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Citation:
Bertus De Villiers, Directive Principles of State
Policy and Fundamental Rights: The Indian Experience, 8
S. Afr. J. on Hum. Rts. 29 (1992)
Copyright Information
BERTUS DE VILLIERS*
INTRODUCTION
BA LLB (RAU) LLD (RAU), Head, Centre for Constitutional Analysis, Human Sciences Research
Council.
SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS
offers interesting lessons for South Africa. This article will endeavour to
examine the background and functioning of the Indian directive
principles and to focus on the relationship between these directives and
fundamental rights.
economically and6 socially, it must mean the ending of all special class privileges and
vested interests.'
It was therefore realized by the founding fathers that 'for those who suffer
from want and hunger, the so-called fundamental rights would be
meaningless and remain only paper rights'. 7 The result is that two
separate chapters, one on fundamental rights and the other on directive
principles, were included in the Constitution. The chapter on fundamen-
tal rights is characterized by its individualistic nature, its emphasis on
justiciability and the limits it places on state action. The directive
principles are a set of justiciably unenforceable goals which are
fundamental to the governance of the country and which place positive
obligations on the state.8
It would be incorrect to assume that the distinction between the
fundamental rights and the directive principles can be equated with the
justiciability of first and second generation rights. The fundamental rights
contain various rights that can be said to have a social, economic, cultural
and educational nature. 9 They represent more than the traditional
conception of civil and political rights. The directives provide the
constitutional framework within which these rights should be under-
stood. While the fundamental rights are essentially negative and are the
'mark of a world in which the government has no jurisdiction', the
directives call for positive action by the state which has a moral, political
and judicial consequence. 10
The Constituent Assembly, convened to draw up a constitution for
independent India, established an Advisory Committee for the purpose
of compiling a list of fundamental rights to be included in the
Constitution. The original report of the committee contained a chapter
on certain directive principles which were described as follows:
'The principles of policy set forth in this chapter are intended for guidance of the State.
While these principles shall not be cognizable by any court, they are nevertheless
fundamental in the governance of the country and their application in the making of laws
shall be the duty of the State'.11
6 Quoted by Judge Bhagwati in Minerva Mills Ltd v Union of India AIR 1980 SC 1843.
7 Sharma op cit note 5 at 179.
8 P Errabbi 'The constitutional scheme of harmony between fundamental rights and directive
principles of State Policy in India: Judicial Perceptions' in Sharma op cit note 5 at 176.
9 Some of the social, economic and cultural rights provided for in the constitution are rights referring
education (a29 and 30); protection against forced labour (923);
to property (a300A, 19(l)(f) and (5));
freedom of association, including the right to form unions (al9(l))(c) and (3); the right to conduct
business (al9)(1)(g).
10 State of Kerala v Thomas AIR 1976 SC 516.
11 ConstituentAssembly Debates (CAD) Vol 5 at 406.
SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS
The main rationale for the inclusion of the directive principles was
therefore that they provided a code of conduct according to which the
governance of the country should take place. 19 All levels of government
were expected to adhere to and act in accordance with the aims set out in
the directive principles. 20 Given the socio-economic needs of Indian
society, the directive principles provide the framework for a 'peaceful
political revolution'. 2t The non-justiciability of the directives does not
mean that they can be ignored by the courts. The way in which
fundamental rights are understood and interpreted depends on the vision
formulated in the directives. Consequently fundamental rights can be
interpreted in a manner which otherwise would not have been possible.
Originally it was felt that future elections and public opinion would be the
main 'implementing' force behind the directives. Although this has been
partially true, the courts have lately taken much more cognizance of the
22
directives.
The directives require of the state to involve itself actively in the
socio-economic sphere of society, including the economic system, control
of land, remuneration of workers, educational matters, health and
nutrition and social and cultural activities. Without a sound socio-
economic basis for the country, it was feared that the Constitution would
become 'useless and purposeless'. 23 The fundamental freedoms en-
trenched would be of no avail if proper housing, employment and welfare
24
were not at the disposal of the average man.
The sanctions attached to the directives are therefore moral, political
and judicial to the extent that they provide the framework in which
fundamental rights are to be interpreted and understood. 25 No court can
nullify legislation on the grounds that it is contrary to the directives, but
as an instrument of interpretation, especially in later years, the directives
can cause the validity of legislation to be upheld while otherwise it may
have been nullified. The courts have therefore through the years allowed
numerous legislative restrictions on fundamental rights for the purpose of
securing the aims of the directives.
