.
According to Rau, the former was to contain civil and political rights enforceable in the
Courts of law and the latter should contain social and economic rights not enforceable in the
Courts. Rau made an elaborate study of the various European Constitutions and his study,
inter alia revealed that most of them retained certain rights which were non-justiciable in
nature.37

K. Santhanam, 38 was a member of the Indian Constituent Assembly explained the situation
in terms of three revolutions: First, the political revolution that would end with independence.
Second, the social revolution meant to get India out of medievalism based on birth, religions,
custom and community, and reconstruct her social structure on modern foundations of law,
individual merit, and secular education. Third, the economic revolution - the transition from
primitive rural economy to scientific and planned agricultural industry.

Directive Principles of State Policy and Sub-Committee on Fundamental Rights

The Sub-Committee on Fundamental Rights held its first meeting on 27 February 1947 and
elected J.B.Kriplani as its Chairman. Initiating the discussion on the subject, Alladi
Krishnaswami Ayyar pointed out that citizen’s rights embodied in a Constitution should
consist of guarantees enforceable in Courts of law and that it was no use laying down

34
The Constituted Assembly which had been elected for undivided India and held its first sitting in the
9thDecember, 1946, reassembled on the 14 August, 1947, as the sovereign Constituent Assembly for
theDominion of India, D. D. Basu, Introduction to the Constitution of India 18 (Lexis Nexis Butterworths
Wadhwa, Nagpur, 20th edn., 2009).
35
The Resolution could not be passed earlier due to the non-participation of the Muslim League in the
Constituent Assembly. But when the Muslim League purposely avoided its participation, the Assembly
unanimously adopted the Resolution on 22 January 1947. For reasons of its non-participation.
36
II Constitutional Assembly Debates at 273.
37
Reference in this connection was made to Amendments 1 -X, XIII-XV and XIX to the Constitution of USA,
Articles 4, 31, 44, 45, 49, 50, 55, 58, 60 and 65 of the Swiss Constitution; Articles 109-160 of the German
Constitution; Articles 118-128 of the Constitution of the USSR and Articles 40-44 of the Constitution of
Ireland.
38
He was a member of the Imperial Legislative Assembly, and from 1946 was a member of the Indian
Constituent Assembly, from 1948 serving as Union Minister for Railways and Transport in Jawaharlal Nehru's
cabinet. See “New Lieutenant-Governors” The Hindu, February 15, 1952.
precepts which remained unenforceable or ineffective.

On 27 March 1947, the Sub-Committee came to the conclusion that clauses relating to the
right to work etc., right to primary education, to secure living wages etc. recommended by
Munshi were not justiciable and could not be included in the chapter of justiciable rights. The
first set of Directive Principles of social policy were framed by the Sub Committee on 30
March 1947.

The next meeting of Sub-Committee took place on 31 March 1947 and it was decided to
introduce the Directive Principles of social policy, as they were called, with a Preamble
explaining that they were for the general guidance of the Government and were not
cognizable in any Court. The Preamble read as “The principles of social policy set forth in
this Part are intended for the general guidance of the appropriate Legislatures and
Government in India (hereinafter called collectively as the State). The application of these
principles in legislation and administration shall be the care of the State and shall not be
cognizable by any Court.

Deliberations of the Advisory Committee on Directive Principles of State Policy

The Advisory Committee met on 21 and 22 April 1947, to discuss the final Draft Report
submitted by the Sub-Committee on Fundamental Rights and the interim report of the Sub-
Committee on Minorities. Vallabh Bhai Patel, the Chairman of the Advisory Committee
observed that the report on non-justiciable Fundamental Rights was yet to be discussed by the
Committee and the desirability of transferring certain clauses from one Part to another could
be discussed at the appropriate time. 39

Directive Principles of State Policy in Rau’s Draft Constitution

The Constituent Assembly, after a brief discussion in the supplementary report of the
Advisory Committee on Fundamental Rights, Minorities etc. on 30 August 1947, sent it to
the Constitutional Advisory for being adopted in the Draft Constitution and for further
consideration by the Drafting Committee.

In the Draft Constitution of 7th October 1947,40 prepared by the Constitutional Advisor, B.N.
Rau, all the provisions regarding Fundamental Rights and Directive Principles were included
in Part III which was entitled as “Fundamental Rights including Directive Principles of State
Policy”. This Part was divided into three chapters, the first containing general provisions, the
second Fundamental Rights, and the third, Directive Principles of State Policy. The Preamble
of the fundamental principles of Government found place in Rau’s draft in Chapter 1 as
clause 10 and the “principles” in Chapter III as clauses 31 to 41.

Deliberations of the Drafting Committee on Directive Principles of State Policy

On 29 August 1947, the Assembly appointed a Drafting Committee to scrutinize the Draft

39
Interim Report of the Advisory Committee on Fundamental Rights 23 April 1947
40
B. Shiva Rao, The Framing of India’s Constitution: A Selected Documents 3 (Indian Institution of Public
Administration, New Delhi, Vol.III, 1968).
Constitution prepared by Rau. Dr. Ambedkar was elected Chairman of the Committee. The
Drafting Committee started its deliberations on the Draft Constitution with effect from 27
October 1947. The provisions relating to Directive Principles of State Policy came before the
Committee for consideration on 30 October 1947. It was decided that the Directive Principles
of State Policy should be transferred from Part III to a new Part. It was further decided that
clause 10 of Chapter I entitled “General” relating to the principles of policy set forth in
Chapter III should also be transferred to a new Part containing the Directive Principles of
State Policy. 41It appears that the Committee wanted to be more specific about the position of
Fundamental Rights vis-a-vis Directive Principles of State Policy. Therefore, it thought it
better to integrate all the provisions concerning the Directive Principles of State Policy at one
place.

At the end of the discussion, Rajendra Prasad, the President of the Constituent Assembly
gave a very illuminating speech. He described the task accomplished by the Assembly as of
“tremendous magnitude”. He observed that the success or failure of the Constitution would
depend on those who operate it. After all, a Constitution like a machine is a lifeless thing. It
acquires life because of the men who control it and operate it and India needs today nothing
more than a set of honest men who will have the interest of the country before them.

Adoption of Directive Principles and Commencement of the Constitution, 1950

The Constitution as settled by the Constituent Assembly was adopted on 26 November 1949
and came into force on 26 January 1950. Part IV of the Constitution as enforced dealt
exclusively with the Directive Principles of State Policy.

CLASSIFICATION

The Directive Principles may be classified into 3 broad categories—

 Socialistic and economic directives

 Gandhian and
 Liberal-intellectual.

(1) Socialistic Directives

Principal among this category of directives are (a) securing welfare of the people (Art. 38) (b)
securing proper distribution of material resources of the community as to best sub serve the
common-good, equal pay for equal work, protection of childhood and youth against
exploitation. etc. (Art.39), (c) curing right to work, education etc. Art. (41), (d) securing just
and humane conditions of work and maternity relief (Art. 42) etc.

(2) Gandhian Directives

It contains directives (a) to organize village panchayats (Art. 40), (b) to secure living wage,
decent standard of life, and to promote cottage industries (Art.43), (c) to provide free and
compulsory education to all children up to 14 years of age (Art. 45), (d) to promote economic
41
Minutes of the Proceedings of the Drafting Committee.
and educational interests of the weaker sections of the people, particularly, the scheduled
castes and scheduled tribes, (e) to enforce prohibition of intoxicating drinks and cow-
slaughter and to organize agriculture and animal husbandry on scientific lines (Arts. 46-48).

(3) Liberal intellectual directives

Principal among such directives are (a) to secure uniform civil code throughout the country
(Art.44), (b) to separate the judiciary from the executive (Art.50), (c) to protect monuments
of historic and national importance and (d) to promote international peace and security.

On the whole, Part IV contains a formidable list of directives given to the executive and the
legislatures to follow in issuing orders or making laws. These directives make India a “plastic
state.” The directives may be used by any party with any ideology. In fact, the Directive
Principles are codified versions of democratic socialist order as conceived by Nehru with an
admixture of Gandhian thought.

Sir B. N. Rau regarded DPSP as “moral precepts” with an educative value. Ambedkar
considered them as powerful instruments for the transformation of India from a political
democracy into an economic democracy. The directive principles according to Granville
Austin, are “positive obligations”… to find a piddle way between individual liberty and
Public good. “The directives constitute a sort of “instrument of instruction” to all
governments in the great task of transforming a laissez-fire society into a welfare state, a
socialistic pattern of society and eventually into a socialist society.

OBJECT AND NEED

Directive Principles of State Policy lay down a comprehensive social, economic programme
for the governance of the country, therefore often referred to as socio-economic rights as
distinguished from the political rights( fundamental rights).

While debating on DPSP in the Constituent Assembly, Dr. Ambedkar stated on 19 November
1948 as given below high lighting that the DPSP shall be the basis of future governance of
the country:42

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.

Dr BR Ambedkar further stated “Our Constitution lays down what is called Parliamentary
Democracy. By Parliamentary Democracy we mean “one man one vote”.

Directive Principles of State Policy aim to create social and economic conditions under which
the citizens can lead a good life. They also aim to establish social and economic democracy
through a welfare state. Though the Directive Principles are not-justiciable rights of the
people but fundamental in the governance of the country, it shall be the duty of the State to

42
Constituent Assembly of India - Volume VII". 19 November 1948.
apply these principles in making laws as per Article 37. Besides, all executive agencies of
union and states should also be guided by these principles. Even the judiciary has to keep
them in mind in deciding cases.43

As Per Article 37, state and union governments, as duty, shall make further detailed policies
and laws for implementation considering DPSPs as fundamental policy. In contrary to Article
37, many policies have been implemented by state and union governments which go against
the DPSPs such as using intoxicating drinks as source of major tax revenue instead of
implementing prohibition for better health of people, separation of judiciary from executive,
uniform civil code for the citizen, etc. When the union government feels that a DPSP is no
longer useful to the nation, it shall be deleted from Constitution by bringing a constitutional
amendment to remove ambiguity in policy making / direction. Judiciary can repeal any
policy/law devised by the government which is diametrically opposite to any DPSP.

Features of the Directive Principles

1. The term Directive Principles of State Policy signifies the ideals that the State should
keep in mind while making policies and enacting laws. These are the constitutional
instructions or recommendations to the State in legislative, executive and
administrative matters. According to Article 36, the term ‘State’ in Part IV has the
same meaning as in Part III dealing with Fundamental Rights. Therefore, it includes
the legislative and executive organs of the central and state governments, all local
authorities and all other public authorities in the country.

2. The Directive Principles resemble the ‘Instrument of Instructions’ enumerated in the

Government of India Act of 1935. According to Dr B. R. Ambedkar, ‘the Directive
Principles are like the instrument of instructions, which were issued to the Governor-
General and to the Governors of the colonies of India by the British Government
under the Government of India Act of 1935. What is called Directive Principles is
merely another name for the instrument of instructions. The only difference is that
they are instructions to the legislature and the executive’.

3. The Directive Principles constitute a highly extensive economic, social and political
programme for a modern democratic State. They aim at realising the high ideals of
justice, liberty, equality and fraternity as outlined in the Preamble to the Constitution.
They embody the concept of a ‘welfare state’ and not that of a ‘police state’, which
existed during the colonial era. In brief, they seek to establish economic and social
democracy in the country.

4. The Directive Principles are non-justiciable in nature, that is, they are not legally
enforceable by the courts for their violation. Therefore, the government (Central, state
and local) cannot be compelled to implement them. Nevertheless, the Constitution
(Article 37) itself says that these principles are fundamental in the governance of the

43
Tayal, B.B. & Jacob, A Indian History, World Developments and Civics, (2005), pg. A-39 to A-40
 country and it shall be the duty of the State to apply these principles in making laws.

5. The Directive Principles, though non-justiciable in nature, help the courts in

examining and determining the constitutional validity of a law. The Supreme Court
has ruled many a times that in determining the constitutionality of any law, if a court
finds that the law in question seeks to give effect to a Directive Principle, it may
consider such law to be ‘reasonable’ in relation to Article 14 (equality before law) or
Article 19 (six freedoms) and thus save such law from unconstitutionality

ARTICLE 36-51
Article 36. Definition In this Part, unless the context otherwise requires, “the State”44 has the
same meaning as in Part III.

Article 37 : Application of the principles contained in this Part

The provisions contained in this Part shall not be enforceable by any court, but the principles
therein laid down are nevertheless fundamental in the governance of the country and it shall
be the duty of the State to apply these principles in making laws.

In Minerva Mills v. Union of India45the court said that Article 37 contains the positive
mandate to state to apply these principles in making laws.

In Charu Khurana v. Union of India46it was laid down, Directive principles have been
regarded as soul of the Constitution as India is a welfare state. They provide for guidance to
interpretation of fundamental rights of citizens as also statutory rights.

In S. Sellasamy v. Dstt. Collector47 the court held that, it’s the duty of the state to enforce the
directive principles and same can be achieved by harmonious construction of the provisions
laid therein. Also good governance can only be achieved by reading the part III and IV of the
Constitution together.

Article 38 : State to secure a social order for the promotion of welfare of the people

(1) The State shall strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political, shall
inform all the institutions of the national life.

