You are on page 1of 16



Overview of the paper
The Constitution of India has issued two mandates to the Parliament, the Legislatures of
the States and to all the governmental machineries- firstly, not to take away or abridge certain
rights described as Fundamental Rights and secondly, to apply certain principles described as
Directive Principles of State Policy.1 The Fundamental Rights are mostly of individual character
and are primarily to protect the individuals against arbitrary state action and are intended to
foster the ideal of political democracy. However, the Constitution makers had realized the
impracticality of adherence to mere abstract democratic ideals sans any political, economic and
freedom and security in addition to the social freedom, which led to the enunciation of Directive
Principles of State Policy.2
As was rightly argued upon by J. Krishna Iyer, the deeper roots of our social system lie
buried in our struggle for independence and the fresh shoots of our emerging order finds
provisional expression in our Constitution.3 The Indian Constitution is first and foremost a
social document. The majority of its provisions are either directly aimed at furthering the goals
of the social revolution or attempt to foster this revolution by establishing the conditions
necessary for its achievement. Yet, despite the permeation of the entire Constitution by the aim
of national renascence, the core of the commitment to the social revolution lies in Parts III and
IV, in the Fundamental Rights and Directive Principles, respectively.4 These two part shave been
termed the Conscience of the Constitution5 which necessitated a coherent and socially relevant
understanding of their interrelationship. With initial glitches in the understanding, the position
was clarified by the Supreme Court in the case of Minerva Mills v. Union of India.6 The author in


PRINCIPLES, 1st ed. 2003 (reprint), p 52.
Justice VR Krishna Iyer, JUSTICE AND BEYOND, 1980, p 54.
Granville Austin, THE INDIAN CONSTITUTION- CORNERSTONE OF A NATION, 14th reprint 2009, p 50.
AIR 1980 SC 1789.

Electronic copy available at:

the paper aims at highlighting the significance of the decision in the case and its relevance in the
modern jurisprudential discourse of rights and duties.

Research Questions
1. Whether the relationship between Part III (Fundamental Rights) and Part IV (Directive
Principle) of the Constitution as provided in the decision of the Minerva Mills case is in sync
with the ideology of the Constitution framers?
2. Whether the decision of the Minerva Mills case still holds relevance in the present
The decision of the Minerva Mills case laid down the relationship between Part III and
Part IV which is in sync with the ideology of the Constitution framers and still holds relevance in
the present context.


Understanding Fundamental Rights
The Fundamental Rights of the Constitution are those rights of citizens, or those negative
obligations of the state not to encroach on individual liberty.7 The Fundamental Rights
guaranteed under the Constitution contain those basic rights sans which societal survival would
eventually be a mirage8 and which cannot be taken away by ordinary laws.9 The purpose of
enumerating these basic rights in the Constitution is to safeguard the basic human rights from
the vicissitude of political controversy and to place them beyond the reach of the political parties
who, by virtue of their majority, may come to form the government at the Centre or in the
State.10 The entrenchment of the rights has dual aspect- firstly, they confer justiciable rights on
the people which can be enforced through the courts against the government and secondly, they

Supra note 4 at p 51.

VR Krishna Iyer, Access To Justice, 1st ed. 1993, p 1.
Prof. MP Jain, INDIAN CONSTITUTIONAL LAW, 5th ed. (reprint) 2008, p 828.
Chairman, Railway Board v. Chandrima Das [AIR 2000 SC 988].

Electronic copy available at:

constitute restrictions and limitations on government actions whereby government cannot take
any action, administrative or legislative, which infringes Fundamental Rights.11
The rights- duties debate is age old and various philosophers have enumerated diverse
theories on the subject of importance of rights in the society and its requirement in a non- rights
based society. Allen Buchanan in his article What is so special about rights has addressed the
issue whether the concept of right has certain unique features which make them so valuable as to
be virtually indispensable element of any acceptable social order.12 He concludes that rights
might not be indispensable but are necessarily significant for the society as it provides a ground
for getting compensated, avoids any excuses for non- performance, provides a limit to the
morally optimal and provides incentives for growth without frustrating individual goals and life
The concept of Human rights protects individuals against the excesses of the state and
represents an attempt to protect the individual from oppression and injustice and in modern
society it is widely accepted that right to liberty is the very essence of a free society and it must
be safeguarded at all times.14
Jurisprudential theorization
The origin of basic and inalienable rights guaranteed to the individuals can be traced back
to the natural law philosophers who expounded over such inherent human rights and sought to
preserve these rights by propounding the theory of social compact.15 The Natural Law ideals
paved the way for rising tide of individualism, which culminated into English Revolution of
1688, French Revolution of 1789 and the American Declaration of Independence followed by
Renaissance and Reformation leading to spiritual emancipation of the individual.16 The French
Revolution declared that the aim of political association is the conservation of the natural and
inalienable rights of man.17 Locke contributed to the emancipation of individuals in a distinct
manner by placing the individuals in the centre and investing in him the inalienable rights by
stating that man being born, as has been proved, with a title to perfect freedom and an
uncontrolled enjoyment of all the rights and privileges of the Law of Nature, equally with any

