“EFFECTIVENESS OF DIRECTIVE PRICIPLES”

TABLE OF CONTENTS

CONTENTS PAGE NO.

Introduction ………………………………………………………………………4

History of Directive Principles…………………………………………………….4-5

Nature of Directive principles……………………………………………………..5-6

Classification of directive principle………………………………………….……7-8

Implementation of Directives…………………………………………………….8-10

Important Amendments…………………………………………………………10

Effectiveness of Directive principles……………………………………………11-22

Conclusion…………………………………………………………………………...23

Bibliography………………………………………………………………………...24

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 TABLE OF CASES

 A.K.Gopalan v. State of Madras, 1950 SCR 88

 Ahmedabad Municipal Corporation v. NawabKhan, (1997) 11 SCC at p. 123

 Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161

 Francis Coralie v. Union territory of India, AIR 1978 SC 597

 K.Rajendran v. State of Tamil Nadu, (1982) 2 SCC 273

 M.C.Mehta v. State of Tamil Nadu, (1996) 6 SCC 772

 Minerva Mills Case, AIR 1980 SC 1789

 Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545

 State of Madras v. Champakam Dorairajan, (1951) SCR 525

 State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117

 Unnikrishnan J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645

 V.R.Krishna Iyer,J. in State of Kerala v. N. M.. Thomas, (1976) 2 SCC 310

 Vishaka v. State of Rajasthan, (1997) 6 SCC 241

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 Introduction1

The directive principles of state policy are the guidelines for the union and state governments
of India and are supposed to be considered by them while framing any laws & policies. The
directive principles are contained in part fourth of the Indian constitution but cannot be
claimed as a matter of right by the citizens of India i.e. cannot be enforced in a court of law
but the essence of these principles is taken as being elementary for governing the country &
hence a duty has been imposed on the states to consider these principles while framing any
laws so as to build a society which believes in promoting equality and justice. These
principles are basically an inspiration taken from the Irish constitution & Ghandian
philosophy and they aim at to promote social fairness, economic benefits, foreign policies
and strong legal and administrative management.

Important Amendments in DPSP’S

To bring a change in Directive principles, a Constitutional amendment which has to be

passed by a special majority of both houses of the Parliament is required. This means that an
amendment requires the approval of two-thirds of the members present and voting. However,
the number of members voting should not be less than the simple majority of the house —
whether the Lok Sabha or Rajya Sabha.2

 Article 31-C, ‗inserted into the Directive Principles of State Policy by the 25th
Amendment Act of 1971 seeks to upgrade the DPSPs. If laws are made to give effect
to the Directive Principles over Fundamental Rights, they shall not be invalid on the
grounds that they take away the Fundamental Rights.
 Article 45, which ensures Provision for free and compulsory education for children,
was added by the 86th Amendment Act, 2002.
 Article 48-A, which ensures Protection and improvement of environment and
safeguarding of forests and wild life, was added by the 42nd Amendment Act, 1976‖

1
www.indiaetzone.com, Last visited on 06-12-2010
2
―The Directive Principles of State Policy in India‖, Cited from: www.civilserviceindia.com, Last visited on
15-12-10

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 History of Directive principles of State policy3

The concept of Directive principles has been largely lent from the constitution of Ireland. The
Irish Novelist movement greatly influenced the framers of Indian constitution & they
incorporated these Directives as Directive principles of state policy. The idea of these
principles has also its roots in Declaration of rights of Man adopted by France & the
Declaration of Independence by American colonies. Besides this the Universal Declaration of
Human rights also laid a great impact on Indian constitution. In 1919 the British Govt. and
police enjoyed widespread powers under the Rowlatt Act and as a result of that indefinite
arrests and detentions started happening, the searches took place without warrants, undue
restrictions on public gatherings, unjustified censorship on both electronic & print media
prevailed. These atrocities ultimately the people to think about their rights & as result of that
there was great public opposition against these draconian laws under Rowlatt Act and in
furtherance of that a huge on-violent civil Disobedience movement started throughout the
country and there was an open demand for guaranteed civil freedoms and curtailment of
Government powers. At that time the movement for Independent India was also going on &
Indians looked upon the constitution of Ireland as a role model for Independent India‘s
government to scrupulously handle complex social and economic challenges across a vast &
diverse nation. Then in 1928, the Nehru commission which comprised of representatives of
Indian political parties came up with some constitutional reforms, pressing not only for
domainan status for India but also for guaranteed rights which are fundamental in nature,
ethnic and religious minorities to have a considerable representation and an effective restrain
in Government powers prevailing at that time. Again in 1931, the Indian national congress
proposed resolutions to safeguard the fundamental civil rights as well as socio-economic
rights such as minimum wages, abolition of un-touchability. Further in 1936, in order to
protect socialism, the congress leaders took inspiration from the constitution of USSR which
admired the idea that citizens have certain fundamental duties which are the means of
collective patriotic responsibility for protecting interests of nation and for overcoming the
challenges faced by it. Then came the time when India was declared as an independent
sovereign nation on 15 August 1947 and the first and foremost thing to be done was to frame
a constitution and this task was undertaken by the constituent Assembly which comprised of
elected representatives from under the leadership of Dr.Rajendraprasd. Various members
from different backgrounds were appointed by congress for framing the constitution and
other Domestic laws .Eventually B.R Ambedkar was appointed as the chairperson of drafting
committee & J.Nehru and Sardar vallabhbhai patel were given the chairs of other committees
& sub-committees. Then in 1948 a very important development strongly influenced the
Indian constitution and it was the adoption of Universal declaration of human rights by
General assembly of United Nations and it invited all the member states to incorporate these
rights in their respective constitutions. As a result both fundamental rights and directive
principles were inserted in first draft of constitution in February 1948, in 2 nd draft in October
1948 and in 3rd and final draft in November 1949 and were accordingly prepared by the
constitution.

