dpsp

PART 4-------ARTICLES-----36 TO 51 




The common origin and Sapru Report
The fundamental rights and the directive principles are of common origin. The Nehru Report of 1928 had contained a Swaraj Constitution of India which incorporated some fundamental rights. These also included some rights as right to education.
It was almost agreeable that at that point of time, it was not the capability of the Indian State to guarantee right to employment and education to all. This means that it was not the lack of will but was the lack of resources that the state could not guarantee of kinds of rights. The Sapru Report of 1945 divided the fundamental rights into two parts as follows:
1. Justifiable Rights
2. Non-justifiable rights
The Justifiable rights were those enforceable by a court of law. These enforceable rights were incorporated in the Part III of the Constitution. The non-justifiable rights were incorporated as a directive to the state to take all measures to provide those rights to individuals without any guarantee. They were incorporated in the part IV of the constitution and were called Directive Principles of State Policy.

What are directive principles?

The directive principles, as the name suggests, are some principles which give a direction in making certain decisions.These are the guidelines by the Constitution of India to the state.
State is defined by Article 12.
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. The basic idea is that the "state" should keep these principles while framing laws, policies, ordinances etc.

Sources of DPSP
 The Framers of the constitution were influenced by the Irish Constitution of 1937 to add a chapter on DPSP. The Constitution of Ireland which is called Bunreacht na hÉireann in Irish came into force in 1937 and it replaced the Free State Constitution of 1922. Article 45 of the Constitution of Ireland details the "Directive Principles of State Policy".
 However, DPSP were not original idea of the framers of the Irish Constitution even. They borrowed it from the Spanish Constitution.
 The Instruments of Instructions under the Government of India Act 1935 was also an immediate source of the Directive Principles of State Policy. However the basic difference was that the Instruments of Instructions directs the executive while the DPSP direct to the “State” as defined in Article 12 of the Constitution of India.

Salient Features
 The State, who is directed is defined in Article 12 (Article 36)
 Directive principles are not enforceable by any court. However, Constitution mandates that it shall be the duty of the state to apply these principles in the governance. This is because the implementation of these principles would require resources which the state may not have. (Article 37)
 State has to secure a social order with economic, political and social justice for the promotion and welfare of the people. The state shall strive to minimize the inequalities of income, status, facilities, opportunities etc.(Article 38)
 Article 39 says that state shall secure:
o That all citizens (men & women) have equal right to means of livelihood.
o That the ownership and control of the material resources are so distributed that they are best to
sub serve the common good.
o That the operations of the economic system don’t result in the concentration of wealth for some.
o There is equal pay for equal work for men and women.
o The health and strength of the workers (men & women) and children are not abused.
o Children are given opportunities to develop in healthy manner and they are protected against
the exploitation.
 Equal Justice and Free legal aid (Article 39A) was inserted by Constitution 42nd amendment act 1976 (w.e.f. 3.1.1977). This article says that 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.
 Article 40 says that the state shall take steps to organize Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self government.
 Article 41 says that state shall (within its limits of economic capacity & development) will make effective provisions for securing right to work, education etc. and to Public Assistance in case of unemployment, old age, sickness, disablement or any other case of undeserved want.
 Article 42 says that state shall make provisions for securing just and humane conditions for work and for maternity relief.
 Article 43 says that the state will Endeavour to secure by suitable legislations or economic organizations or Another 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 & social cultural opportunities and in particular promote cottage industries on an individual or cooperative basis in rural areas.
 Article 43 A was inserted by 42nd amendment act 1976. This article says that 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 organizations engaged in any industry.
 Article 44 says that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
 Article 45 says that State shall Endeavour 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. This article remains substituted by the 86th amendment act 2002 and it says:Provision for early childhood care and education to children below the age of six years.—The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
Article 46 says 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.
 Article 47 says that 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 purposes of intoxicating drinks and of drugs which are injurious to health.
 Article 48 says that 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.
 Article 48A was added in the constitution by 42nd amendment act 1976. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
 Article 49 says that - 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 Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.
 Article 50 says that State shall take steps to separate the judiciary from the executive in the public services of the State.
Article 43A inspired the government of India to launch various schemes on Workers participation in
PSU management. Such programmes were launched for the first time in 1975. The participation
of workers in Management Bill, 1990 was inspired by article 43A.
Most of the social development programmes such as NRHM, Mid Day Meal scheme, ICDS etc. which
target the women, children,weaker sections of the society are inspired by Article 47.
Article 41 inspires the government of India to launch National Social Assistance programme and State Governments to launch their various old age pension plans & schemes for the sick and disabled persons.
 Article 51 says that The State shall endeavour to promote international peace and security, maintain just and honorable relations between nations, foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and encourage settlement of international disputes by arbitration.