The following conclusions can be drawn from the debates in the
Constituent Assembly on the directive principles of state policy:
* The directive principles as such shall not be justiciably enforceable
owing to the economic, administrative, technological and manpower
obligations they place on the state.
" The directive principles are fundamental to the governance of the
country, and state action should be aimed at fulfilling the directives. In
* the interpretation of fundamental rights and legislation, the directive
principles should be kept in mind to ensure that socio-economic
renewal occurs.
* The directive principles and the preamble constitute the soul, spirit and
22 The founding fathers argued that the fact that the Directives were included in the constitution gives
them a 'peculiar binding character' since any party which ignores them, will in essence be ignoring the
constitution. Owing to the democratic basis of the government 'it was presumed that they act in
concert to implement the principles of the directives'. Kagzi op cit note 19 at 938.
23 CAD Vol 2 at 316.
24 K S Hedge The Directive Principles of State Policy in the Constitution of India (1952) 20.
25 Although the fundamental rights and directive principles form an organic unit, they were divided into
two pans 'for the sake of convenience, because, it was thought that the Directive Principles by their
very nature cannot be made justiciable through courts' Hedge op cit note 24 at 43.
SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS
courts have played a much more active role in ensuring that the directives
are implemented. The directive principles can be divided into five
categories, 33 namely:
1 Socialist principles, which emphasize certain approaches in addressing
socio-economic problems. The principles declare that
- the state should direct its policies towards ensuring that its citizens,
men and woman equally, have an adequate means of livelihood;
- the ownership and control of the material resources of the
community should be so distributed as best to serve the common
good;
- the operation of the economic system should not result in the
concentration of wealth and means of production to the detriment
of the common good;
- there will be equal pay for equal work for both men and woman;
- the health and strength of workers, men and woman, and the tender
age of children should not be abused, and that citizens should not
be forced by economic necessity to enter occupations unsuited to
their age and strength;
- childhood and youth should be protected against exploitation and
34
against moral and material abandonment;
- the state should, 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 unemploy-
35
ment, old age, sickness, disablement, etc;
- the state should make provision for securing just and humane
36
conditions of work and for medical relief;
- the state should endeavour to secure for all workers, agricultural or
industrial, work and a living wage, conditions of work ensuring a
decent standard of living and full employment and leisure and social
37
and cultural opportunities.
2 Gandhian principles which are based on the thoughts of Mr Gandhi.
They are that the state should:
- take steps to organize village Panchayats (local governments) and
endow them with such powers and authority as may be necessary to
38
enable them to function as units of self-government;
- promote with special care the educational and economic interests of
the weaker sections of the people, particularly of the scheduled
castes and the scheduled tribes, and should protect them from social
39
injustice and all forms of exploitation;
- endeavour to promote cottage industries on an individual or
co-operative basis in the rural areas; n°
- endeavour to preserve the breeds of milch and draught cattle,
41
including cows and calves, and prohibit their slaughter;
- endeavour to bring about the prohibition of the consumption,
except for medicinal purpose, of intoxicating drugs and of drugs
42
that are injurious to health;
- take steps to separate the judiciary from the executive in the public
43
service.
3 General Welfare principles, which emphasize the welfare of all
citizens. The state is required to endeavour to
- provide free and compulsory education for all children till the age
44
of 14 years;
- organize agricultural and animal husbandry on modern and
45
scientific lines;
- raise of the level of nutrition and the standard of living of its citizens
46
and the improvement of public health as one of its primary duties;
- secure for its citizens a uniform civil code throughout the territory
47
of India;
- ensure equal access to the courts and provide legal assistance to
those in need. 4 8
4 International principles, which require the state to
- promote international peace and security,
- maintain just and honourable relations between nations,
- foster respect for international law and treaty obligations, and49
- encourage settlement of international disputes by arbitration.
5 Nature conservation principles, which require the state to
- protect and improve the environment, and
50
- to safeguard the forests and wild life.
39 a46.
40 a43.
41 a48.
42 a47.
43 a50.
44 a50.
45 a48.
46 a47.
47 a44.
48 42nd Amendment, 1970, a39A.
49 a51.
50 48A.
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS
The nature and scope of the directive principles of state policy can be
summarized as follows:
(i) The directive principles represent the spirit and soul of the Indian
Constitution. They acknowledge the urgent need for nationwide
socio-economic upliftment which will have to continue for genera-
tions to come.
(ii) The directive principles serve as a socio-economic chart for all
governmental institutions including semistate bodies, according to
which steps have to be taken to implement and realize their
provisions. It can be equated with the constitutional embodiment of
the needs and aspirations of the Indian people with the obligation on
the state to act accordingly.