(2) 48The State shall, in particular, strive to minimise the inequalities in income, and
endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst
individuals but also amongst groups of people residing in different areas or engaged in

44
Unless the context otherwise requires, the State includes the Government and Parliament of India and the
Government and the Legislature of each of the States and all local or other authorities within the territory of
India or under the control of the Government of India. Article 12 of The Constitution Of India 1949.
45
AIR 1980 SC 1789
46
AIR 2015 SC 839
47
Judgememt dated 11 May 2017.
48
Constitution (44 Amendment) Act, 1978, sec 9.
different vocations.

Dr. Ambedkar clarified as given below in the Constituent Assembly debates on Article 38
high lighting its inevitable implementation.

... The word 'strive' which occurs in the Draft Constitution, in judgement, is very important.
We have used it because our intention is even when there are circumstances which prevent
the Government, or which stand in the way of the Government giving effect to these Directive
Principles, they shall, even under hard and unpropitious circumstances, always strive in the
fulfilment of these Directives. That is why we have used the word 'strive'. Otherwise, it would
be open for any Government to say that the circumstances are so bad, that the finances are so
inadequate that we cannot even make an effort in the direction in which the Constitution asks
us to go49.

Air India Statutory Coorporation v. United Labour Union50

Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits tribal’s
and deprived sections of the society and so elevate them to the level of equality to live a life
with dignity of person

Article 39 : Certain principles of policy to be followed by the State

The State shall, in particular, direct its policy towards securing –

(a) that the citizen, men and women equally, have the right to an adequate means of
livelihood;

(b) that the ownership and control of the material resources of the community are so
distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth
and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children
are not abused and that citizens are not forced by economic necessity to enter avocations
unsuited to their age or strength;

(f) 51that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.

Article 39(a) JUDICIAL APPROACH

49
Constituent Assemblu Debates, Vol III 494-95.
50
AIR 1997 SC 645
51
Constitution 42 Amendment Act, 1976, sec 7.
In State of Karnataka v. Ranganatha52 it was held that, Nationalisation of material resources
of community, which are held by individuals, which have to be widely distributed in order to
sub-serve common good.

State of Tamil Nadu v. Abu Kavirbai53 Nationalisation of transport services was upheld by the
court as an act done to uphold the directives under Article 39(b) and (c) of the Constitution.

Minerva Mills v. Union of India54 taking management of a sick industry under the Sick
Textile Undertaking ( Nationalisation ) Act 1974 was upheld by the court as a valid Act under
Artcile 31-C of the Constitution.

Mahavir Metal Works v. Union of India55 it was laid down, Deprivation of an owner of the
ownership or control of property which has been used by him to evade tax liability or to
conceal his income, to detriment of the interest of the community is a valid action on the part
of the state justified under Article 39(b) of the Constitution.

Legislations :-

Nationalization of the Insurance (1956), The nationalisation of 14 leading commercial banks

(1969), Nationalisation of general insurance (1971), abolition of privy purses (1971) and so
on Equal remuneration act (1976) is aimed at providing equal pay for equal work for both
men and women.

Article 39(d) Principle of equal pay for equal work and Indian Supreme Court

The principle of equal pay for equal work is enshrined in Article 39(d) of the Constitution.
For the first time, this principle was considered in Kishori Mohanlal Bakshi v. Union of
India56 in 1962.Supreme Court then ruled that it was not capable of being enforced in a court
of law. The Apex court changed its mind in 1982 when in Randhir Singh v. Union of India57,
through a 3 judge bench, it held that:

The principle of ‘equal pay for equal work’, which meant equal pay for everyone irrespective
of sex, was deducible from preamble and Articles 14,16 and 39(d) of the Constitution. The
principle of equal pay for equal work was held to be applicable to cases of unequal scales of
pay, based on classification or irrational classification, though both sets of
employees(engaged on temporary and regular basis, respectively) performed identical duties
and responsibilities.

The supreme court further held that equal pay for equal work though not a fundamental right
is certainly a constitutional goal and therefore capable of enforcement through constitutional
remedies under Article 32 of the Constitution.

52
AIR 1978 SC 215
53
1984 1 SCC 516
54
AIR 1986 SC 2030
55
AIR 1977 Del 13
56
AIR 1962 SC 1139
57
AIR 1982 SC 879 , 1982 SCR (3) 298
In DS Nakara v. Union of India58 where the subject matter was related to pension, not a wage,
speaking through the constitutional bench of five judges, it observed that:

Article 38(1) enjoins the State to strive to promote the welfare of the people by securing and
protecting as effective as it may a social order in which justice‑ social, economic and political
shall inform all institutions of the national life. In particular, the State shall strive to minimise
the inequalities in income and endeavour to eliminate inequalities in status, facilities and
opportunities.Art.39 (d) enjoins a duty to see that there is equal pay for equal work for both
men and women and this directive should be understood and interpreted in the light of the
judgement of this court in Randhir Singh v.Union of India.

The jurisprudence developed through these two case laws was recently applied by the Apex
Court in the case of State of Punjab v.Jagjit Singh59 where it held that temporarily engaged
employees(daily wage employees, ad‑hoc appointed on casual basis , contractual employees
and the like),are entitled to minimum of the regular pay scale, along with dearness
allowance(as revised from time to time )on account of their performing same duties, which
are discharged by those engaged on regular basis, against sanctioned posts.

Bhagwan v. State of Haryana60 Court held that Article 39(d) applies to temporary employees
also provided their duties are identical.

In State of Haryana v. Charanjitt Singh61 the Court held that, Equal of post and equal of pay
structure being complex matters are to be generally left to executive and expert bodies like
pay commission.

Article39(f) CHILD LABOUR

Child Labour Act

The child labor prohibition and regulation act (1986) aims at prohibiting the abuse of
tender age of the children Has now been replaced by Child Labour (Prohibition and
Regulation) Amendment Bill, 2016. This act amends the Child Labour (Prohibition and
Regulation) Act, 1986 by widening its scope against child labour and provides for stricter
punishments for violations62. The important revisions to the Child Labour Act as a result of
the 2016 Amendment Act are as follows:

1. Definition of ‘child’: The 2016 Amended Act has brought the law in sync with the
Right to Education Act by amending the definition of ‘child’ to mean a person who

58
AIR 1983 SC 130
59
CIVIL APPEAL NO. 213 OF 2013 judgement in 2016
60
AIR 1987 SC 2049.
61
AIR 2006 SC 161
62
Availavble at:- http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-
view/article/indias-law-on-child-labour-prohibition ( last visited: 14 March 2018)
 has not completed 14 years or such age as specified under the Right to Education Act,
whichever is higher.
2. Definition of ‘adolescent’ introduced: ‘Adolescent’ has been defined to mean a person
who has completed his 14th year but not completed his 18th year.
3. Prohibition of child labour: A complete ban has been imposed on employing children,
except in the following two cases:
o Children are allowed to help in his/her family or family enterprise(s) provided
that (i) such enterprise is not involved in hazardous processes and (ii) the work
is carried out after school hours or during vacations.
o Children are allowed to work in the audio-visual entertainment industry
including advertisement, films, television serials or any such other
entertainment or sports activities except circus subject to (i) compliance with
prescribed conditions and adoption of safety measures, and (ii) the work does
not affect the school education of the child.
4. Prohibition on employment of adolescents: New provision prohibiting employment of
adolescents in hazardous occupations and processes introduced.
5. Child labour made a cognizable offence: Any offence committed by an employer
which is punishable under the Child Labour Act has been made a cognizable offence.
Accordingly, the authorities can file a first information report and commence
investigations into the offence without a court order and can arrest without a warrant.
6. Punishments for contravention enhanced: While the punishment for employers has
been significantly enhanced, the punishment for parents / guardians has been
relaxed63.

7. Punishment for parents/guardians relaxed: There shall not be any punishment in case
of a first offence by parents/guardians. In case of a second and subsequent offence,
the penalty prescribed is a maximum fine of Rs. 10,000.
8. Powers of District Magistrate: Powers have been vested with the District Magistrate
to ensure that the provisions of the amended law are properly enforced.
9. Constitution of Child and Adolescent Labour Rehabilitation Fund: Provision has been
made for constitution of a special fund by the appropriate government in every district
or two or more districts, for rescue and rehabilitation of children and adolescents64.

63
Standing Committee on Labour, Report on the Child Labour (Prohibition and Regulation) Amendment
Bill,2012(No.40),15thLokSabha(2013),Availableathttp://www.prsindia.org/uploads/media/Child%20Labour/SC
R-child%20labour%20bill.pdf>( last visited: 6 April 2018)
 10. Compounding of offences: Provision has been made for compounding of offences on
application made by the accused to the District Magistrate.
11. Inspection and Monitoring: Provision has been made for periodic inspection and
monitoring by the appropriate government of places where employment of children is
prohibited and hazardous occupations or processes are carried out.
12. The number of hazardous occupations has been brought down from 83 to 3. The three
occupations are mining, inflammable substances, and hazardous processes under the
Factories Act. It empowers Union Government to add or omit any hazardous
occupation from the list included in the act.

Criticism of the Amended Act

The Child Labour (Prohibition and Regulation) Amendment Act, 2016, seems
progressive. It prohibits “the engagement of children in all occupations and of adolescents in
hazardous occupations and processes” wherein adolescents refers to those under 18 years;
children to those under 14. The Act also imposes a fine on anyone who employs or permits
adolescents to work. However, on careful reading, the new Act has many loopholes:-

Firstly, it has slashed the list of hazardous occupations for children from 83 to include
just mining, explosives, and occupations mentioned in the Factory Act1948. This means that
work in chemical mixing units, cotton farms, battery recycling units, and brick kilns, among
others, have been dropped. Further, even the the ones listed as hazardous can be removed,
according to Section 4 not by Parliament but by government authorities at their own
discretion.65The Act is silent on issues arising as to the rights of children engaged in
hazardous occupations in the unorganised sector. The gap left unaddressed by the 2016 Act
could prove severely detrimental to the regulation of child labour in the unorganised sector.
Further, the Report of the Standing Committee on Labour, 2013 66 had also recommended that
the meaning of hazardous occupations and processes should be widened to include all those

64
Id.
65
Ruchira Gupta, A law that allows child labour, The Hindu, August 10, 2016
http://www.thehindu.com/opinion/columns/A-law-that-allows-child-labour/article14560563.ece ( last visited: 26
March 2018)
66
Standing Committee on Labour, Report on the Child Labour (Prohibition and Regulation)
AmendmentBill,2012(No.40),15thLokSabha(2013),Availableathttp://www.prsindia.org/uploads/media/Child%2
0Labour/SCR-child%20labour%20bill.pdf>( last visited: 26 March 2018)
occupations/processes that may jeopardise health, safety and morals of adolescents, in line
with the International Labour Organisation Convention 138.67

Secondly, section 3 in Clause 5 allows child labour in “family or family enterprises”

or allows the child to be “an artist in an audio-visual entertainment industry”. Since most of
India’s child labour is caste-based work, with poor families trapped in intergenerational debt
bondage, this refers to most of the country’s child labourers. The clause is also dangerous as
it does not define the hours of work; it simply states that children may work after school
hours or during vacations.

Thirdly, in a move to strike a balance between the need for education of children and
the reality of socio-economic conditions in India, the government has carved out certain
exceptions to the ban on engaging/employing children by allowing children to help family or
family run enterprises. Hence the exception paves way for employers to take advantage of
“family enterprises” to employ child workers. In other words, prohibited activities could
occur under the guise of ‘permitted exceptions’. Thus the exceptions permitting certain
occupations outside school hours may have potential loopholes which could increase the
vulnerability of child workers.

Instead of imposing stricter penalties and enforcing punitive actions, the amendment
has relaxed the provision with respect to punishment for parents and guardians who
contravene the law, which earlier, was the same as that for employers. Also, the amendment
does not provide for any steps/measures to sensitize employers, parents and society to ensure
accountability in case there are violations.

Moreover, recent NCRB data shows that around 25 per cent of children raped were
targeted at work by their employers and co-workers. 68 Since the 2016 Act prohibits
employment of children in all occupations and processes, the power to make periodic
inspections of places of employment, reposed in the appropriate Government, should not
have been limited to hazardous occupations only, and should have been expanded to
cover all places of work and occupations. Nonetheless, the 2016 Act appears oblivious to
these pressing concerns.

67
The Minimum Age Convention, 1973 concerning minimum age for admission to employment.
68
Deeptiman Tiwary, NCRB data: 25 per cent of children raped were targeted at work by their
employers and co-workers, The Indian Express (30-8-2016), Available at
http://indianexpress.com/article/india/india-news-india/ncrb-data-rape-child-minor- workplace-by-
employee-crime-3005142/ (last visited: 24 March 2018)
JUDICIAL APPROACH

In People Union for Democratic Right v. Union of India,69 the Supreme Court considered the
meaning and scope of the phrase ―hazardous employment. In this case inter alia, the
question before the Supreme Court was that whether the employment of children in the
construction work amounts to employments in hazardous concerns and whether it violated the
Employment of Children Act, 1938. The Supreme Court answered in affirmative.