Supra note 9.
Allen Buchanan, 2 Social Policy & Philosophy 61-75 (1984).
Supra note 9 at p 827.
W. Friedmann, LEAGAL THEORY, 5th ed., 4th Indian reprint 2008, p 117.
Supra note 14.

other man, or number of men in the world, hath by nature a power not only to preserve propertythat is his life, liberty, and estate18
Rights have been declared to be a pervasive concern of modern analytical jurisprudence
wherein two competing theories regarding nature of rights are prevalent- one which emphasizes
on will or choice and other emphasizing on other interests or benefits.19 The will or choice theory
recognizes maximum degree of individual self assertion, moral individualism and considers that
individual discretion is the single most distinctive feature of the concept of rights. The interest
theory, on the other hand, argues that purpose of rights is not to protect individual assertions but
certain interests and rights are the benefits secured for persons by rules regulating relationships.20
Salmond has defined rights as interests protected by rules of right that is by moral or legal rules
and espoused right to always entailing a duty that others ought to provide him with it, or that
ought not to prevent him getting it, or merely that it would not be wrong for him to get it.21
Henry Shue considered rights to be providing the rational basis for justified demand, and basic
rights are everyones minimum basis for reasonable demands upon the rest of the humanity, the
denial of which is unacceptable.22
Evolution of Fundamental Rights in the Indian Constitution
The demand for the Fundamental Rights can be traced back to the period of formation of
Indian National Congress in 1885 when Indians wanted to end the discrimination inherent in the
colonial regime and desired the same rights and privileges as enjoyed by their British masters.23
The first explicit demand was made in the Constitution of India Bill, 1886 followed by Annie
Besants Commonwealth of India Bill, 1925 which was reiterated firmly by the Nehru
Committee in 1928 which asked for such Fundamental Rights which could not be withdrawn.24
The Sub- committee on Minorities in 1930 enunciated a comprehensive draft declaration on
Fundamental Rights and Dr. BR Ambedkar in the meeting also focused on the need for inclusion
of sanctions for the enforcement of the rights, including a right to redress in case of violation.25
Finally, the Sapru Committee in 1945 recommended that the declaration of Fundamental rights


Ibid at p 394.
Ibid at p 395.
PJ Fitzgerald, SALMOND ON JURISPRUDENCE, 12th ed., Indian Economy reprint 2009, p 40.
Supra note 4 t pp 52- 53.
Supra note1 at p 53.
Ibid at p 54.

was absolutely necessary, for not only giving assurances and guarantees and guarantees to
minorities, but also for prescribing a standard code of conduct for the government machinery.
The first step towards incorporation of these rights in our Constitution was the
appointment of an Advisory Committee, followed by appointment of Sub Committee on
Fundamental Rights in 1947. The sub- committee realized that although there were some
disagreements on techniques, there was very little on principle as history had done much of the
The members of the sub- committee instantly and unanimously decided upon the nature
of Fundamental Rights to be justiciable which was followed by the issue of methodology of
securing these rights to every citizenry. The method decided upon was the English device of
prerogative writs, or directions in form of writs. Munshi, Ambedkar and Ayyar strongly and
actively favoured the inclusion of right to Constitutional remedies which was unanimously
agreed upon and all the High Courts and Supreme Court were conferred the power of issuing
writs.27 The next pertinent issue related to the extent and ways of limiting the rights, which was
strongly advocated by Ayyar and Munshi. With the acquaintance with foreign precedent the
Assembly presided over the thought of written provisos to rights for suspension. This proviso,
especially the provision of suspension of rights including the provision related to suspension of
right to constitutional remedies during emergency ire the Assembly members. However, in the
final draft the provision of blanket suspension was removed to curtail any future evidence of
injustice to the people of India.
Understanding Directive Principles of State Policies
In order to usher in an era of social and economic democracy in the country it was
considered pertinent to armour every individual with quintessential social justice sans which,
according to J. Iyer28, the life is out of step with the rhythm of civilized existence. The Directive
Principles, borrowed from Irish Constitution, provides principles obligating the state to take
positive actions in certain directions in order to promote welfare of the people and achieve
economic democracy and contains directions for the functioning of the governmental machinery.
These principles have at their kernel the idea of upholding justice, which fundamentally means
a harmonious blending of selfish nature of man and collective good, contained in the Preamble of