Summary of Articles 36-51

We see that Directive principles contain some principles which are either social, economic or inspired by Gandhian Philosophy. The important thrust of each article is summarized in the following table:
Article Key Emphasis
Article 36 Defines state as per article 12 of part III
Article 37 Non Justifiable nature of the DPSP
Article 38(1) Social, Economic and Political Justice
Article 38(2) Elimination of Inequalities
Article 39 Adequate means of livelihood, equal pay for equal work, resource distribution, safety of citizens and healthy development of Children
Article 39A Equal Justice and free legal aid
Article 40 Organization of Village Panchayats (Gandhian Principle)
Article 41 Public Assistance Programmes, old age, unemployment programmes etc.
Article 42 Just & humane conditions of work
Article 43 Living wages and conditions to work
Article 43 A Participation of workers in management of industries
Article 44 Uniform Civil Code
Article 45 Provision for Free and Compulsory education for Children
Article 46 Promotion of education and economic interests in SCs and STs
Article 47 Nutrition and standard of Living (Gandhian Principle)
Article 48 Prevention of cow slaughter, organization of agriculture and animal husbandry (Gandhian Principle)
Article 48A Protection of environment
Article 49 Protection of Monuments, places and objects of national importance
Article 50 Separation of Judiciary from the executive
Article 51 Promotion of international peace and security.

Significance of DPSP
The directive principles place an ideal before the legislator of India which shows that light while they frame the policies & laws. They are basically a code of conduct for the legislature and administrators of the country. They show the path to the leaders of the country which takes the country to achieve the ideal of the constitution embodied in the Preamble “Justice, Social, Economic, Political; liberty, equality and fraternity”.

The Distinction between Fundamental Rights and Directive Principles
 The basic objective of the fundamental rights is to protect an individual from encroachment of his basic
rights. The basic objective of the directive principles is to create a “welfare” state.
 The fundamental rights limit the state action towards an individual while the directive principles are positive
instruction to the state to establish a just socioeconomic and political order.
 The Fundamental rights are justifiable i.e. a person can approach the court on their infringement, the directive principles are non-justifiable and one cannot approach to the court if they are not enforced by the state.
 The Fundamental rights are directly guaranteed by the Constitution, but the directive principles are only some guidelines and they require legislation for their implementation. For example Panchayati Rat Act was passed to implement the directive of article 40.