In Labourers Working on Salal Hydro Project v. State of Jammu and Kashmir and
others,70Justice Bhagwati observed that construction work is a hazardous employment and
therefore under Article 24 of the Constitution, no child below the age of 14 years can be
employed in construction works by reason of the prohibition, enacted in Article 24 and this
constitutional prohibition must be enforced by the Central Government. The Supreme Court
also suggested that whenever the Central Government undertakes a construction project
which is likely to last for some time, the Central Government should provide that children
who are living at or near the project site should be given facilities for schooling.

In M.C. Mehta v. State of Tamil Nadu and others.71The Honourable Supreme Court observed
that working conditions in the match factories are such that they involve health hazards in
normal course and apart from the special risk involved in the process of manufacturing, the
adverse effect is a serious problem. The Court found that the employment of children in the
production of matches and fireworks violated the spirit of the Constitution of India, in
particular its Directive Principles of State Policy. The Supreme Court relied on articles 39(f)
and 45 in making its judgment72.

In Narender Malav v. State of Gujarat,73 in this case a Public Interest Litigation was filed to
the apex court related to the issues of child labour in the salt mines of Gujarat. The court
requested the amicus curiae and a nongovernmental organisation, SEWA, to enquire and
investigate the issue of child labour, the welfare and well being of salt mine workers and their
families in the Saurashtra and Kutch areas of the State of Gujarat, particularly with reference
to education facilities for their children and availability of a adequate / proper housing and
medical facilities and to report to the court with in three months.The court directed the state

69
AIR 1982 SC 1473.
70
AIR 1984 SC 177.
71
AIR 1991 SC 417.
72
(1991) 1 SCC 283
73
2004 (10) SCALE
government through the Assistant Labour Commissioner to provide all the assistance for this
purpose.

In Bandhu Mukti Morcha v. Union of India74 in this case the court directed the
government to take a steps to stop employment of children in carpet industry in the State of
Uttar Pradesh and to appoint a Committee to investigate into their conditions of
employment, and to issue such welfare directives as are appropriate for total
prohibition on employment of children below 14 years and directing the respondent to give
them facilities like education, health, sanitation, nutritious food etc.

Bachpan Bachao Andolan v. Union of India & Others75The Court ordered to implement the
fundamental rights of children under Article 21A of the Constitution, by the central
government by issuing suitable notifications prohibiting the employment of children in
Circuses within two months. The court has given a detailed guidelines brought out for
the enforcement of the Juvenile Justice (Care and Protection) Act, 2000.

Child labour has been an international concern because it damages, spoils and destroys the
future of the nation. The problem of child labour is a serious matter not only in India but also
in other developing countries. The child labour, must be eradicated through proper
planning, by developing a poverty focussed, development oriented strategy and by imposition
of restrictions in employment of the children. Indian being a developing country the total ban
of employment may drive the children and mass them up into destitution and other
mischievous environment, making them vagrant, hard criminals and social risks etc.

Article 39A76 : Equal justice and free legal aid

The State shall secure that the operation of the legal system promotes justice, on a basis of
equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities.

Legal aid

Legal Aid implies giving free legal services to the poor and needy who cannot afford the
services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or
before an authority. Legal Aid is the method adopted to ensure that no one is deprived of
professional advice and help because of lack of funds. Therefore, the main object is to

74
AIR 1997 SC 2218.
75
2011 5 SCC 1
76
Constitution (42nd Amendement) Act 1976
provide equal justice is to be made available to the poor, down trodden and weaker section of
society. In this regard Justice P.N. Bhagwati rightly observed that:77

The legal aid means providing an arrangement in the society so that the missionary of
administration of justice becomes easily accessible and is not out of reach of those who have
to resort to it for enforcement of its given to them by law, the poor and illiterate should be
able to approach the courts and their ignorance and poverty should not be an impediment in
the way of their obtaining justice from the courts. Legal aid should be available to the poor
and illiterate, who don't have access to courts. One need not be a litigant to seek aid by means
of legal aid.

The Supreme Court of India got a major opportunity to make an emphatic pronouncement
regarding the rights of the poor and indigent in judgment of Hussainara Khatoon78where the
petitioner brought to the notice of Supreme Court that most of the under trails have already
under gone the punishment much more than what they would have got had they been
convicted without any delay. The delay was caused due to inability of the persons involved to
engage a legal counsel to defend them in the court and the main reason behind their inability
was their poverty. Thus, in this case the court pointed out that Article 39-A emphasized that
free legal service was an inalienable element of reasonable, fair and just‘ procedure and that
the right to free legal services was implicit in the guarantee of Article 21.

Two years later, in the case of Khatri v. State of Bihar79, the court answered the question the
right to free legal aid to poor or indigent accused who are incapable of engaging lawyers. It
held that the state is constitutionally bound to provide such aid not only at the stage of trial
but also when they are first produced before the magistrate or remanded from time to time
and that such a right cannot be denied on the ground of financial constraints or administrative
inability or that the accused did not ask for it. Magistrates and Sessions Judges must inform
the accused of such rights. The right to free legal services is an essential ingredient of
reasonable, fair and just procedure for a person accused of an offence and it must be held
implicit in the guarantee of Article 21 and the State is under a constitutional mandate to
provide a lawyer to an accused person if the circumstances of the case and the needs of
justice so require…The State cannot avoid this obligation by pleading financial or
administrative inability or that none of the aggrieved prisoners asked for any legal aid.

In Suk Das v. Union Territory of Arunachal Pradesh80, Justice P.N. Bhagwati, emphasized
the need of the creating the legal awareness to the poor as they do not know the their rights
more particularly right to free legal aid and further observed that in India most of the people
are living in rural areas are illiterates and are not aware of the rights conferred upon them by

77
Speaking through the Legal Aid Committee formed in 1971 by the State of Gujarat on Legal Aid with its
Chairman, Mr. P.N. Bhagwati along with its members, Mr. J.M. Thakore, A.G., Mr. VV Mehta, Deputy
Speaker, Gujarat Vidhan Sabha, Mr. Madhavsinh F. Solanki, M.L.A, Mr. Girishbhai C. Patel,Principal, New Lal
College, Ahemdabad. His Lord ship answered to the question of inequality in the administration of justice
between the rich and the poor.
78
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.
79
Khatri v. State of Bihar, AIR 1981 SC 262.
80
AIR 1986 SC 991.
law. Even literate people do not know what are their rights and entitlements under the law. It
is this absence of legal awareness they are not approaching a lawyer for consultation and
advise.

In State of Mahrashtra v. Manubhai Pragaji Vashi81 the Supreme court stated that failure to
provide free legal aid to an accused at the cost of the state unless refused by the accused,
would vitiate the trial.

M.H. Hoskot v. State of Maharashtra82 in this J. KrishenIyer stated that, providing Legal aid
is the states duty not government’s charity.

Supreme Court in State of Haryana v. Darshana Devi83, held that "the poor shall not be
priced out of the justice market by insistence on court-fee and refusal to apply the exemptive
provisions of order XXXIII, CPC. The state of Haryana, mindless of the mandate of equal
justice to the indigent under the magna carta of republic, expressed in article 14 and stressed
in article 39A of the constitution, has sought leave to appeal against the order of the high
court which has rightly extended the 'pauper' provisions to auto-accident claims. Order
XXXIII will apply to tribunals, which have the trappings of the civil court

Legal Aid in India: Statutory Recognition

Though there was a statutory procedure providing free legal aid84 by appointing the advocate
for defending criminal case and by exempting court fees in civil cases, it was not really
making any significant impact on the ability of the underprivileged people to get the judicial
redressal for their grievances. Hence under tremendous constitutional persuasion from the
Supreme Court the Legal Services Authorities Act, 1987 was passed by the parliament of
India. The Act prescribes the criteria for giving legal services to the eligible persons. It makes
a person eligible for assistance under the act if he is -

(a) a member of a Scheduled Caste or Scheduled Tribe;

(b) a victim of trafficking in human beings or begar as referred to in Article 23 of the

Constitution;

(c) a woman or a child;

(d) a mentally ill or otherwise disabled person;

(e) a person under circumstances of undeserved want such as being a victim of a mass
disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or

(f) an industrial workman; or

(g) in custody, including custody in a protective home or in a juvenile home.

81
(1995) 5 SCC 730
82
(1978) 3 SCC 81.
83
AIR 1972 SC 855.
84
Section 304(1) of Code of Criminal Procedure and Order 33, Rule 17 of Code of Civil Procedure.
(h) of in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g)
of section 2 of the Mental Health Act, 1987; or

(i) A person whose annual income less than rupees fifty thousand or such other higher
amount as may be prescribed by the State Government85.

A nationwide network has been envisaged under the Act for providing legal aid and
assistance. National Legal Services Authority is the apex body constituted to lay down
policies and principles for making legal services available under the provisions of the Act and
to frame most effective and economical schemes for legal services. In every State a State
Legal Services Authority is constituted to give effect to the policies and directions of the
Central Authority (NALSA) and to give legal services to the people and conduct Lok Adalats
in the State. State Legal Services Authority is headed by the Chief Justice of the State High
Court who is its Patron-in-Chief. A serving or retired Judge of the High Court is nominated
as its Executive

Article 40 : Organisation of village panchayats

The State shall take steps to organise village panchayats and endow them with such powers
and authority as may be necessary to enable them to function as units of self-government.

Three tier panchayati raj system (at village, Taluka and Zilla levels) has been introduced to
translate into reality Gandhijis dream of every village being a republic. The 73rd amendment
act (1992) has been enacted to provide constitutional status and protection to these panchayati
raj institutions.

The word “panchayat” literally means “assembly” (ayat) of five (panch) wise and respected
elders chosen and accepted by the local community.86Traditionally, these assemblies settled
disputes between individuals and villages. British established local self-government in 1869
when they made a District Local Fund in Bombay. This was a nominated body. In 1882, Lord
Ripon established local self- government in India with the seating up of district local boards.
District boards and councils were established in Maratheada and vidarbh.

The next important piece of legislation was the Bombay village panchyat Act 1920. Under
this Act, the Panchayats was constituted into an elected body. Members were elected by adult
male villagers and the Panchayat was entrusted with local functions, mainly of a civil nature.
Panchayat were empowered to collect compulsory house taxes.The Bombay Village
Panchayat Act 1920 empowered village Panchayats to take up various activities, including
some social-economic functions, and gave the power to heavy taxes and duties in order to
increase their income.

After the reorganisation of states in 1956, laws to introduce the Panchayat system in different
stator were gradually enacted. This process was almost complete in Andhra Pradesh, Assam,

85
Section 12 of the Legal Services Authorities Act, 1987.
86
http://www.publishyourarticles.net/knowledge-hub/essay/how-to-write-an-essayarticle-on-village-
panchayat.html as accessed on 15th Mar, 2108.
Madhya Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Utter Pradesh and Bombay.87

One such method is the LokAdalat 1958. Under the Act, a district village for the supervision
and control of village Panchayats.88These Mandals were, however, abolished in 1962.Apart
from this enactment in various states, a direction is contained in the Constitution of India in
Article 40 which says that “The State shall take steps to organize village Panchyats and
endow them with such powers and authority as may be necessary to enable them to function
as units of self-government.89

Under the new enactment, a Gram Sabha of adult residents in the village was constituted, and
it was made obligatory on the Panchayats to hold meetings of the Gram Sabha within two
months from the commencement of every financial year and to prepare an annual statement
of accounts to be placed before such a meeting.

Village Panchayats are controlled and supervised by ZillaParishads, PanchayatSamitis and

their officers. The state government also has direct control over Panchayats through the
Collector of the district. District Village Panchayat officers work under ZillaParishads to
supervise and control the village Panchayats, and are appointed by the state
governments.There is however, no proper machinery for the public to air their grievances and
control malpractice in ZillaParishads. Vested interests in the government have always been
found to be sheltering corrupt elements in the system and they are now well
entrenched.Government control over this institution has seldom proved to be effective and
the poor masses at the grassroots level are yet to get benefit from the existing system of
Panchyati Raj.In view of these shortcomings, part IX, consisting of Article 243 to 243 was
inserted by the Constitution (73 rd Amendment) Act, 1992.

Recommendations of Balwant Rai Mehta Committee

The BalwantRai Mehta Committee was a committee appointed by the Government of India in
January 1957 to examine the working of the Community Development Programme (1952)
and the National Extension Service (1953) and to suggest measures for their better working.
The recommendations of the committee were approved by NDC in January 1958 and this set
the stage for the launching of Panchayati Raj Institutions throughout the country. The
committee recommended the establishment of the scheme of ‘democratic decentralisation’
which finally came to be known as Panchayati Raj.