Supra note4 at p 63.

Supra note 4 at pp 67-68.
Supra note3.

the Constitution. Justice Hedge relies on Directive Principles in explaining social justice and to
him, social justice meant the sum total of Directive Principles.29 Austin rightly remarked that
India must have a socio- economic revolution designed not only to bring about the real
satisfaction of the fundamental needs of the common man but to go much deeper and bring
about a fundamental change in the structure of the Indian society.30
Nehrus idea of socialism to bring in new social order was asserted by J. Iyer, who
believed in maximization of collective resources of the community and their equitable
distribution to usher in social justice. The Directive principles constitute the positive rights,
which according to Henry Shue, are the right to subsistence imposing a positive duty on the state
to do something.31 The conception of Distributive Justice devised by John Rawls, meaning
equality for all, both in terms of basic liberty of social life and in distribution of all forms of
social goods, is reflected in the ideology of DPSP.
In India, the idea of state undertaking functions along with the enlargement of rights and
freedom can be traced back to the ancient text of Kautilyas Arthshashtra providing for dharma
or the principles of the states.32 Raja Dharma in effect was the fundamental social and political
principle exposing complete fulfillment of human ends as well as universal security. Thus, the
idea of declaration of policy in regard to social and economic obligations of the State cannot be
said to be foreign to the genus of India.
Evolution of DPSP in Indian Constitution
The Directive Principles of State Policy set forth the humanitarian socialist precepts that
were the aims of Indian social revolution. However, this precept did not find agreement from few
of the Assembly members, especially regarding justiciablity of these principles. The
dissatisfaction of the proposition could be gazed from the proclamation by TT Krishmachari,
supported by other members, where he described DPSP to be a veritable dustbin of
sentiments.33 The Assembly members, especially the members of the Select committee in the
Fundamental Rights were aware of the practice in American and European Constitutions where
the most characteristic feature of the Constitutions was the recognition of the fact that one of the


(1971) 15.
Supra note 4 at p 67.
Supra note 22 at pp 35- 36.
Supra note 1 at p 56.
CAD VII, 12, 583.

chief functions of the State must be to secure well being of the citizens and the industrial
prosperity of the nation.34 Munshi, speaking strongly in the favour of the principles said, in
order to form the basis of protest against arbitrary legislation, they are inevitable.35
B N Rau, unlike other Assembly members had approached the question of Fundamental
Rights with little scepticism arising out of the difficulty of defining the negative rights and
effectively protecting them and setting out the positive rights merely as a moral precept for the
authorities. KT Shah, one of the most doctrinaire Socialist of the Assembly members, believed
that there must be a specified time limit within which the Directive Principles should be made
justiciable to save them from being mere pious wishes and so called window dressing for social
The initial approach of the Assembly was to make no distinction between positive
obligations and negative liberties, however later it was realized that some of the negative rights
were more susceptible to court enforcements. Thus, the Directive Principles were included in the
Constitution under Part IV as non- justiciable rights and as instruments of instructions and
hailed as the essence of the Constitution.


Factual matrix
In the aftermath of the enunciation of the doctrine of basic structure of the Constitution
by the Supreme Court in the case of Keshavanandha Bharti v. State of Kerala, this case involved
challenge to the constitutionality of Section 4 of the Constitution (42nd Amendment) Act, 1976,
which amended Article 31C of the Constitution by substituting the words and figures "all or any
of the principles laid down in Part IV for the words and figures "the principles specified in
Clause (b) or Clause (c) of Article 39" . A second challenge was mounted on Section 55 of the
Constitution (42nd Amendment) Act, 1976, which inserted Sub-sections (4) and (5) of Article
Petitioner no. 1, which was a limited company, owned a textile undertaking called
Minerva Mills in the State of Karnataka. The undertaking was nationalized and taken over by

Supra note 4 at p76.