3
―Directive Principles in India‖, Cited from: http://en.wikipedia.org/wiki/Directive_Principles_in_India, Last
visited on: 07-12-2010.

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 Nature of Directive principles of state policy4

The main object of DPSP‘S is to create such social and economic conditions which favours a
good life for all the citizens. They also aim at building an economic and social democracy
though a welfare state. They are a kind of yardstick in the hands of people to check the
performance of government and if they do not full fill their commitments, to throw them out
of the power. DPSP‘S though are non-justifiable rights of citizens but the states have to give
considerable importance to their essence while making any laws. Apart from the state all
other executive wings have to understand the very importance of DPSP‘S and even Judiciary
is under a duty to give a notable effect to these principles while deciding on social, economic
and other fundamental issues. The directive principles make certain that the state shall
endeavour to promote a welfare state in which social, economic and political justice is given
due consideration in all the institutions of life. They also compel the state to reduce the
economic and other inequalities like in status and opportunities not only among the
individuals but also among various groups putting up in different areas and engaged in
diverse working fields. They also aim at compelling the state to secure to all citizens a better
means of livelihood as well as equal pay for equal work for both men and women. They make
sure that the state shall avoid the concentration of wealth and monopoly of production and
ensure that the wealth is distributed for the betterment and welfare of the public in general.
The state should also take care of the child abuse and mistreatment of workers. The children
are the future of the nation and should be protected against moral and material neglect. The
state shall ensure equality of justice by providing free legal assistance to all so that justice is
not denied to anyone for economic or other disabilities. Another important responsibility of
state is to establish panchayats and aid them so as to make them effective independent self
governing functionaries. The shall take measures to provide education, secure jobs, public
assistance in case of un-employment, old age illness and disablement within its monetary
limits and also provide good and compassionate conditions of work and maternity aid to
women. The state shall also take necessary steps to provide descent working wage and proper
working environment to all the workers with full delight of spare time and social and cultural
activities. The promotion of cottage industries in rural areas is another important
responsibility of the state. DPSP‘S also compel the sate to secure a uniform civil code for all
citizens and impart free education to children up to the age of 14 years. The state is also duty
bound to work for the upliftment of ST‖S & SC‘S and other educationally and socially
backward classes. These principles remind the state to take steps to ensure public health,
improve the food and nutrition standards and restrain intoxicating drinks and drugs into the
country except for medicinal purposes. It is the job of the state to protect the wild life,
environment and forests. The state shall improve the Animal husbandry and agriculture in
accordance with modern technology and another duty of the state is to protect the
monuments, religious and historic heritages and places of national concern against any
obliteration and damage. The state has also to separate judiciary from Executive to ensure
transparency in decisions and for proper functioning of both the wings and the last but not the
least aim of DPSP‘S is to commit the state to keep up international peace and tranquillity,
value for international treaty obligation and settlement of international disputes through
Arbitration and other negotiable ways.

4
Supra n. 2

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 Classification of Directive Principles of State policy5

Directive Principles of State Policy have been classified into four categories. These are: (1)
The economic and social principles, (2) the Gandhian principles, (3) Principles and Policies
relating to international peace and security and (4) miscellaneous.

 The economic and social Principles

The state shall make an effort to attain Social and Economic wellbeing of the people by:
(1) Providing sufficient means of livelihood for both men and women.
(2) Managing the economic system in a way to avoid concentration of wealth in few Hands.
(3) Securing equal pay for equal work for both men and women.
(4) Securing apposite employment and hale and hearty working conditions for men, women
and children
(5) Protecting the children against abuse and moral deprivation.
(6) Formulating efficient provisions for securing the right to work, education and public
Support in case of unemployment, old age, sickness and disablement.
(7) Building provisions for ensuring just and humane conditions of work and for maternity
relief.
(8) Taking measures to secure the contribution of workers in the management of
undertakings etc.
(9) Facilitating education and economic interests of working sections of the people especially
the SCs and STs.
(10) Ensuring for all the workers rational freedom and cultural opportunities.
(11) Putting labours to raise the standard of living and public health.
(12) Securing early childhood care and education to all children of age in between 6 to 14.