(i) Establishment of a 3-tier Panchayati Raj system – Gram Panchayat at the village level,
PanchayatSamiti at the block level, and ZilaParishad at the district level.This system was
adopted by state governments during the 1950s and 60s, as laws were passed to establish
panchayats in various states. It also found backing in the Indian Constitution, with the 73rd
amendment in 1992 to accommodate the idea. The Amendment Act of 1992 contains
provision for devolution of powers and responsibilities to the panchayats both for the

87
Pandey, J.N., “The Constitution Of India”, Central Law Agency, 50th Edition, 2013, Pg. 653.
88
ibid
89
http://freelegaladvisors.com/bareacts/lawsbydetail/1122 as accessed on 25th Mar, 2018.
preparation of economic development plans and social justice, as well as for implementation
in relation to 29 subjects listed in the eleventh schedule of the constitution.90

Ashok Mehta Committee (1977)

In this backdrop in 1977, the Janata government appointed a Committee with Ashok Mehta
as chairman and was entrusted with the task of enquiring into the causes responsiblefor the
poor performance of Panchayati Raj Institutions. It was also asked to suggestmeasures to
strengthen Panchayati Raj Institutions. The committee suggested two tire systemof
Panchayati Raj consisting of ZillaParishads at the district level and MandalPanchayatsatthe
grass root level as against three tier system suggested by the Balwantrai MehtaCommittee.
The committee recommended constitutional protection to the Panchayati RajInstitutions and
further decentralization of power at all levels.91

During 1980’s, two important Committees were appointed to look into localgovernments.
GVK Rao Committee in 1985 and Dr. L.M. Singhvi Committee in 1986. TheGVK Rao
committee recommended the revival of Panchayati Raj Institutions such thatgreater
responsibility of planning, implementation, and monitoring of rural developmentprogrammes
could be assigned to them.

L.M. Singhvi Committee recommended that thePanchayati Raj Iinstitutions should be

constitutionally recognized and protected. New chapter in the constitution should be provided
to define their powers and functions and free and fair election to be conducted through the
election commission.

In the history of Panchayati Raj in India, on 24 April 1993, the Constitutional (73rd
Amendment) Act 1992 came into force to provide constitutional status to the Panchayati Raj
institutions.92

Eleventh Schedule(Article 243G) is also being added by the constitution 73rd amendment.
The list contains 29 items, e.g., land improvement, minor irrigation, animal husbandry,
fisheries, education, women and child development etc. The 11th Schedule thus distributes
powers between the State Legislature and the Panchayat just as the 7th Schedule distributes
powers between the Union and the State Legislature.

Judicial Approach

Bhanumati V. State of U.P93

In the case of removal or disqualification of “Pramukh“ orPradhan” from running the

administration , the “Up-pramukh” or up- Pradhan” prior to such amendment could have
taken over where as the abolition of these office will pave the way for executive interference.

It was also argued that there is no provision of no- confidence motion in chapter IX of the
90
http://youngindian.in/2013/03/balwant-rai-mehta-committee/ as accessed on 15th Mar, 2018.
91
http://www.scribd.com/doc/103469321/panchayat-raj as accessed on 16th Mar, 2018.
92
Aslam, M., “Panchayati Raj In India”, National Book Trust, 2007, Pg. 29.
93
AIR 2010 SC 3096
constitution and therefore incorporation of this principle militates against the principle of
Panchayati Raj institution .

Besides, substitution of the provision ‘more than half’ in place of ‘not less than two third’
i.e. the no confidence resolution to be carried on by simple majority instead of two – third
majority and the reduction of ‘one year’ in place of two year for bringing no- confidence
motion dilutes the principle of stability and continuity which are main purposes behind the
object and reason of constitutional amendments in part IX of the constitution. The SC
dismissed the appeal and held – a constitution is not to give all details of the provisions.

In Articles likes 243A, 243C(1), ,(5), 243D(4), 243X(6),243F(1),(6),243G,243H,

243I(2),(4) the state Legislature has been empowered to make a law to implement the
constitutional provision. Further in view of the “Constitution doctrine of Silence”, the
petitioners arguments cannot be accepted.

Article 41 : Right to work, to education and to public assistance in certain cases

The State shall, within the limits of its economic capacity and development, make effective
provision for securing the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Legislative Initiative:- Maintenance and Welfare of Senior Citizens Act 2007, The Indira
Gandhi National Old age pension scheme(1995) , Annapurna scheme(2000),CM relief fund,
Jan Aushadi scheme(1980) are aimed at promoting article 41.

Article 42 : Provision for just and humane conditions of work and maternity relief

The State shall make provision for securing just and humane conditions of work and for
maternity relief.

In Vishaka v. State of Rajasthan 94Supreme Court laid detailed guidelines on sexual

harassment of women at workplace to provide a conducive environment to women at the
work.

Maternity benefit Act (1961), and the Equal Remuneration Act (1976) have been made to
protect the interests of workers.

The Maternity (Amendment) Bill 201795,an amendment to the Maternity Benefit Act, 1961,
was passed in Lok Sabha on March 09, 2017 , in Rajya Sabha on August 11, 2016 and
received an assent from President of India on March 27,2017.

The Maternity Benefit Act 1961 protects the employment of women during the time of her
maternity and entitles her of a ‘maternity benefit’ – i.e. full paid absence from work – to take
care for her child. The act is applicable to all establishments employing 10 or more persons.

94
(1997) 6 SCC 241
95
Maternity (Amendment) Bill 2017 Available at : http://pib.nic.in/newsite/PrintRelease.aspx?relid=159039 (
Last Visited: 6 April 2018)
Key Amendments

Increased Paid Maternity Leave:

The Maternity Benefit Amendment Act has increased the duration of paid maternity leave
available for women employees from the existing 12 weeks to 26 weeks.

Maternity leave for adoptive and commissioning mothers:

The Maternity Benefit Amendment Act extends certain benefits to adoptive mothers as well
and provides that every woman who adopts a child shall be entitled to 12 weeks of maternity
leave, from the date of adoption.

Work from Home option:

The Maternity Benefit Amendment Act has also introduced an enabling provision relating to
"work from home" for women, which may be exercised after the expiry of the 26 weeks'
leave period. Depending upon the nature of work, women employees may be able to avail
this benefit on terms that are mutually agreed with the employer.

Crèche facility:

The Maternity Benefit Amendment Act makes crèche facility mandatory for every
establishment employing 50 or more employees. Women employees would be permitted to
visit the crèche 4 times during the day.

The Maternity Benefit Amendment Act makes it mandatory for employers to educate women
about the maternity benefits available to them at the time of their appointment.

Criticism

Many private firms may avoid giving jobs to such women who may enter into pregnancy
period as then they have to gave them maternity leave upto 26 weeks(it is quite a long
duration).

The law will benifit only a small percentage of women's who are working in organised sector
ignoring the majority who works in unorganised sectors. Like-Farmers, contractual labours
etc.

Article 43 : Living wage, etc., for workers

The State shall endeavour to secure, by suitable legislation or economic organisation or in

any other way, to all workers agricultural, industrial or otherwise, work, a living wage,
conditions of work ensuring a decent standard of life and full enjoyment of leisure and social
and cultural opportunities and, in particular, the State shall endeavour to promote cottage
industries on an individual or co-operative basis in rural areas.

Legialative Intiatives:-

The Minimum Wages Act (1948), The Payment of Wages Act (1936), The Payment Bonus
Act (1965), The Contract Labour Regulation and Abolition Act (1970), The Bonded Labour
system Abolition Act (1976), The Trade Unions Act (1926), The Factories Act(1948), The
Mines Act (1952), The Industrial Distrubutes Act (1947), The Workmen's Compensation Act
(1923), and so on have been enacted to protect the interests of the labour sections.

Minimum wages Act 1948.

The Minimum Wages Act 1948 is an Act of Parliament concerning Indian labour law that
sets the minimum wages that must be paid to skilled and unskilled labours.

In 2017 the Minister of State for Labour and Employment, elaborated on the initiatives and
continuing efforts of the Government to address the issues and concerns of the Trade Unions
for the welfare of workers. If the norms are implemented then the minimum wage would be
not less than Rs 273 per day which is currently Rs 160 per day

Article 43A : Participation of workers in management of industries96

The State shall take steps, by suitable legislation or in any other way, to secure the
participation of workers in the management of undertakings, establishments or other
organisation engaged in any industry.

Article 43B : Promotion of Co-operative societies97

The state shall endeavour to promote voluntary formation, autonomous functioning,

democratic control and professional management of co-operative societies.

Article 44 : Uniform civil code for the citizen

The State shall endeavour to secure for the citizens a uniform civil code throughout the
territory of India.

Uniform CIVIL CODE

The Supreme Court first directed the Parliament to frame a UCC in the year 1985 in the case
of Mohammad Ahmed Khan v. Shah Bano Begum98, popularly known as the Shah Bano case.
In this case, a penurious Muslim woman claimed for maintenance from her husband under
Section 125 of the Code of Criminal Procedure after she was given triple talaq from him. The
Supreme Court held that the Muslim woman have a right to get maintenance from her
husband under Section 125. The Court also held that Article 44 of the Constitution has
remained a dead letter. The then Chief Justice of India Y.V. Chandrachud observed that

"A common civil code will help the cause of national integration by removing disparate
loyalties to law which have conflicting ideologies"

After this decision, nationwide discussions, meetings, and agitation were held. The then Rajiv

96
Constitution (42nd Amendement) Act 1976, sec 89,
97
Constitution (97th Amendement) Act 2011, sec 3
98
AIR 1985 SC 945
Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women
(Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for
maintenance under Section 125 of the Code of Criminal Procedure..

The second instance in which the Supreme Court again directed the government of Article 44
was in the case of Sarla Mudgal v. Union of India99. In this case, the question was whether a
Hindu husband, married under the Hindu law, by embracing Islam, can solemnise second
marriage The Court held that a Hindu marriage solemnised under the Hindu law can only be
dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to
Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act.
And, thus, a second marriage solemnised after converting to Islam would be an offence under
Section 494 of the Indian Penal Code.

Justice Kuldip Singh also opined that Article 44 has to be retrieved from the cold storage
where it is lying since 1949. The Hon’ble Justice referred to the codification of the Hindu
personal law and held,

"Where more then 80 percent of the citizens have already been brought under the codified
personal law there is no justification whatsoever to keep in abeyance, any more, the
introduction of the ‘uniform civil code’ for all the citizens in the territory of India."

Pragati Varghese v. Cyril George Varghese100 In this case section 10 of the Indian Divorce
Act was challenged under which a wife could claim divorce by proving adultery coupled with
cruelty as a ground for divorce as violative of Articles 14 and 21 of the Constitution. The
Court held that, right to life under Article 21 takes in its sweep a right to life with dignity,
without cruelty, mental or physical and without constant fear of torture and violence. The
right to life guaranteed by the Constitution includes the right to seek dissolution of marriage
if its existence is an unbearable suffering. Section 10 denies the Christian woman the right to
get dissolution of marriage on the grounds of cruelty even when the marital relationship has
been broken. Such a law that compels her to live with a person who is her tormentor till death
is oppressive, arbitrary and violative of Articles 14 and 21 of the Constitution.

Noor Saba Khatoon v. Mohd. Quasim101 the Court held that, children of Muslim parents are
entitled to claim maintenance under Section 125 Cr. P.C. for the period till they attain
majority or are able to maintain themselves, whichever is earlier and in case of females, till
they get married, and this right is not restricted, affected or controlled by divorcee wife’s
right to claim maintenance for maintaining the infant child/children in her custody for a
period of two years from the date of birth of the child concerned under Section 3(1)(b) of the
1986 Act.

Daniel Latif v. Union of India102 a five judge Supreme Court bench upheld the validity of
Muslim Women (Protection of Rights on Divorce) Act 1986 and held that a Muslim divorced

99
AIR 1995 SC 153
100
AIR 1997 Bom 349
101
AIR 1997 SC 3280
102
AIR 2001 SC 3262
women has a right to maintenance even after ‘iddat Period’. If relatives are found incapable
of maintaining the women then the State Wakf Board would pay the maintenance.

The Supreme Court’s latest reminder to the government of its Constitutional obligations to
enact a UCC came in July 2003103 when a Christian priest knocked the doors of the Court
challenging the Constitutional validity of Section 118 of the Indian Succession Act. The
priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section
118 of the said Act was discriminatory against the Christians as it impose unreasonable
restrictions on their donation of property for religious or charitable purpose by will. The
bench comprising of Chief Justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R.
Lakshamanan struck down the Section declaring it to be unconstitutional. Chief Justice Khare
stated that,

"We would like to State that Article 44 provides that the State shall endeavour to secure for
all citizens a uniform civil code throughout the territory of India It is a matter of great regrets
that Article 44 of the Constitution has not been given effect to. Parliament is still to step in
for framing a common civil code in the country. A common civil code will help the cause of
national integration by removing the contradictions based on ideologies."

Thus, the apex court has on several instances directed the government to realise the directive
principle enshrined in our Constitution and the urgency to do so can be inferred from the
same.

Triple Talaq a step towards UCC

Shayara Bano vs Union Of India104

In this case Supreme Court of India declared the practice of Triple Talaq as unconstitutional
by 3:2 majority. Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority
Judgment. Chief Justice Khehar and Justice Abdul Nazeer dissented.

The Muslim Women (Protection of Rights on Marriage) Bill, 2017. On 28 December 2017,
Lok Sabha passed The Muslim Women (Protection of Rights on Marriage) Bill, 2017.105 The
bill make instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by
electronic means such as email, SMS and WhatsApp illegal and void, with up to three years
in jail for the husband.