Implementation of Directive Principles of State Policy
The Government of India and Various state governments have done many efforts to implement the Directive Principles of State policy and create a welfare state. It may be stated that the state has not been able to make the country a ‘welfare state’ in the last 6 decades yet, the pace of the development, when we compare it with the pace of development in the British Era, is satisfactory.
Following are some of the programmes & legislations which have inspired the state to
achieve the objective enshrined in the DPSP:
 The efforts of translating the directive principles into reality are first of all evident in the five year plans. The
first five year plan was initiated soon after commencement of the constitution and the basic objective of the
public policy has been promotion of rapid & balanced economic development.
 The objective of universalization of the elementary education was in the development programmes. And after the 86th amendment act which inserted Article 21A in the constitution, the state seeks to provide free and compulsory education to all children between 6-14 years.
 A lot of land reform programmes have been launched to lift the social and economic status of the poor and
landless farmers of the country. The Panchayats have been established in the remotest areas of the country
and there is a separate ministry of Panchayati Raj which seeks to bring back the lost glory of the Panchayats.
 The state owned factories, industries and corporations are expanding and more and more people have been given employment. Various legislations such as The Employees State Insurance Act, Workmen Compensation Act, The Minimum Wages Act etc. some of the efforts which try to establish a just order taking guidelines from the DPSP. Government enacted Equal Remuneration Act in 1976 which provides equal pay for equal work for both men and women.
 The government has launched National Social Assistance Programme for the poor and old age people, which involves Indira Gandhi Old Age Pension Scheme, Indira Gandhi National Widow Pension Scheme (IGNWPS), Indira Gandhi National Disability Pension Scheme (IGNDPS), National Family Benefit Scheme (NFBS) and Annapurna.
 The Mahatma Gandhi National Rural Employment Guarantee (MGNREGA) was introduced in 2005 as NREGA to enforce the directive principle embodied in the article 39, 41.
 To enhance the nutritional level of the children and adolescent girls a lot of programmes have been launched such as Mid-day meal scheme, ICDS, SABLA etc.

Amendment of the Directive Principles of State Policy
The Directive Principles of State Policy are subject to amendments via Article 368 only.

Conflict with the Fundamental Rights
The important question is where there is a conflict between the fundamental rights and directive principles, which should prevail?
 The Fundamental Rights are the rights of the individual citizens guaranteed by the Constitution. The directive principles lay down various tenets of a welfare state. The conflict arises when the State needs to implement a directive principle and it infringes/ abridges the fundamental rights of the citizens.
 The chapters on the fundamental rights & DPSP were added in order of part III and part IV of the constitution. The Fundamental rights are justifiable and guaranteed by the constitution. The Directive principles were directives to the state and government machinery. But they are not enforceable, by the law.

Champakam Dorairajan Case
This conflict between Fundamental Rights and DPSP came to the Supreme Court for the first time in Champakam Dorairajan Case (1952). Smt Champakam Dorairajan was a woman from the State of Madras. In 1951, she was not admitted to a medical college because of a Communal G.O. (Government Order) which had provided caste based reservation in government jobs and college seats. This GO was passed in 1927 in the Madras Presidency.
 Champakam Dorairajan Case was a first major verdict of the Supreme Court on the issue of Reservation.
 Champakam Dorairajan Case led to the First amendment of Indian Constitution.
 This was the case, which when was in Supreme Court; the Lok Sabha was not formed. Lok Sabha was formed in 1952.
The conflict was between article 16(2) from the chapter of Fundamental Rights and Article 46 of the
No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
And article 46 says: 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.
The Supreme Court held that Article 37 expressly says that the directive principles are not enforceable by court. Supreme Court mandated that the chapter on Fundamental rights in the constitution is sacrosanct and the directive principles have to conform to and run subsidiary to the chapter on Fundamental Rights.
This means that Fundamental Rights were given superiority over the Directive principles. This continued for a decade and half and some other cases such as Qureshi v/s State of Bihar, Sajjan Singh V/s State of Rajasthan cases court confirmed this stand.

Golak Nath Case
In 1967 came a very important case. This was Golak Nath vs. The State of Punjab (1967). In this case, for the first time a bench of 11 judges of the Supreme Court was formed. The court in this case laid down that Fundamental Rights cannot be abridged/ diluted to implement the directive principles. This decision forced the government to amend the constitution. By the 24th Amendment Act 1971, the Parliament amended Art. 13 and 368. This amendment made it clear that Parliament has the power to amend any part of the Constitution including Fundamental Rights and the word ‘law’ as used in Article 13 does not include a Constitutional Amendment Act.