Ibid at p 78.
Ibid at p 79.

Central government under the provision of Sick Textiles Undertakings (Nationalisation) Act,
1974. Petitioners nos. 2 to 6 were the shareholders in the company. Respondent no. 1 was the
Union of India and Respondent no. 2 was the National Textile Corporation Limited in which the
textile undertaking of the corporation came to vested under Section 3(2) of the Nationalisation
Act, 1974. A committee was appointed by Central government under Section 15 of the Act to
make an investigation into the working of the corporation as it was of the opinion that the
production o f the corporation is going to fall substantially. The committee submitted its report
based on which the government decided to take over the management of the company on the
ground that its affairs were conducted in a manner detrimental to public interest.
The petitioners challenged the validity of the Nationalisation Acton the ground that it was
violative of Article of 14, 19 (1) (f) and (g) 31 (2). The Natioanlisation Act was included in the
IX Schedule of the Constitution by the thirty ninth Constitution Amendment Act, 1996, which
was also challenged. The forty second Amendment Act was automatically covered under the
challenge as it inserted clauses 4 and 5 to Article 368 which made Constitutional Amendments
immune from judicial scrutiny.
Issue involved
Whether the amendments introduced by Sections 4 and 55 of the Constitution (42nd
Amendment) Act, 1976 damage the basic structure of the Constitution by destroying any of its
basic features or essential elements?
Decision of the Court
By a majority of 4:1, the Court held the Section 4 of the Constitution (42nd Amendment)
Act, 1976 as being unconstitutional on the ground of violation of the basic structure. Similarly,
the Section 55 of the Constitution (42nd Amendment) Act, 1976 was held unconstitutional
unanimously. A detailed look at the majority and minority opinions in this regard is the key to
understanding the philosophy underlying the decisions on both the aforesaid aspects.37
Majority Opinion
The majority opinion was delivered by Chief Justice Chandrachud on behalf of Gupta J.,
Untawalia J. and Kailasam J.
(1) Validity of Amendments to Article 368



Chandrachud, C.J., discerned the ratio of Keshavanada Bhartis case as Parliament has
the right to make alterations in the Constitution so long as they are within its basic framework.
The aforesaid amendments tend to confer unlimited amending power on to the Parliament
extending up to the effacement of the Constitution itself. In the Post- Keshavanada phase, the
Court refused to recognize that the constituent power of Parliament can override the basic
structure and identity of the Constitutional document. The majority held that the limited
amending power of the Parliament was itself a basic feature of the Constitution and could not be
used to remove the limitations on this power by means of such amendments. Thus, clause (5)
was declared as unconstitutional on the ground of damaging the basic features of the
Constitution. Moving further, clause (4) which barred judicial review in cases of constitutional
amendments was held unconstitutional as it sought to make the entire Part III unenforceable and
thus, enlarge the power of the Parliament limited by Article 13. The Court reasoned that if a
constitutional amendment goes beyond the pale of judicial review then ordinary laws made in
pursuance thereof will escape judicial scrutiny by virtue of protection offered by such an
omnipotent amendment. Hence, such a clause was in transgression of the limitations on the
amending power and hence unconstitutional.
(2) Validity of Amendments to Article 31C
The amendment made to Article 31C vastly extended its scope from protection of laws
made for the purposes of Article 39 (b) and (c) to all the Articles under Part IV from challenge
on the ground of Article 14 and 19. The majority set on the enquiry whether Article 14 and 19
could be said to be part of the basic structure of the Constitution so that no constitutional
amendment may be made to abrogate them. The majority then undertook the task of weighing
Directive Principles of State Policy against the Fundamental Rights. The preservation of basic
liberties provided under Part III has also been a solemn endeavour of the Indian Constitution. In
view of the drafting history of Indian Constitution, both Part III and Part IV formed an integral
and indivisible scheme and thus in the opinion of the majority to destroy the guarantees given
by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the
Constitution by destroying its basic structure. The Court held that
Indian Constitution is founded on the bedrock of the balance between Parts III
and IV. To give absolute primacy to one over the other is to disturb the harmony
of the Constitution. This harmony and balance between fundamental rights and