Article 45 : Provision for free and compulsory education for children106

The State shall endeavor to provide, within a period of ten years from the commencement of
this Constitution, for free and compulsory education for all children until they complete the
age of fourteen years.

103
John Vallamattom v. Union of India AIR 2003 SC 2902
104
Writ Petition (C) No. 118 of 201622 August, 2017
105
Sandeep Phukan, Lok Sabha passes triple talaq bill Available at :
http://www.thehindu.com/news/national/lok-sabha-passes-the-triple-talaq-bill/article22319663.ece (Last Visited
6 April 2018)
106
Constitution (86th Amendment) Act 2002, sec 3.
FREE AND COMPULSORY EDUCATION

The government of India appointed the Education Commission (1964-66) to realize the
constitutional goal set for education. The “common school approach" was recommended for
the promotion of social justice and equity. In 1968, free and compulsory education was
recommended by The National Policy on Education. Further, the NPE of 1986 aimed at a
comprehensive policy framework for the development of education up to the end of century
and also the Plan of Action. The Primary Education Policy was launched under the scheme of
Sarva Shiksha Abhiyan (SSA) in 2001, at district level throughout the country.

In all these years, the judiciary has shown some interests in addressing the grievances of the
common people and this led to the Public Interest Litigation Movement in the 1990s. In
Mohini Jain v. State of Karnataka107the court held that the state has an obligation to discharge
its duty of providing educational institutions so that the citizens can enjoy their right to
education. The court further held that the state can discharge its duty either by establishing
state educational institutions or by recognising private education institutions. Therefore, in
these circumstances, if the private institutions charge capitation fees in consideration of
admission, it amounts to patent denial of the right to education and is violative under Article
14 of the Constitution.

In Unnikrishnan v. State of A.P108 court reprimanded the government institutions for being
reluctant with the enforcement of article 45 and held that every child who is deprived of the
right to education can issue a writ of mandamus against the appropriate authority for the
enforcement of their deprived right.

Though the issue in both the cases were related to higher education, the end result of these
cases was that free and compulsory primary education was held to be a fundamental right
flowing from Article 21 of the Constitution. Another fascinating aspect of the Unnikrishnan
case is that the court traced the source of the right to education not only from Article 41, 45
and 46 of the DPSP but also from the International Covenant for Economic Social and
Cultural Rights..The both of these cases were decided prior to the enactment of 86th
Amendment Act, 2002 and hence, right to education was justified under Article 14 and 21 as
a part of the fundamental right guaranteed to all citizens.

The 93rd Amendment Bill 2001 which finally took the form of the 82nd Amendment Act,
2002 brought about a few inclusions and alterations to the existing provisions of the
Constitution. The most significant inclusion was the insertion of Article 21A in Part III of the
Constitution that made right to education a fundamental right and guaranteed free and
compulsory education to all children between the age of six to fourteen years of age.
Secondly, Article 45 was altered to accommodate the obligation of state to provide early
childhood care and education to all children until they complete six years of age. The third
amendment was the inclusion of a clause (k) after Article 51A(j) that imposes responsibility
on the parents and guardians to provide opportunity for the education of his child between the

107
AIR 1992 SC 1858
108
AIR 1993 SC 2178
age of six to fourteen years.

It is however important to note the criticisms that the Bill attracted after proposal. Firstly, the
organisations associated with the abolition of child labour argued that the age should be
extended to the age group of fifteen to eighteen years as well in order to eradicate the
problem of child labour. Also that the period between three to six years of age is also crucial
period of development and state should take the responsibility of providing education for this
age group not as an endeavour under Article 45 but as a part of the Fundamental Right under
Article 21A.

The Bill was also criticised for the lack of financial resources due to wrong estimations. The
critics were of the opinion that the expert Committee ser up by the NDA Government, the
Tapas Majumdar Committee Report reveals that even less than half the amount of resource
estimated by the committee has been actually allocated for the purpose taking into account
the existing quality of education.

The joint effort of the government and various organisations led to the enactment of the Right
to Free and Compulsory Education Act 2009 which came into force on 1st April 2010.

Article 46 : Promotion of educational and economic interests of Scheduled Castes,

Scheduled Tribes and other weaker sections

The State shall promote with special care the educational and economic interests of the
weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled
Tribes, and shall protect them from social injustice and all forms of exploitation.

Ram Singh and Others v Union of India109

The perception of a self-proclaimed socially backward class of citizens or even the perception
of the "advanced classes" as to the social status of the "less fortunate’s" cannot continue to be
a constitutionally permissible yardstick for determination of backwardness, both in the
context of Articles 15(4) and 16(4) of the Constitution. Neither can any longer backwardness
be a matter of determination on the basis of mathematical formulae evolved by taking into
account social, economic and educational indicators.

The recent amendments in2015 to SC/ST Atrocities Act 1989 to ensure more stringent
provisions for prevention of atrocities against schedule castes.

Dr Subhash Kashi Nath v. State of Mahrashtra110

In this case the Court held that, in view of acknowledged abuse of law of arrest in cases under
the Atrocities Act, arrest of a public servant can only be made after approval of the
appointing authority and of a non-public servant after approval by the S.S.P. which may be
granted in appropriate cases if considered necessary for reasons recorded. Such reasons must

109
Writ Petition No 274 OF 2014, Supreme Court of India judgement dated March 17, 2015
110
Criminal Appeal No.416 of 2018 arising out of Special Leave Petition (CRL.) No.5661 of 2017, Judgement
dated 20 MARCH 2018
be scrutinized by the Magistrate for permitting further detention. To avoid false implication
of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out
whether the allegations make out a case under the Atrocities Act and that the allegations are
not frivolous or motivated.

Article 47 : Duty of the State to raise the level of nutrition and the standard of living
and to improve public health

The State shall regard the raising of the level of nutrition and the standard of living of its
people and the improvement of public health as among its primary duties and, in particular,
the State shall endeavour to bring about prohibition of the consumption except for medicinal
purpose of intoxicating drinks and of drugs which are injurious to health.

Parmanand Katara v. Union of India111 the apex Court observed

"There can be no second opinion that preservation of human life is of paramount importance.
That is so on account of the fact that once life is lost, the status quo ante cannot be restored as
resurrection is beyond the capacity of man. Article 21 of the Constitution casts the obligation
on the State to preserve life. A doctor at the Government hospital positioned to meet this
State obligation is, therefore, duty bound to extend medical assistance for preserving life.
Every doctor whether at a Government hospital or otherwise has the professional obligation
to extend his services with due expertise for protecting life. No law or State action can
intervene to avoid/delay the discharge of the paramount obligation cast upon members of the
medical profession. The obligation being total, absolute and paramount, laws of procedure
whether in statutes or otherwise which would interfere with the discharge of this obligation
cannot be sustained and must, therefore, give way."

The Court concluded that right to health is a fundamental right under Article 21 of the
Constitution.

Consumer Education and Research Centre v. Union of India112

The Court considered the workers’ right to health and medical aid to be an integral part of
the right to life enshrined in Article 21 of the Indian Constitution.

LIQUOR BAN

State Of Tamil Nadu v. K. Balu & Anr113

The apex court in this case prohibited the sale of liquor within 500 metres of national and
state highways. Further all states and union territories shall forthwith cease and desist from
granting licences for the sale of liquor along national and state highways.

S. Sellasamy v. Dstt Collector114 in this case Court held that, maximisation of liquor shop in

111
AIR 1989 SC 2039
112
1995
113
CIvil Appeal Nos .12164-12166 OF 2016 on 15 December, 2016 (T.S. Thakur, D.Y. Chandrachud, L.
Nageswara Rao)
114
Judegemnt dated 11May 2017
the state will affect the health of the residents, so the state should restrain granting licences
for the operation of the liquor shop to uphold the directive under Article 47 of the
Constitution.

Article 48 : Organization of agriculture and animal husbandry

The State shall endeavour to organize agriculture and animal husbandry on modern and
scientific lines and shall, in particular, take steps for preserving and improving the breeds,
and prohibiting the slaughter, of cows and calves and other milch and draught cattle.

COW SLAUGHTER

A five-judge bench of the SC in Mohd Hanif Quareshi 115 partly upheld the validity of the
laws, as far as they banned slaughter of cows and calves. However, it said these laws were
“void in so far as they totally prohibit the slaughter of breeding bulls and working bullocks
without prescribing any test or requirement as to their age or usefulness“. It said a law
enacted to honour a Directive Principle provision could not violate fundamental rights.

In Mirzapur Moti Kureshi Kassab116 judgment on October 26, 2005, the seven-judge bench
by six to one majority said, “The ban is total with regard to the slaughter of one particular
class of cattle. The ban is not on the total activity of butchers, they are left free to slaughter
cattle other than those specified in the (Gujarat) Act.

“They can slaughter animals other than cow progeny and carry on their business activity ... it
is not necessary that the animal must be slaughtered to avail these things (hides, skins, etc).
The animal, whose slaughter has been prohibited, would die a natural death even otherwise
and in that case their hides, skins and other parts of body would be available for trade and
industrial activity”.

The Centre's adoption of the judiciary's approach, articulated in the 2005 judgment, is evident
from its recent affidavit in the SC in Akhil Bharat Goseva Sangh case117. The government
intends to tag every cow and its progeny with a Unique Identification Number (UIN) to
prevent smuggling.

The Environment Ministry had notified the stringent ’Prevention of Cruelty to Animals
(Regulation of Livestock Markets) Rules, 2017’ under the Prevention of Cruelty to Animals
Act. These rules, which effectively prohibit the sale of cows and buffaloes for slaughter at
animal markets, and are therefore perceived as imposing an indirect beef ban, have been the
subject of protests in Kerala and Tamil Nadu, and various litigations. The All India Jamiatul
Quresh Action Committee118 challenged the constitutional validity of the rules.

115
AIR 1958 SC731
116
State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat & Ors. 2005(8) SCC 534
117
Akhil Bharat Goseva Sangh Etc. Etc vs State Of Andhra Pradesh Appeal (civil) 3968 of
1994http//economictimes.indiatimes.com/articleshow/58454897.cms?utm_source=contentofinterest&utm_medi
um=text&utm_campaign=cppst(Last Visited 10 April 2018)
118
All India Jamiatul Quresh Action vs Union Of India on 11 July, 2017 WRIT PETITION (C)No.000422 OF
2017.
The Supreme Court upheld the interim direction of the Madras High Court staying the
Centre’s notification banning the sale and purchase of cattle from animal markets for
slaughter.

Article 48A : Protection and improvement of environment and safeguarding of forests

and wild life119

The State shall endeavour to protect and improve the environment and to safeguard the
forests and wild life of the country.

PROTECTION OF ENVIRONMENT

Constitutions of almost all nations guarantee the right to life. In recent years, national
courts of some countries have used the right-to-life provision as a legal tool to protect
environment by redefining the scope and meaning of the provision. Indian courts have made
the greatest contribution on this issue. Article 21 of the Indian Constitution provides that “no
person shall be deprived of his life or personnel liberty except according to procedures
established by law.” In Subhas Kumar v. State of Bihar120, Justice K.N. Singh observed in a
more vivid manner, “Right to live…..includes the right to enjoyment of pollution free water
and air for full enjoyment of life.”

The role of the Supreme Court as final interpreter is increasingly reflected in various
judgments. The most important achievement of modern law in India is the
constitutionalisation of environmental problems by the apex court of India.

The root of development can be placed to the opinion of Krishna Iyer J. in Municipal Council
Ratlam V. Vardhichand.121The case arise out of simple circumstances. The municipal council
of Ratlam failed to take steps to maintain roads in a particular locality in a safe and sanitary
condition. The sole excuse of the municipal board was that it had no money to maintain the
road. Krishna Iyer J. stated that those were an urgent need to focus on the ordinary man.
Quoting from a famous work access to Justice122Iyer J said “the recognition of this urgent
need reflects a fundamental change in the concept of “procedural justice”….. The new
attitude to procedural justice reflects what Prof. Adolf Homburger has called “a radical
change in the hierarchy of values served by civil procedure’’ the paramount concern is
increasingly with “social justice’’, i.e., with finding procedure which are conducive to the
pursuit and protection of the rights of ordinary people’. The court noted that the matter had
been pending for more than seven years. It specifically read into the situation a constitution
directive for the court and observed ‘Where directive principles have found statutory
expression in do’s and dont’s the court will not sit idly by and allow municipal government to
become a statutory mockery. The law will relentlessly be enforced and the plea of poor
finance will be poor alibi when people in misery cry for justice’.

119
Constitution (42nd Amendement) Act 1976, sec 10.
120
AIR 1991 SC 420
121
(1980) 4 SCC 162.
122
M. Cappelletti & B. Garth- Access to justice 68 (vol.1, A world survey Ed.)
In Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P123the issue was in
respect of the closure of certain limestone quarries in and around the town of Mussoorie. The
court itself noted that the case was the first of its kind in the country involving issues relating
to environment and ecological balance the questions arising for consideration were of grave
moment and significance. The court also noted that the situation involved the conflict
between development and conservation. It emphasized the need for reconciling the two in the
larger interest of the country. The court, however, avoided any discussion of the fundamental
right to a wholesome environment or its emergence from the guarantee of personal liberty.
There is only a small part of the single sentence which refers to the ‘need of safeguarding the
right of the people to live in healthy environment with minimal disturbance of ecological
balance and without hazard to them or their cattle, homes and agricultural land and undue
affection of air, water environment’.