Kesavanand Bharti Case
In the Kesavananda Bharti Case the Supreme Court ruled that Parliament could amend any and every part of the Constitution including Fundamental Rights but it could not destroy the basic structure of the Constitution.To nullify the kesavanand Bharti Case, the 42nd Amendment further amended article 31 (C) and now it said that “No law giving effect to the policy on the ground” that is inconsistent with or takes away or abridges any of the rights conferred by article 14, 19 or 31.

Minerva Mills Case
The parliament by 42nd amendment further widened the scope of the Fundamental Rights. However in the Minerva Mills v/s Union of India (1980) case, the Supreme Court struck down these provisions. On the ground that it changed the basic structure of the Constitution. The Supreme Court held that the Constitution exists on the balance of part III and Part IV. Giving absolute primacy to one over other will disturb the harmony of the Constitution. This took the Article 31(C) to its prior condition that “ a law would be protected by article 31C only if it has been made to implement the directive in article 39(b) and (c) and not any of the articles included in Part IV.


Summary of Conflict between Fundamental Rights and DPSP
A member in the constituent assembly moved an amendment which sought to make the directive principles justifiable. However, this move was turned down on the fact that, there was no use in being carried out away by the sentiments. A court cannot enforce the directive principles and it is the strength of the public opinion which makes these provisions enforceable, because there are elections every five year and the public, if the DPSPs are not implemented can show the door to the government. It was a view of Jawahar Lal Nehru that where there was a conflict between the Fundamental Rights and Directive Principles the DPSP should prevail. However, where we look into the Judicial ‘nature’ of the above two, we see that Supreme
Court should upheld the Fundamental Rights because they are guaranteed by the Constitution and justifiable. But the solution provided by the Supreme Court may be “Judicial” but not “practical” in all cases. It is the parliament which can reach beyond the “Judicial” solution. When a social conflict arises out of the conflicts of the Fundamental Rights and DPSP, the state should emerge as a “Torch bearer” because ultimately it is the superiority of the “Social Interest” over the “individual interest’. However, it is the duty of the Court to resolve a conflict with an eye on the constitution and another on the social harmony. After the Minerva Mills Case, The supreme court to the view that there is no conflict between the Fundamental Rights
and the DPSP and they were complimentary of each other. There was no need to sacrifice one for the sake of the other. If there is a conflict it should be avoided as far as possible.



DIRECTIVES OUTSIDE PART 4

1. CLAIMS OF SCS AND STS TO SERVICES--- FOR APPT WITH UNION OR STATE (ART 335 IN PART 16)
2.INSTRUCTION IN MOTHER TONGUE---AT PRIMARY STATE OF EDUCATION TO CHILDREN IN LINGUSTIC MINORITY (ART 350 A IN PART 17)
3.DEVELOPMENT OF HINDI LANGUAGE----  DUTY OF UNION TO SPREAD HINDI( ART 351 IN PART 17)






IMPLEMENTATIONS OF DPSP

1. PLANNING COMMISION ESTAB IN 1950 ----FOR DEVELOP OF COUNTRY
2.MINIMUM WAGES ACT (1948), PAYMENT OF WAGES ACT





Private firms can’t claim mining rights: Supreme Court
As per the latest ruling of the Apex court, Private companies cannot claim any right of exploitation of minerals and the State can impose a ban on private mining notwithstanding its being permitted earlier.
As per the court if a measure is taken to ban private mining of a single minor mineral for conserving it, such a ban, if it is otherwise within the bounds of the authority given to the government by the statute, cannot be said to involve any change of policy.
Constitutional Basis in support of the ruling:
 As per Article 39(b) of the Directive Principles of the Constitution, the state shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as to best subserve the common good.
 Article 39 (c) says that state should see to it that operation of the economic system does not result in the
concentration of wealth and means of production to the common detriment.
The case was filed by several mining companies disgruntled over the withdrawal of the recommendations made by the Jharkhand govt to provide them license for mining. The proposals were rejected by the centre on the ground that subject area was under reservation and was not available for exploitation by private parties.