directive principles is an essential feature of the basic structure of the

Constitution. Those rights are not an end in themselves but are the means to an
end, The end is specified in Part IV.
Hence, the majority declared the amendment to be beyond the powers of Parliament as violative
of the essential features of the Constitution.
Minority opinion
The majority view determined the significance of Directive Principles in the governance
of the country, however, gave primacy to the ideas of Part III as compared to Part IV of the
Constitution. Justice Bhagwati espousing the minority opinion from a human rights perspective
that there was no fundamental difference between civil and political rights enshrined under Part
III and social and economic rights enshrined under Part IV. Describing Constitution as a social
document, he opined that the dynamic provisions of the Directive Principles fertilise the static
provisions of the Fundamental Rights. The object of the Fundamental Rights is to protect
individual liberty, but can individual liberty be considered in isolation from the socio-economic
structure in which it is to operate!
Discarding the jural correlative of claim and right, he stated that Part IV casts a duty on
the State even when it does not create any right for the populace. The non- compliance with
Directive Principles, according to him, would lead to gross violation of the Constitutional
Provision and no precedence could be provided to either Fundamental Right or Directive
Principle over each other. If Fundamental Right would be given primacy over DPSPs the result
would be that a positive mandate of the Constitution commanding the State to make a law would
be defeated by a negative constitutional obligation not to encroach upon a Fundamental Right
and the law made by the legislature pursuant to a positive constitutional command would be
delegitimised and declared unconstitutional, which is not permissible in any situation.


Although the Fundamental Rights and Directive Principles appear in the Constitution as
distinct entities, it was the Assembly that separated them; the leaders of the Independence
Movement had drawn no distinction between the positive and negative obligations of state. Both
types of rights developed as a common demand, products of the national and social revolutions,

of their almost inseparable intertwining and of the character of Indian politics itself.38 Roughly
Fundamental Rights and Directive Principles represent two streams in the evolution of civil and
political rights and social and economic right, respectively.39 More exactly, justiciablity is the
main difference between them which led Supreme Court40 to uphold that the Directive
Principles have to conform to and is subsidiary to the chapter of Fundamental Rights.41 This
position was later amended by the Court in the Minerva Mills42 case, where it was held that
harmony and balance between Fundamental Rights and Directive Principles is an essential
feature of the basic structure of the Constitution.
Amartya Sens approach to social justice in the form of emphasis on human capabilities,
as propounded by Martha Nussabum that there are certain core human entitlements which should
be protected providing the bare minimum of what human dignity requires, can be reflected upon
at this juncture. The list of human capabilities provided by her contains a careful mix of positive
and negative rights, namely DPSP and FR, respectively.43
Prof. MP Singh in his article has discussed the doubts raised by HM Seervai regarding
importance of Directive Principles.44 The first concern raised by him relates to judicial nonenforceability which are refuted by providing following arguments- firstly, several other
provisions in the Constitution also exclude certain matters from the purview of the Courts45,
Secondly, the Courts decline to entertain certain Constitutional issues on the ground of self
imposed restrictions, lastly, there are a few Fundamental Rights which are inherently non
enforceable and could not be made enforceable until a supportive law was enacted (ex- Article
17). Moreover, internationally justiciablity is not considered to be an indispensable characteristic
of human rights and in case of social and economic rights a pragmatic approach is considered
superior to the approach based on judicial remedies.46
The reason provided by State for non- enforceability of the socio- economic rights has
been the positive role to be played by the State wherein State is required to undertake significant

Supra note 4.
State of Madras v. Champakan Dorerajan, [1951 SCR 525].
Supra note 39.
Supr anote6.
Supra note 18 at pp 600-601.
Supra note 39.
Example- Articles 74(2), 122, 163(2).
Supra note 39.