The same strategy of avoidance of the need to rationalize the inclusion of the right to
wholesome environment among the fundamental rights was repeated in M.C. Mehta V. Union
of India.124In this case also the question was whether the Supreme Court can decree
compensation for violation of the right to wholesome environment in a petition under article
32 of the Constitution. While discussing at Length the power of the court to devise procedure
appropriate for the enforcement of a fundamental right, not even a sentence was devoted to a
declaration incorporating the right to wholesome environment within the guarantee of life
and personal liberty.

Sometime later, Saghir Ahmad J in M.C. Mehta V. Kamal Nath125, observed as follows

In order to protect “life”, in order to protect “environment” and in order to protect “air, water
and soil” from pollution, this Court, through its various judgments has give effect to the
rights available, to the citizens and persons alike, under Article 21 of the Constitution.

In Dehradun Quarying Case.126 The SC evolved a new right to environment without

specifically mentioning it. The case was filed under Art. 32 of the Constitution and Orders
were given with emphasis on the need to protect the environment. In Ganga
Pollution(Tanneries)Case 127while interpreting Art.21, Justice Singh justifying the closure of
polluting tanneries observed: “ we are conscious that closure of tanneries may bring
unemployment, loss of revenue, but life, health and ecology have greater importance to the
people”.

The Court evolved the principle of absolute liability of compensation in Shriram Gas Leak
Case128 through interpretation of the constitutional provisions relating to right to live and to
the remedy under Art. 32 for violation of fundamental rights. The premises on which the
decision is rendered is clear and unambiguous- the fundamental right to a clean and healthy

123
AIR 1985 SC 652.
124
AIR 1987 SC 1086.
125
AIR 1990 SC 630.
126
AIR 1988 SC 2187
127
AIR 1988 SC 1037
128
AIR 1987 SC 1086
environment. Right to live contains the right to claim compensation for the victims of
pollution hazards.

In Indian Council for Enviro- Legal Action v. Union of India129, the SC held that it has
power and duty to intervene and protect right to life of citizens, when an industry is
established without obtaining the requisite permission/ clearances and is continued to be run
in blatant disregard of law to the detriment of life and liberty of the citizens livig in the
vicinity.

The adoption of sustainable development as the basic principle of environmental law in India
received its maximum acceptability in M.C. Mehta V. Union of India.130 In this case, a three
judge bench of the Supreme Court was Considering the question of issuing directions to
substitute diesel vehicles on the roads of city of Delhi with vehicles driven by compressed
natural gas (CNG). The matter had been in the court for as long as 16 year. As early as 23
September 1986, the court had directed the Delhi Administration to file and affidavit
specifying the steps to be taken for controlling pollution caused by emission of smoke etc.
from vehicles plying in Delhi. A committee called the Bhure Lal Committee was established
under section 3 of the EPA, 1986 and its report was accepted by the court on 28 July 1998. A
time limit was fixed for switching over diesel vehicles to CNG vehicles.

In a recent case131 the Supreme court was held that public trust doctrine and principle of inter-
generational equity are the integral part of the principle of sustainable development.

The Indian Judiciary has shown unprecedented dynamism by expanding the scope of Art.21
by including in it right to clean and wholesome environment. This feat is remarkable in so far
as even some of the developed countries have yet to achieve such distinction.

Article 49 : Protection of monuments and places and objects of national importance

It shall be the obligation of the State to protect every monument or place or object of artistic
or historic interest, declared by or under law made by Parliament132 to be of national
importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the
case may be.

Legislative Intiative:- Ancient, Historical Monuments and Archaeological sites and Remains
(Declaration of National Importance ) Act 1951

The Taj Mahal Trapezium Case, M C Mehta filed PIL in SC to protect Taj Mahal from
surrounding industries in the year 1984 and judgement delivered in year 1996. In year 2007,
in another case M C Mehta filed PIL against Taj Heritage Corridor Project approved by
Government of Uttar Pradesh. Project was put on halt because of this PIL.In the case of
Subhas Datta vs. Union of India & Ors133 petitioner filed PIL in SC on the issue of protection

129
AIR 1996 SC 1446
130
Air 2002 SC 169 at 1698.
131
Intellectual forum, Tirupathi v. state of A.P. (2006) 3 SCC
132
Constitution (17th Amendment) Act 1956, sec 27.
133
SC, Writ Petition No 252 of 2004 decided on February 3, 2015
of historical objects preserved at different places in the country particularly in various
museums. He pleaded direction from SC for adequate security arrangements and for proper
investigation into the incidents of theft and damage to several historical objects and also for
making an inventory of available articles for future. Recently Ajay Jagga, lawyer practising
in Punjab & Haryana High Court filed PIL in HC for preservation of heritage property of
Chandigarh in terms of its original form and design material. HC issued notice to Chandigarh
Administration. Petitioner also emphasised on preparation of inventory of antiquities,
furniture artifacts etc collected by the Chandigarh Administration. Heritage Bengal filed PIL
seeking a directive to the centre to try and bring back the Kohinoor diamond from the UK134.

Article 50 : Separation of judiciary from executive

The State shall take steps to separate the judiciary from the executive in the public services of
the State.

INDEPENDENCE OF JUDICIARY

Emerging from Montesquieu’s Doctrine in the early 18th century, the concept of Judicial
Independence continues to hold a place of prominence in all modern democracies. The
framers of the Constitution of India135found that it was imperative to incorporate in the Indian
Constitution provisions for establishing and maintaining Judicial Independence. Dr. B.R.
Ambedkar, the Chairman of the Drafting Committee encapsulated the kind of Judiciary that
the Constitution of India would afford to the people of India in the following words:

“There can be no difference of opinion in the House that our judiciary must be both
independent of the executive and must also be competent in itself.”

Independence of the judiciary is the cornerstone of our Constitution. Maintenance of

Separation of Powers has been held to be a part of the inviolable “basic structure” of our
Constitution.136 The power of appointment, transfer, discipline and all the other conditions of
service of the subordinate judiciary are placed entirely in the hands of the judiciary; while the
executive is merely expected to make or issue formal orders. The power of appointment of
higher judicial officers lies with the President in consultation with the Chief Justice, of the
Court to which the appointment is made. The judiciary that Dr. B. R. Ambedkar envisioned
for India finds a place of eminence in the following provisions of the Indian Constitution:

• Separation of the Judiciary from the Executive: The Directive Principles of State
Policy in Art. 50 mandate that the State take steps to separate the judiciary from the executive
in the public services of the State and also contemplates a separate judicial service free from
executive control.

• Constitution of the Supreme Court and the High Courts: Articles 124, 126, 127, 214,
216, 217 of the Constitution provide for the establishment of the Supreme Court of India and
the High Courts in various States, their composition, and the procedure for removal of judges.
134
http://www.livelaw.in/legal-aspects-heritage-india/
135
The Constitution of India, 26 January 1950.
136
Keshavananda Bharati v. State of Karnataka AIR 1973 SC 1461.
Subordinate courts fall within the control of the High Court of the State under the Art. 235,
and the appointment of Judges to these courts are made by the Governor of the State in
consultation with the High Court.

• Security of Tenure: The Judges of the Supreme Court and High Courts have been
given the security of the tenure. Once appointed, they continue to remain in office till they
reach the age of retirement- 65 years in the case of judges of Supreme Court (Art. 124(2)) and
62 years in the case of judges of the High Courts (Art. 217(1)). A member of the higher
judiciary can be removed from service only through the process of impeachment envisaged
under Article 124 (4) of the Constitution on grounds of proven misbehavior or incapacity.

• Salaries and Allowances: The salaries and allowances of judges are a charge on the
Consolidated Fund of India in case of Supreme Court judges, and the Consolidated Fund of
the State in the case of High Court judges, thereby insulating the Judges from any executive
or legislative action to curtail their remuneration. Their emoluments cannot be altered to their
disadvantage (Art. 125(2)) except in the event of grave financial emergency.

• Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and
jurisdiction of the Supreme Court but cannot curtail them. In civil matters, Parliament may
change the pecuniary limit for appeals to the Supreme Court. Parliament may enhance the
appellate jurisdiction of the Supreme Court or confer supplementary powers on the Supreme
Court to enable it to work more effectively (Art. 138). Framing of Rules has also been
conferred upon the Supreme Court (Art. 145).

• No discussion on conduct of Judge in State Legislature/Parliament: Art. 211 provides

that there shall be no discussion in the legislature of the state with respect to the conduct of
any judge of the Supreme Court or of a High Court in the discharge of his duties. A similar
provision is made in Art. 121 for Parliament, with an exception with respect to a motion for
presenting an address to the President praying for the removal of the judge.

• Power to punish for contempt: Both the Supreme Court and the High Courts have the
power to punish any person for their contempt under Art. 129 and Art. 215, respectively.

Judicial Enquiry Act, 1968

The Constitution of India provides for a Judiciary which functions in its own sphere, free
from the overbearing influence of the Executive or the Legislative. In order to ensure
accountability in the Judiciary and to give effect to Art. 124 of the Constitution, the Judicial
Enquiry Act, 1968 was enacted, which lays down the procedure for investigation into
allegations of misbehaviour and incapacity of a Judge of the Supreme Court or the High
Courts.

Chandra Mohan v. State of U.P.137

The objective of the article was to secure the independence of judiciary from the executive.

137
AIR 1966 SC 1987
In the year 1991, doubts were expressed about soundness of the S.P. Gupta judgment in
Subhash Sharma vs. Union of India138, by a Bench presided over by Chief Justice Ranganath
Misra, with regard to the interpretation of the word ‘consultation’ occurring in Articles 217
and 224 (2) of the Constitution, and the matter was referred to a larger Bench saying that:

“The view that the four learned judges shared in SP Gupta’s case, in our opinion does not
recognise the special and pivotal position of the Chief Justice of India. The correctness of the
opinion of the majority in S.P. Gupta’s case, relating to the status and importance of the Chief
Justice of India and the view that the judge’s strength is not justiciable, should be
reconsidered by a larger Bench”.

Consequently, in Supreme Court Advocates-on-Record Association v. UOI139, otherwise

known as the 2nd Judges case, a Bench of nine judges was constituted and judgment was
pronounced on 6-10-1993, declaring that “the opinion given by the Chief Justice in the
consultation process has to be formed, taking into account the views of the two senior most
judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the
views of the senior most judge of the Supreme Court, whose opinion is likely to be
significant in adjudicating the suitability of the candidate, by reason of the fact that he has
come from the same High Court or otherwise. Art 124 (2) is an indicator that ascertainment
of the views of some other judges of the Supreme Court is requisite. The object underlying
124 (2) is achieved in this manner as the Chief Justice of India consults them for the
formation of his opinion. In matters relating to appointments in the High Courts, the Chief
Justice of India is expected to take into account the views of his colleagues in the Supreme
Court, which are likely to be conversant with the affairs of the concerned High Court, or
those of one or more senior judges of that High Court, and must be formed only after
ascertaining the views of at least the two senior most judges of the High Court”.

This procedure continued till the Government of India during the Presidentship of Sri K.R.
Narayanan had doubts and required clarification from the Supreme Court with regard to the
appointment procedure in Special Reference 1 of 1998140, otherwise known as the 3rd Judges
case, Special Reference No. 1 of 1998, came to be made under Article 143 of the
Constitution. The President referred 9 questions and a Bench of nine judges was constituted,
headed by Justice S.P. Bharucha. Normally, an advisory opinion under Article 143 does not
have to be binding, but the Attorney General made a statement before the Court that
government would abide by the opinion of the Court. The 9 judge Bench answered the
reference unanimously, and expressed the view that the Chief Justice of India must make a
recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or
judge of a High Court in consultation with the four senior-most judges of the Supreme Court.
In so far as an appointment to the High Court is concerned, the recommendation must be

138
AIR 1991 SC 631
139
(1993 (4) SCC 441)
140
1998 (7) SCC 739
made in consultation with the two senior-most -judges of the Supreme Court.141

Supreme Court Adv. On Record Association v. Union of India142

In this case 121st Amendment Bill of 2014 which provided for setting up a National Judicial
Appointments Commission was questioned. The Bill provided for the composition and the
functions of the proposed National Judicial Appointments Commission. The Bill provided for
broadening the method of appointment of Judges in the Supreme Court and High Courts,
enabling participation of judiciary, executive and eminent persons in the appointment of the
Judges in the Supreme Court and High Court. The impugned Amendment and the Act was
struck down as unconstitutional and the Pre-existing scheme for appointment of judges was
revived. Upholding the doctrine of separation of power and independence of judiciary as
basic structure of constitution.

Article 51 : Promotion of international peace and security

The State shall endeavour to –

(a) promote international peace and security;

(b) maintain just and honourable relations between nations;

(c) foster respect for international law and treaty obligations in the dealings of organised
people with one another; and

(d) encourage settlement of international disputes by arbitration.