(iii) The directive principles are not enforced in the same way as the
individual rights provided for in the chapter on fundamental rights.
(i) Fundamental rights prevent the state from acting, while directive
principles provide a framework within which the state is required to
act.
(ii) Fundamental rights can be directly enforced by the courts by means
of sanctions, while the directive principles are explicitly described as
'non-justiciable' by the Constitution. Their enforceability depends
on political and moral pressure, and they can be of direct legal
consequence only in terms of interpretation.
(iii) Fundamental rights are, due to their justiciable character, more
exact and specific than the directive principles, which are fairly
vague, general and programmatic.
The obvious question arising from these two chapters is which one takes
preference if an irreconcilable conflict occurs? The Constitution at face
value, makes it clear that in the event of such conflict the fundamental
rights are enforceable while the directives are not. 65 Any law which
therefore encroaches on fundamental rights is null and void while this is
66
not the case when laws are in conflict with the directive principles. Sir
B N Rau, one of the constitutional advisors to the Constituent Assembly,
proposed that if individual rights were in conflict with those relating to
state policy aimed at the welfare of all the people, the 'general welfare
should prevail'. 67 This proposal was not accepted by the Constituent
Assembly and as a consequence those who argued that the directive
68
principles should be non-justiciable 'won the day'.
Although the state is therefore under an obligation to implement the
directives, it still has to adhere to the other constitutional provisions,
including those on fundamental rights. 69 No legislation, even that aimed 70
at fulfilling the directive principles, may infringe on fundamental rights.
Should the directives and fundamental rights not be in direct conflict, the
courts have to construe them as harmoniously as possible.
Through the years the courts have adopted various attitudes to the
relationship between fundamental rights and directive principles. Ini-
tially fundamental rights were 'sacrosanct' and sovereign to directive
principles. Later the courts stressed the interpretative harmony and
nexus, and for the past decade they have tended to uphold legislation
which, even though it may limit fundamental rights, furthers the ideals of
the directive principles.
The various attitudes of the courts in their efforts to interpret the
Constitution accurately will now be discussed.
65 a32.
66 a37.
67 CAD Vol 3 at 226.
68 Seervai op cit note 32 at 1584.
69 State of Biharv Ramesh war 1952 SC 292.
70 H M Quareshi v State of Bihar 1958 SC 731.
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS
infringement on any Fundamental Right, there can be no objection to the State acting in
accordance with the directive principles.. 7
The essence of the court's argument is that although the state is required
by the Constitution to initiate programmes to comply with the directive
principles, such action is subject to the fundamental rights. The state
should thus be aware that 'while professing to implement a directive, it
cannot pass a law which is inconsistent with any provision of part 3
76
(Fundamental Rights) which is enforceable by judicial process'.
However, the mere fact that a specific mandate contained in the
Constitution is not enforceable, does not mean that such a mandate is not
of great importance. Hedge 77 emphasizes that the Constitution contains
'many important mandates which may not be enforceable by courts of
law', but that does not mean that they are of lesser value than those that
can be enforced.
78
This line of argument was supported in M H Quareshiv State of Bihar,
where there was a direct conflict between the fundamental right to carry
on a business 79 and the directive principle which requires the state to take
steps to prohibit the slaughter of certain animals. 80 The court argued that
no law may abridge fundamental rights, including those laws accepted in
the furtherance of the directive principles. The court concluded:
'A harmonious interpretation must be placed upon the Constitution, and so interpreted
it means that the State should implement the directive principles but it must do it in such
a way as not to take away or abridge fundamental rights.'s
75 Ibid at 531.
76 Kagzi op cit note 19 at 943.
77 Op cit note 24 at 73.
78 Supra note 70.
79 a 19(1)(g) '. . . to practice any profession, or to carry on any occupation, trade or business'.
80 a48 'The State shall ... take steps for preserving and improving the breeds, and prohibiting the
slaughter of cows and calves and other milch and draught cattle.'
81 Ibid at 638.
82 1959 SCR 995.
83 The issue in dispute was clause 20 of the Bill which determined that 'no fee shall be payable by any
pupil for any tuition in the primary classes in any government or private school'.
84 a45. 'The State shall endeavour to provide, within a period of ten years from the commencement of
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS
this Constitution, for free and compulsory education for all children until they complete the age of
fourteen years.'