strides towards making social and economic equality and development a reality requiring huge
financial resources. Lack of such facilities has always been taken as a defense by the State for
making DPSP non- enforceable which would add to the burden of the State. This argument can
be refuted at the very outset on the facts provided by The Economic Survey 2010-2011 of the
growing Indian economy which has substantially withstood the shock of the collapse in world
growth growing due to global financial crisis.47 The dualism in the economic policy formulation
where the State gives primacy to developing world class airport terminals over providing
adequate food and nutrition to every individual has been often highlighted48 which has absolutely
weakened the argument presented by the State for non- enforceability of Directive Principles.
The discourse on Security and Subsistence by Henry Shue, representing negative and
positive rights, respectively, bears the same analogy. He has referred to positive rights as
secondary rights but refutes the premise on the ground that the protection of negative or the
security rights requires positive measures to be taken and therefore their actual enjoyment
requires positive measures. For example, to maintain law and order in the society and to ensure
non- interference in rights of individual the State is required to maintain Police which is a
positive act of State requiring financial and other resources. Hence, no precedence can be given
to one right over another.49
Bhikhu Parekh in his article50 questions the existence of rights in the society basing his
argument on the fact that in the pre seventeenth century era there were numerous societies
having harmonious existence but were devoid of any conception of rights. Such societies based
on no- claim had internalized the system of duty and obligation whereby the members of the
society performed their respective duties as part of their moral behaviour and the performance
was not based on the existence of any right in any individual. He further discusses two
conceptualizations of rights- as protection and provision. Rights as protection included right to
life, liberty and property with forbearance or non interference as the only requirement from its
agents. The rights were constricted in a narrow sense, for instance, the right to life was taken to
mean the right to be free from physical harm by other men; but not the right to material

Weekly, Vol. XLVI NO.12, March 19, 2011, p 10.
Supra note 22 at p 39.
(ed.), The Right to be Humane 1-22 (1987).

sustenance without which life is impossible, or the right to be free from sanitary conditions of
work or an unhealthy living environment or excessively long hours of work-all of which directly
or indirectly reduce the span of life.
Rights as provision are the recent addition as social and economic rights which require
providing for sustenance of life requiring the government to play a positive and active role in
economic life. They also imply that, in order to meet the social and economic rights of those in
need, citizens should not merely forbear from interference, but positively contribute by taxes and
other means to the resources which a government requires. The new rights thus called a radical
change in the prevailing views on the role of the government and, more importantly, in the nature
of the state.
In the pre modern society there were numerous sources of moral conduct leading to
communal ties and customary bonds. However, this witnessed a severe set- back in the modern
society where men began to define themselves as free individuals, with no ties to each other save
those they have chosen to establish; and no duties other than those entailed by such ties. In such
a society, in order to restore the communal harmony and belongingness to the community, rights
were considered as provisions and not only protection. Order in modern society is articulated in
terms of a system of rights and obligations created by the law. One fights for ones rights, but at
the same time respects others rights. The motive behind inclusion of rights as provision was to
build a political community where individuals are not considered to be separate entities, as per
the theory of individuation, but feels obligated to contribute to the society. Thus, the significance
of co- existence between positive and negative rights has been highlighted in this discourse.
Moreover, in the international arena also the distinction between the negative rights,
formulated under ICCPR and positive rights under ICESR has been blurred over time and unlike
earlier times, Civil and Political rights are not given primacy over the Social and Economic
Hence, an analysis of the present scenario in the light of the various scholarly discourses,
reiterates the importance of balance between Fundamental Rights and the Directive Principles, as
was emphasized upon in the Minerva Mills case. However, in the present context the minority
opinion of Justice Bhagwati holds more relevance as the government has realized the
significance of the meaning of Justice Bhagwati when he said -

the Fundamental Rights are no doubt important and valuable in a democracy,

but there can be no real democracy without social and economic justice to the
common man and to create socio-economic conditions, in which there can be
social and economic Justice to everyone, is the theme of the Directive Principles.
It is the Directive Principles which nourish the roots of our democracy, provide
strength and vigour, to it and attempt to make it a real participatory democracy
which does not remain merely a political democracy but also becomes social and
economic democracy with Fundamental Rights available to all irrespective of
their power, position or wealth.
Along with the numerous legislative efforts in the enactment of various welfare schemes such as
MNREGA, ICDS, Slum Areas (Improvement and Clearance) Act, 1956, The Minimum Wages
Act, 1948, the judiciary has also recognized its obligations and has undertaken the
institutionalized social movement of carving out core content of every right which is obligated
to be fulfilled irrespective of economic capacity to ascertain its consonance with international
rights framework. The Courts have moved ahead from the era of non- enforceability of the
Directive Principles and are progressively adopting a balanced approach towards FR and DPSP.
For example, through various cases on the issue of right to food (including Kishan Pattanayak
v. State of Orissa51, Indian Council of Legal Aid and Advise v. Union of India52 and PUCL v.
Union of India53 ), the state has identified its core obligation of respecting, protecting and
fulfilling this justifiable demand which resulted in the soon to be enacted National Food
Security Act. The Pavement Dwellers Case54 is a landmark judgment which acknowledged the
right to shelter within the fundamental right framework while addressing the conflicting
interests of pavement dwellers and pedestrians. Through judicial intervention with the case of
Paschim Banga Khet Mazdoor Samiti v. State55 right to health was identified as a basic right to
be ensured to every individual.
The judiciary has created provision for enforcement of these Directive Principles by
either bringing it under the widened felly of Right to Life under Article 2156 or by including an