Gramaphone Co. V. Birendra Bahadur Pandey143it was held that in case of a clash between
municipal law and international law the municipal law will prevail.

In Nilabati Behera vs. State of Orissa144 , a provision in the ICCPR was referred to support
the view taken that an enforceable right to compensation is not alien to the concept of
enforcement of a guaranteed right', as a public law remedy under Article 32, distinct from the
private law remedy in torts.

Vishaka v. State of Rajasthan145 the court laid guidelines on sexual harassment of women at
workplace by referring to Article 11 of Convention on the Elimination of All Forms of
Discrimination against Women an international charter to which India is a signatory. The Apex
Court held that, there is no reason why these international conventions and norms cannot,
therefore, be used for construing the fundamental rights expressly guaranteed in the
Constitution of India which embody the basic concept of gender equality in all spheres of
human activity.

141
Judicial Reform, Appointment and Transfer of Judges, Dr. Shyamlha Pappu, Senior Advocate of the
Supreme Court of India, member of the Law Commission of India, http://www.halsburys.in/judicial-reform.html
142
Judgement dated 16 october 2015
143
AIR 1984 SC 667
144
1993(2) SCC 746
145
AIR 1997 SC 3011
 IMPLEMENTATION OF DIRECTIVES

There is no need of any constitutional amendment and simple legislation by the Parliament is
adequate to implement the Directive Principles as applicable laws per Article 245 as they are
already enshrined in the constitution. The State has made few efforts till now to implement
the Directive Principles.

The Programme of Universalisation of Elementary Education and the five-year plans has
been accorded the highest priority in order to provide free education to all children up to the
age of 14 years. The 86th constitutional amendment of 2002 inserted a new article, Article
21-A, into the Constitution, that seeks to provide free and compulsory education to all
children aged 6 to 14 years. Welfare schemes for the weaker sections are being implemented
both by the Central and State governments. These include programmes such as boys' and
girls' hostels for scheduled castes' or scheduled tribes' students. The year 1990-1991 was
declared as the "Year of Social Justice" in the memory of B.R. Ambedkar.146 The government
provides free textbooks to students belonging to scheduled castes or scheduled tribes
pursuing medicine and engineering courses. During 2002-2003, a sum of Rs. 47.7 million
was released for this purpose.147 In order that scheduled castes and scheduled tribes are
protected from atrocities, the Government enacted the Prevention of Atrocities Act, which
provided severe punishments for such atrocities.148

Several Land Reform Acts were enacted to provide ownership rights to poor farmers. The
thrust of banking policy in India has been to improve banking facilities in the rural areas. The
Minimum Wages Act of 1948 empowers government to fix minimum wages for employees
engaged in various employments.149 The Consumer Protection Act of 1986 provides for the
better protection of consumers. The act is intended to provide simple, speedy and inexpensive
redressal to the consumers' grievances, award relief and compensation wherever appropriate
to the consumer.The Equal Remuneration Act of 1976, provides for equal pay for equal work
for both men and women.150 The Sampoorna Grameen Rozgar Yojana was launched in 2001
to attain the objective of gainful employment for the rural poor. The programme was
implemented through the Panchayati Raj institutions.151

Panchayati Raj now covers almost all states and Union territories.152 One-third of the total
number of seats have been reserved for women in Panchayats at every level; in the case of
Bihar, half the seats have been reserved for women. Legal aid at the expense of the State has
been made compulsory in all cases pertaining to criminal law, if the accused is too poor to

146
"Dr. Bhimrao Ambedkar". ambedkarfoundation.nic.in. Dr. Ambedkar Foundation. Archived from the
original on 5 April 2018
https://web.archive.org/web/20060505044856/http://ambedkarfoundation.nic.in/html/bharat.htm
147
Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-45
148
Prevention of Atrocities Act, 1989
149
Minimum Wages Act, 1948
150
Equal Remuneration Act, 1976
151
Sampoorna Grameen Rozgar Yojana, 2001
152
"Panchayati Raj in India". empowerpoor.org. Poorest Areas Civil Society. 73rd Amendment Act, 1992
engage a lawyer. Judiciary has been separated from the executive in all the states and Union
territories except Jammu and Kashmir and Nagaland.

India's Foreign Policy has also to some degree been influenced by the DPSPs. India, in the
past has condemned all acts of aggression and has also supported the United Nations' peace-
keeping activities. By 2004, the Indian Army had participated in UN peace-keeping
operations. India played a key role in the passing of a UN resolution in 2003, which
envisaged better co-operation between the Security Council and the troop-contributing
countries. India has also been in favour of nuclear disarmament.

RELATIONSHIP BETWEEN DIRECTIVE PRINCIPLES OF STATE POLICY AND

FUNDAMENTAL RIGHTS: JUDICIAL APPROACH

The Preamble to the Constitution of India records the solemn resolve of the Indian People to
establish a “socialist”153 society based on socio-economic justice. In attaining this ideal of
socio-economic justice, India is committed to the democratic way of life, and so the first
declaration made by the Constitution is that India is a Sovereign, Socialist, Secular,
Democratic, Republic. Complete political freedom is emphasized by the word “Sovereign”
and the adoption of the democratic way of life is emphasized by the words “Sovereign,
Socialist, Secular, Democratic, Republic”. After referring to India as a Sovereign, Socialist,
Secular, Democratic, Republic, the Constitution in its Preamble, has further declared its
resolve to secure certain basic objectives to all its citizens, and amongst these objectives pride
of place is given to social, economic and political justice.

In other words, the Constitution emphatically declares that the socialist democratic
republic154 of India shall be a welfare State committed to the pursuit of the ideal of socio-
economic justice. Socio-economic justice, however, has to be attained in a democratic way by
the rule of law.

The egalitarian principle of democracy requires not only one man one vote, but also the equal
and effective right of each and every man to live full human life, to develop his personality in
accordance with the tenets of freedom, equality and justice. This message has been translated
into several Articles, dealing with its different facets in Part III (Article 12 to 35) and Part IV
(Article 36 to 51) of the Constitution. Part III deals with the Fundamental Rights and Part IV
deals with the Directive Principles of State Policy. Both aim at the establishment of an
egalitarian social order and give sustenance to the rule of law. They aim at the betterment of
the individual as an integrated component of the society. They aim at the betterment of the
weaker sections of the society ensuring human rights to the ones living in the low visible
areas of human life. In fact, these two chapters read with the Preamble of the Constitution

153
The word socialist was not there in the Preamble at the time of adoption of Constitution of India on 26
November, 1949, but it was added by the 42nd Constitutional Amendment in 1976. As being a socialist State,
the Government is required to take steps to ensure that the minimum facilities of life are provided to every
person, and there are equalities of income and material resources as far as democratically possible. A socialist
State strives to achieve many ideals that are contained in Part IV of the Constitution.
154
The principal aim of a socialist State is to eliminate inequality in income and status, and standard of life. The
basic framework of socialism is to provide a decent standard of life to the working people and especially
provide security from cradle to grave. See D S Nakara v. Union of India AIR 1983 SC 130.
summarize the legitimate aspirations, lofty ideals and objectives of the people of the country.

The status of Directive Principles in the Constitution has been under discussion ever since the
Constitution was framed. The main question that was posed was whether the Fundamental
Rights or the Directive Principles should have precedence, in the event of their being a
conflict between the two. But the most significant question that comes to the mind is: Why
we have reached such a stage? Did the framers of our Constitution anticipate such a state of
affairs? Here, it seems that the whole of the trouble has started because of the special status
given to property as a Fundamental Right. The matter seems to have been succinctly put by
Mr. Justice Despande: 155

Perhaps the only ‘means’ contained in Part III which would conflict with the implementation
of the ‘end’ contained in Part IV of the Constitution would be an undue emphasis on
protection of property and business.

The following discussion would also show as to how the judiciary protected the right to
property against legislation which were enacted to implement the socio-economic justice as
enshrined in Article 38 and 39(b) and (c) of the Constitution.

First, in the Constitutional set up the Articles dealing with Fundamental Rights guaranteed in
Part III show the balance which must be held between the interest of the individual and the
community, whereas the Directive Principles in Part IV indicate the way in which the State
should frame its laws to ensure social and economic justice.

The directives being the instructions of the ultimate sovereign, the people of Indian, the
judiciary is obliged to make use of them in interpreting legislations. And secondly, since the
coming into force of the Constitution, there has been a controversy about the nature of these
rights. Judicial corridors were mostly wishful in paying glorious tributes to Fundamental
Rights and relegating the Directive Principles to a position of inferiority. This might be
because of lack of proper appreciation by the judiciary of their true significance and place
they occupy in the Constitution. In the light of these observations an attempt has been made
to evaluate the role of Judiciary with regard to the inter-relationship between Part III and Part
IV of Constitution.

Supremacy of Fundamental Rights over Directive Principles of State Policy

The State of Madras v. Champakam Dorairajan156 was the first case decided by the Supreme
Court in this regard. The facts of the case were as follows: The Government of Madras issued
an order known a Communal Government Order under which the seats in the Engineering
and Medical Colleges were apportioned on a communal and religious base.157The petitioner,
a Brahmin lady contended that the Madras Communal G.O. violated her Fundamental Rights

155
Minattur Joseph (ed.), V.S. Deshpande: Constitutional Law I in the Indian Legal System 53 (Indian Law
Institute, New Delhi, 1978).
156
AIR 1951 SC 226.
157
For every fourteen seats to be filled up by the Selection Committee, candidates were to be selected on the
following lines – Non-Brahmins (Hindus) – 6; Haijans – 2, Backward Hindus – 2, Anglo-Indians and India
Christian – 1 ; and Muslime -1.
under Articles 15 (1) which prohibits discrimination on grounds only of religion, race, caste,
sex and place of birth, and Article 29(2) which protects the citizens from denial of admission
into any educational institution, maintained by the State or receiving aid out of the State fund,
on the grounds only of race, religion, caste and language. As against this, the State of Madras
contended that such a discriminatory treatment was justified under Article 46 of Part IV
which imposes a duty on the State to promote the educational and economic interests of the
weaker sections of the people and, in particular of the Scheduled Caste and Scheduled Tribes.

The Supreme Court held:158

The Directive Principles of State Policy, which by Article 37 are expressly made
unenforceable by a Court, cannot override the provisions found in Part III, which
notwithstanding other provisions, are expressly made enforceable by appropriate writs, orders
or directions under Article 32.The Chapter on Fundamental Rights is sacrosanct and not
liable to be abridged by any Legislative or Executive act or order, except to the extent
provided in the appropriate Article in Part III. The Directive Principles of State Policy have to
conform to and run as subsidiary to the Chapter on Fundamental Rights.

Doctrine of Harmonious Construction of Fundamental Rights and Directive Principles

of State Policy

The judiciary, subsequent to the Champakam Dorairajan case modified its attitude towards
the Directive Principles although it always held it subordinate to the Fundamental Rights.
There was an increasing recognition of the fact that although directives were non-justiciable
in character, the Courts were to recognize their significance because of the simple reason that
they formed a vital Part of the Constitutional document. The directives were no longer to be
ignored when they came into conflict with Fundamental Rights. In M.H.Quareshi v. State of
Bihar,159 the question related to the validity of enactments of Bihar, Uttar Pradesh and
Madhya Pradesh legislatures banning the slaughter of certain animals including cows. These
enactments160 were challenged mainly on the ground that they violated the rights of the
petitioners to carry on butcher’s business under Articles 19 (1) (g) which provides freedom to
practice any profession, or to carry on any occupation, trade or business and also offended
Article 14 dealing with equality and Articles 26 of the Constitution.

The Supreme Court, however, rejected the contention of the State and held that the impugned
Acts contravened Articles 13(2) which, inter alia provided that the State shall not make any
law which takes away or abridges the right conferred by Chapter III of the Constitution which

158
Champakam Dorairajan v. State of Madras, AIR 1951 Mad. 120. Justifying the opinion of the Court,
Rajamanner, and C.J. observed that though the State was at liberty to achieve the objective enshrined in Article
46 but the action of the State should not contravene or infringe any provision of the Constitution including the
Fundamental Rights
159
AIR 1958 SC 731. For a detailed account of the cases dealing with slaughter of different animals, see A.E.
Quareshi v. State of Bihar, AIR 1961 SC 448; Mangru v. Budge Budge Municipality, AIR 1958 Cal 333; Dulla
v. The State of Uttar Pradesh, AIR 1958 All 198; Budhu v. Municipal Boardbu, AIR 1952 All 753; Usman Bhai
Hassan Bhasi v. State of Gujrat, AIR 1981 Guj 40.
160
Bihar Preservation and Improvement of Animals (Amendment) Act, 1956; U.P. Preservation of Cow
Slaughter (Amendment) Act, 1955; and M.P. Agriculture Cattle Preservation Act 1951 and Act No. 10 of 1956.
enshrines the Fundamental Rights. The Court reiterated its earlier stand in Champakam
Dorairajan case and observed:

The Directive Principles cannot override this restriction imposed on the legislative power of
the State. A harmonious interpretation has to be placed upon the Constitution and so
interpreted it means that the State should certainly implement the Directive Principles but it
must do so in such a way that its laws do not take away or abridges the Fundamental Rights,
for otherwise the protecting provisions of Chapter III will be ‘a mere rope of sand’.