85 Seervai op cit note 32 at 1622.
86 Ibid.
SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS
One of the first cases in which the Supreme Court adopted a more
89
conciliatory approach was that of Sajjan Singh v State of Rajasthan. In
this case the court heard that if the chapter on fundamental rights were
not amended, there was a great danger that the much needel socio-
economic reforms would not be able to take place. The court stressed the
fact that the fundamental rights and directive principles formed the basis
of the Constitution and that they should therefore be interpreted
harmoniously. 90 Although the court maintained that the fundamental
rights were not amendable, a new attitude was initiated, namely that
these rights should be interpreted in the light of the ideals set by the
directive principles.
An important case in the development of the relationship between
fundamental rights and directive principles, was Chandra Bhawan
Boarding andLodging Bangalore v The State of Mysore.91 In this case the
petitioner challenged the provisions of the Minimum Wage Act, 1948 on
the basis that it violated Art 14 of the Constitution. He alleged that the act
conferred 'unguided and uncontrolled' discretion to the government to
fix minimum wages, which interfered with the freedom of trade. The state
replied that in terms of the directive principles it was its duty to provide
a basis for minimum wages.
The court ruled that there was no conflict between the fundamental
rights and directive principles and that they were 'complementary and
supplementary'. Directive principles enable the state to place various
duties on its citizens, and if such duties are not fulfilled the 'hopes and
aspirations aroused by the Constitution will be belied if the minimum of
the lowest of our citizens are not met'. The court concluded as follows:
'Freedom to trade does not mean freedom to exploit. The provisions of the Constitution
are not erected as barriers to progress. They provide a plan for orderly progress towards
the social order contemplated by the preamble to the Constitution . . . While rights
conferred under Part 392 are fundamental, the directives given under Part 493 are
fundamental in the governance of the country. We see no conflict on the whole between
the provisions contained in Part 3 and Part 4. They are complementary and
supplementary to each other.'
The second phase was thus characterized by the Supreme Court's view
that instead of there being a hierarchy, the fundamental rights and
directive principles were complementary. The reasoning in this phase was
as follows:
" The duty of the court is to establish and maintain a balance between the
interests of the individual and the obligation of the state to undertake
socio-economic programmes for the benefit of all the people.
" Rather than asking which of the sets of principles carries more weight,
the directive principles should be used as an instrument to interpret and
better understand the scope of fundamental rights.
" The courts were inclined to be more pragmatic in comparison with the
previous dogmatic stance, which left very little room for the state to
fulfil its constitutional duties.
The court declared that parliament had not the power to 'destroy' the
guarantees of the fundamental rights to achieve the goals set by the
directive principles. 10 2 It concluded that:
'The goals set out in Part 4 (directive principles), have therefore, to be achieved without
the abrogation of the means provided for by Part 3 (fundamental rights). It is in this sense
that Parts 3 and 4 together constitute the core of our Constitution and combine to form
its conscience. Anything that destroys the balance between the two parts will ipso facto
03
1
destroy an essential element of the basic structure of our Constitution.'
The court concluded that parliament had acted outside its authority by
giving precedence to the directive principles over the fundamental rights
of Arts 14 and 19.
This decision was questioned and overruled by the Supreme Court in
Sanjiev Coke Mfg Co v M/s Bharat Coking Coal Ltd.10 4 The court
suggested that the part of the Minerva case which dealt with Art 31c was
an obiter dictum and therefore not binding. The court therefore ruled that
the Coking Coal Mines (Nationalization) Act, 1972 was protected by Art
31c of the Constitution and had preference over the fundamental rights on
the basis that it gave effect to Art 39(6)105 of the directive principles.
The decision of the court in Sanijiev Coke supports the argument that
'the fundamentalness of the directives is based on natural law and they
are equally fundamental along with fundamental rights'.t°6
The uncertainty of the two conflicting decisions by the Supreme Court
was settled in State of Tamil Nadu v L Abu Kavier Bai.1 07 In this case the
court held that although the directive principles were not enforceable, it
was the duty of the court to make a real attempt to harmonize them with
the fundamental rights. The court referred to the decision of the
Constituent Assembly to provide for two separate chapters:
'We must appreciate that the reason why the founding fathers of our Constitution did not
advisedly make these principles enforceable was perhaps due to the vital consideration of
giving the Government sufficient latitude to implement these principles from time to time
according to capacity, situations and circumstances that may arise.'108
The court emphasized that if the decisions of various courts over the years
were compared, it was clear that the court should 'make a real attempt at
harmonizing and reconciling the directive principles and the fundamental
rights and any collision between the two should be avoided as far as
* This article will be continued under the heading 'The Socio-economic consequences of Directive
Principles of State Policy: limitations on fundamental rights' in the next issue of this journal - Eds.