1989 Supp 1 SCC 258

W.P. (Civil) No. 42/97
(2001) 5 SCALE 303
Olga Tellis v. Bombay Municipal Corporation [1985 (3)SCC 545].
(1996) 4SCC 37.
Right to adequate housing and shelter has been included under the Article 21 by the Pavement Dwellers Case.

entire provision of DPSP under Fundamental Rights such as inclusion of Article 21A under
Eighty- sixth Constitutional Amendment Act, 2002 which made free and compulsory education
to every child till the age of fourteen years a Fundamental Right. The judicial approach to this
effect has been affirmative under cases of State of Bihar v Project Uchch Vidiya Sikshak Sangh57
, Election commission of India v St.Mary school58. The case of Unni Krishnan J.P v State of
Andhra Pradesh59 was the first initiative which held right to education to be implicit in right to
life enshrined in Article 21.
Hence, the increasing trend of reading Directive Principles into Fundamental Rights
highlighting the significance of both the aspects has re- emphasized the necessity of a balanced
approach to be adopted which was decided upon in the case of Minerva Mills. In todays
context there is a conscious effort on part of the judiciary to avoid creating a hierarchy in the
implementation of the Part III and Part IV of the Constitution.
Judicial process is generally considered efficient in preventing encroachments on rights
or liberties. But can it create new rights and enforce positive action in terms of allocation of
resources? By looking at some of the most important constitutional social rights cases of the last
ten years more closely, and viewing them in terms of the specific Right to Food, the Right to
education, and the right to health below, we can see that social rights adjudication in India is
indeed vibrant and dynamic. Social rights litigation in the Supreme Court has been radical, where
the Court has recognised new rights and designed interesting new remedies for their
enforcement, , and that they have been made enforceable despite them not being included as
justiciable Fundamental rights in the constitution.
With an increased debate over primacy and significance of Fundamental Rights and
DPSP over each other, the time is apposite to reminiscence the significant decision of the apex
court in Minerva Mills case. The case set the foundation for progressive growth and development
of the nation by providing equal opportunities for both civil- political and socio- economic rights
guaranteed to every individual by the Constitutional makers. Krishna Iyer J. referring to our
Constitution as Socialist humanist Constitution held that Part III and IV of the Constitution are

(2006) 2 SCC545.
(2007) 13 SCALE 777
(1993) 1 SCC 645.

the wraps and woof of the fabric of our National Charter and a radical ideology of a system of
active equalism, human dignity and fundamental freedoms in the setting of dynamic,
participatory democracy with an egalitarian social milieu in which the full and free development
of every individual is basic.60
Over a decade the Courts have actively used the Directive Principles to interpret
Fundamental Rights and legislations. There is a general presumption that all legislation and state
action are aimed at implementing directives.61 However, the Directive Principles have not been a
panacea for the socio and economic and problems in India, as intended. Although they have
played an important role in the administrative and legislative programme, there have been
deficiencies in the implementation of the policies framed for the purpose. Structural problems,
financial restraints, unwillingness of political parties, the limited resources and the dualism in
economic policies, are few of the reasons for the non attainment of the ideals specified under the
For many who subscribe to the generational approach to human rights protection that
civil and political rights are on a higher rung than the social, economic and cultural rights by
virtue of being enforceable, if the above mentioned examples of the Indian experience are any
indication, their enforceability is clearly fundamental. In several cases the Supreme Court has
rejected the notion of non-enforceability of social rights. There is no reason therefore, why social
rights such as the right to food, health, education, housing, livelihood and others cannot be made
subject to judicial determination. The Indian experiment proves that societies can indeed choose
to make social rights justiciable and develop appropriate methods for their implementation and


Supra note 3 at p 33.

INDIAN EXPERIENCE, HeinOnline -- 8 S. Afr. J. on Hum. Rts. 29 1992.