The Court, however, introduced the doctrine of harmonious interpretation or construction as a

new technique of interpretation in this field. But it has defined the doctrine in such a way as
to mean that the State must implement the Directive Principles in such a way that its law do
not take away or abridge Fundamental Rights.

The Court in I.C.Golak Nath v. State of Punjab161 also made a reference to the Directive
Principles of State Policy and observed that the Fundamental Rights and the Directive
Principles formed an integrated scheme and a self contained code and were elastic enough to
respond to the changing needs of the society. It was further observed that these directives
could reasonably be enforced without their violating the Fundamental Rights. But the Court
was reluctant to give a position of parity to the Directive Principles by making it clear that the
Fundamental Rights occupied a transcendental position in the Constitutional scheme. Thus,
the Court again failed to appreciate properly the significance of Directive Principles.

In R.C.Cooper v.Union of India,162 popularly known as the Bank Nationalization case163, the
Supreme Court attached too much sanctity to Fundamental Rights. In Madhav Rao Scindhia
v. Union of India164 popularly known as Privy Purses case, the Supreme Court again
reiterated its opinion expressed in R.C. Cooper’s case. The Court observed that the Privy
Purses were property and that the rules could not be deprived of them without just
compensation. It further held that the rights to Privy Purses and to recognition were
justiciable rights.

Thus, the whole gamut of national policy of socialization to avoid the concentration of wealth
to the common detriment was frustrated as a result of conflicting judicial pronouncements. In
other words, from 1967-1971 the relationship between the Fundamental Rights and social
values of Part IV become turbulent. It is essential to highlight that the Court adopted a highly
legalistic and technical approach towards the Constitutional provisions and the domination of
the individual rights. The judicial attitude favoured the Fundamental Rights and failed to give
due importance to Directive Principles. The Supreme Court interpreted property rights in

161
AIR 1967 SC 1643.
162
AIR 1970 SC 564.
163
In this case the Court struck down the Banking Companies (Acquisition and Transfer of Undertaken) Act,
1961 as violative of Article 14, 19 and 31. It held that the Act which provided for nationalization of fourteen
named scheduled banks did not at all provide for just compensation as guaranteed under the Constitution.
Another ruling of the Supreme Court in the same case is that Article 19(1) Sub-Clause (f) and Article 31 (2) is
not mutually exclusive. It means that the reasonableness of a law passed under the latter provision can be judged
by the Courts.
164
AIR 1971 SC 53
such a way that it virtually defeated the provisions contained in Article 39(b) and (c). It also
overlooked the fact that implementation of progressive economics and social policies as
enshrined in Part IV of the Constitution is a necessary step in the direction of establishing a
welfare State.

Supremacy of Directive Principles of State Policy over Fundamental Rights

The Twenty-Fifth Amendment in the Constitution took place in the year 1971 and a new
Article 31C was incorporated. Article 31C provides that notwithstanding anything contained
in Article 13, no law giving effect to the policy of the State towards securing the principles
specified in clause (b) and (c) of Article 39 shall be deemed to be void on the ground that it is
inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article
19 or Article 31, and no law containing a declaration that it is for giving effect to such policy
shall be called in question in any Court on the ground that it does not give effect to such
policy, provided that where such law is made by the legislature of State, the provisions of this
Article shall not apply thereto unless such law, having been reserved for the consideration of
the President, has received his assent.

Later, the Twenty-Fourth, Twenty-Fifth, Twenty-Sixth and Twenty-Ninth165 Amendments

were challenged as unconstitutional in Kesavananda Bharti v. State of Kerala, 166 which was
decided by the full Bench of the Supreme Court in 1973. The case is commonly known as
Fundamental Rights case and has a direct bearing on the attitude of the judiciary towards the
directives. In Kesavananda Bharati case, the Supreme Court observed that the Fundamental
Rights and Directive Principles constitute the conscience of the Constitution. There is no
antithesis between the both, and one supplements the other. Mathew, J. went further in
attributing that the Directive Principles, in this case, a significant place in the Constitutional
scheme. His Lordship observed: In building up a just and social order it is sometimes
imperative that the Fundamental Rights should be subordinated to Directive Principles….
Economic goals have incontestable claim for priority over ideological ones on the ground that
excellence comes only after existence. It is only if men exist that there can be Fundamental
Rights.

The Court, in Narendera Prasad v. State of Gujarat observed:167

A particular Fundamental Right cannot exist in isolation in a water-tight compartment; one

Fundamental Right of a person may have to co-exist in harmony with exercise of another
Fundamental Right by others and also with reasonable and valid exercise of power by the
State in the light of the Directive Principles in the interest of social welfare as a whole. The

Court’s duty is to strike a balance between competing claims of different interests.

Despite the above judicial trend, the Parliament enacted Forty-Second Amendment which

165
This Amendment added the Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971) to the
Ninth Schedule of the Constitution.
166
AIR 1973 SC 1461.
167
AIR 1974 SC 2098.
enlarged the scope of Article 31C by applying it to all the Directive Principles contained in
Part IV of the Constitution. The Constitution (Forty-Second Amendment) Act, 1976 was
based mainly on the recommendations of the Swaran Singh Committee.168The Amendment
made a number of significant changes in Part IV of the Constitution. The most important of
them related to the assignment of a supreme position to the Directive Principles over the
Fundamental Rights. This was done by amending Article 31C, which in the altered form
provides that notwithstanding anything contained in Article 13, no law giving effect to the
policy of the State towards securing all or any of the principles laid down in Part IV shall be
deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of
the rights conferred by Article 14, Article 19 or Article 31.

The whole object of subordinating Fundamental Rights to Directive Principles was to secure
socio-economic justice which is the high ideal and aspiration contained in the Preamble. The
Amendment was identical to the one introduced by B.N.Rau in the Constituent Assembly
which gave primacy to laws implementing Directive Principles over all Fundamental Rights.
Rau’s Amendment, however, could not find its place in the body of Constitution because the
framers thought that on a fair reading of the entire Constitution it was abundantly clear that
the rights conferred in Part III must be consonant with the Directive Principles.

The Forty-Second Amendment also added three more Articles to Part IV of the Constitution.
These were: Article 39A, Article 43A and Article 48A. Article 39A obliged the State to
secure the operation of a legal system promoting justice on the basis of equal opportunities
and in particular to provide free legal aid to ensure that opportunities for securing justice are
not denied to any citizen by reason of economic and other disabilities. Articles 43A enjoined
the State to take steps to secure the participation of workers in management of undertakings,
establishments or other organizations, engaged in any industry. Article 48A obliged the State
to protect and improve the environment and safeguard the forest and the wild life of the
country. The inclusion of these directives was a welcome step.

Later, the Constitution (Forty-Fourth Amendment) Act, 1978 inserted Clause (2) Article 38 in
Part IV which provides that the State shall, in particular, strive to minimize the inequalities in
income, and endeavour to eliminate inequalities in status, facilities and opportunities, not
only amongst groups of people residing in different areas or engaged in different vocations. It
is essential to highlight here that the Constitution (Forty-Second Amendment), Act, 1976
which established the supremacy of Directive Principles over Fundamental Rights did not
tear off fundamental character of property rights. This was, however, done by enacting the
Constitution (Forty-fourth Amendment) Act, 1978.169 The Amendment took away the right to
property from the category of Fundamental Rights and made the same a right which can be
regulated by ordinary law. A new Article 300A in Part XII of the Constitution has been
inserted to provide that no person shall be deprived of his property saved by authority of law.

168
R.C.S. Sarkar, “Some Aspects of Constitutional Reforms: Judicial Review and Directive Principles” 10 JCPS
347 (1976).
169
The Amendment repealed Article 19(1) (f) which read “to acquire, hold and dispose of property; and Article
31 dealing with compulsory acquisition of property. It also substituted sub-clause (d) and (e) for Sub-Clause (d),
(e) and (f) in Article 19(5).
It may be stated that the above Amendment was necessitated because of the fact that the
judiciary always accorded a special position to the right to property which resulted in a
number of amendments to the Constitution. Therefore, the avowed and declared purpose of
the Amendment is to make the right to property to “cease to be a Fundamental Right” and to
take away the right to property from the category of Fundamental Right.

In Minerva Mills Ltd. v. Union of India,170 the Supreme Court invalidated the changes made
in Article 31C of the Constitution by Forty-Second Amendment projecting the primacy of
Directive Principles of State Policy over Fundamental Rights. The Court held (Bhagwati, J.
dissenting) that these changes damaged the basic structure of the Constitution171, and violated
its decision in Kesavananda Bharti case. The resulting effect of the Court decision is that the
Parliament can frame laws to give effect to the provisions contained in Article 39(b) and (c)
irrespective of the fact that they may violate the Fundamental Rights enshrined in Articles 14
and 19. In other words, Article 31C has not been struck down as such, but the 1976 attempt to
enlarge its scope has been nullified. To understand fully the socio-legal implications of this
leading judicial pronouncement on the socio-economic structure envisaged in Part IV of the
Constitution, it would be useful to quote extensively from the Court’s majority and minority
opinions.

Inter-Dependence of Fundamental Rights and Directive Principles of State Policy

The Supreme Court in some cases has shown a positive and marked tendency to take the
principle of the interdependence of human rights seriously and interpreted the entrenched
Constitutional guarantees of Fundamental Rights in the light of Directive Principles.172The
Court’s Path-breaking decision in Manaka Gandhi v. Union of India173 was the critical
moment in this transformation. Thenceforth, the Court resuscitated judicial activism, mainly
to render Constitutional liberties a living reality for the most vulnerable and powerless
sections of Indian Society. In this case the Court held that the Fundamental Rights are not
island but have to be read along with the other rights. Hence, reading Article 21 with 14 and
19, it was held that “procedure established by law” under Article 21 of the Constitution
means not just any procedure but a just, fair and reasonable procedure.

In Unni Krishnan v. State of Andhra Pradesh174J. Jeeven Reddy said that the Fundamental
Rights and Directive Principles are supplementary and complementary to each other, and not
exclusionary of each other and that the Fundamental Rights are but a means to achieve the
goals indicated in Directive Principles. Further, in Rajasthan v. Union of India & Another,
175
It has been held that Fundamental Rights must be construed in the light of the Directive
Principles. This judicial approach indeed led to the latest stage namely enforcement stage. In

170
AIR 1980 SC 1789; Waman Rao v. Union of India, AIR 1981 SC 271.
171
The theory of Basic structure was for the first time devised by the Supreme Court in Kasavandanda Bharti
case,It was again affirmed by the Court in Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 & reiterated
in Minerva Mills Ltd. And latter in J.K. National Panthers Party v.Union of India, AIR 2011 SC 3.
172
Ashok Kumar Thakur v.Union ofIndia (2008) 6 SCC 1.
173
(1978)1 SCC 248.
174
(1993) 4 SCC 111.
175
(2012) 6 SCC 1.
this period the DPSP, otherwise unenforceable were actually enforced through not directly
but indirectly. Thus some DPSPs are actually enforced as Fundamental Rights. The Supreme
Court in Ashok Kumar Thakur v. Union of India held:176

From the Constitutional history of India, it can be seen that from the point of view of
importance and significance, no distinction can be made between the two sets of rights,
namely Fundamental Rights which are made justiciable and the Directive Principles which
are made non-justiciable. The Directive Principles of State Policy are made non-justiciable
for the reason that the implementation of many of these rights would depend on the financial
capability of the State. Non-justiciable clause was provided for the reason that an infant State
shall not be made accountable immediately for not fulfilling these obligations. Merely
because the Directive Principles are non-justiciable by the judicial process does not mean that
they are of subordinate importance.

Now it is clear from the judicial decisions that there is no conflict between the Directive
Principles and Fundamental Rights. Both constitute an organic unit. A common thread runs
through Part III and Part IV of the Constitution of India.177 They are divided into two Parts
for the sake of convenience. Both embody the philosophy of our Constitution, the philosophy
of justice social, economic and political. They are the two wheels of the chariot as an aid to
make social and economic democracy a truism.178 Thus, the integrative approach towards
Fundamental Rights and Directive Principles, or that the both should be interpreted and read
together, has now come to hold the field. It has now become a judicial strategy to read
Fundamental Rights along with Directive Principles with a view to define the scope and
ambit of the former. Mostly, Directive Principles have been used to broaden and to give
depth to some Fundamental Rights and to imply some more rights therein for the people over
and above what are expressly stated in the Fundamental Rights.179

CONCLUSION

The Constitution of India, inter alia, envisages a just and an egalitarian social order promised
on justice – social, economic and political; liberty of thought, expression belief, faith and
worship; and equality of status and of opportunity. These values are more elaborately
perceived in Part III and Part IV of the Constitution.

176
Supra 172
177
In Re Ramlila Maidan Incident (2012) 5 SCC 1.
178
Julubhai Naubhaikhachar v. State of Gujarat, AIR 1995 SC 142; Charu Khurana & Others v. Union ofIndia
& Others, 2014 Indlaw SC 781.
179
M.P.Jain, Indian Constitutional Law 1370 (Wadhwa and Company, Nagpur, 5th edn., 2004)