 The Gandhian Principles

There are some principles, based on the morals propounded by Mahatma Gandhi. These
Principles are as follows: -
(1) Establishing of village panchayats
(2) Cottage industries should be promoted in rural areas

5
―Directive Principles of State Policies and Fundamental Duties‖, Cited from:
www.nios.ac.in/srsec317newE/317EL7.pdf, last Visited on:10-12-2010

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(3) To put a restraint on intoxicating drugs which are harmful to health?
(4) Protection of cattle breeds, ensuring their health & curbing cow and other animal
slaughters.
 Principles of State Policy Relating To International
Peace and Security:
India should deliver active collaboration for world peace and security and for that the state
Shall endeavour to: -
(1) Secure international peace and tranquillity
(2) Maintain a good relation with all the countries of the world
(3) Develop respect for all international laws and obligations.
(4) Facilitate the settlement of disputes through arbitration.
 Miscellaneous
The Directive Principles in this category call upon the state : -
(1) To secure for all Indians a uniform civil code.
(2) To protect historical monuments.
(3) To save environment from pollution and protect wild life.
(4) To make arrangements for disbursement of free legal justice through suitable
Legislations.

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 Implementation of DPSP’S
The State has put in many efforts to implement the Directive Principles. The Programme of
Universalisation of Elementary Education and the five year plans have been given the top
most priority in order to grant free education to all children up to the age of 14 years. In
furtherance of that anew Article 21-A was inserted in the constitution by the 86th Amendment
which makes it mandatory to provide free education to all children in the age group of 6 to 14
years .Both Central and state Governments are have taken steps to implement welfare
schemes for the weaker sections of society. For instance a lot of boys and girls hostels have
been and are being constructed for schedule casts and schedule tribes. The students belonging
to SC and ST who are pursuing medical, engineering and other professional course get free
books from government. IN 2002-03, Government released a sum of 4.77 crore for the
educational necessities of Schedule castes and schedule tribes6. Schedule castes and schedule
tribes being weak both financially and educationally, they suffered from lot of atrocities and
in order to curb those atrocities Government enacted the prevention of Atrocities Act of 1995.

There was considerable reformation in Land related issues. Many Land reform legislations
were enacted in order to provide land to farmers. Approximately 20,000000 acres of land was
disbursed in the year 2001 so as to provide land to schedule castes, schedule tribes and
landless people. At the same time the banking facilities are being made more convenient and
easy so as to make them expedient and handy especially in rural areas. The various social
legislations were enacted which greatly influenced the lives of common and poor people .e.g.
The Minimum Wages Act of 1948 authorizes government to fix minimum wages for
employees affianced in various employments. The Consumer Protection Act of 1986 ensures
for the better protection of consumers. The act is proposed to provide simple, prompt and
economical remedies to the consumers' gripes, prize relief and compensation wherever
apposite to the consumer. There was a time when women did not have those rights as were
enjoyed by men, the women worked equally hard as men did but got less remuneration than
men and in order to curb this the Government came up with a very important legislation, The
Equal Remuneration Act of 1976 which provided equal pay for equal work for both men and
women. The Sampoorna Grameen Rozgar Yojana was initiated in 2001 to achieve the
purpose of lucrative employment for the rural poor. The programme was put into practice
through the Panchayati Raj institutions.

Now almost all the states and union territories have Panchayati Raj and the most important
fact is that 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.
Another notable step is that it is mandatory for the state to provide free legal aid to persons
who are not in a position to engage a lawyer and this has been done especially in criminal
cases. Again in order to achieve transparency in decision making the judicial and executive
wings have been separated I all the states except Jammu and Kashmir and Nagaland. This has
greatly increased the effective functioning of both the wings. Besides all these improvements
DPSP‘S have also influenced the Foreign policies of India. India has in the past greatly
condemned all acts of aggression and terrorism and has also backed up the peace making
steps of United Nations. By 2004, the Indian Army had participated in 37 UN peace-keeping
operations. India played a vital role in the passing of a UN resolution in 2003, which seeked
to achieve better collaboration between the Security Council and the troop-contributing
countries .Apart from this India has remarkably favoured the nuclear disarmament.

6
Supra n. 2

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 Effectiveness of Directive principles of State Policy7

(i) The impact of directive principles upon the interrelationship doctrine or vice-versa is not
only conjectural but also realistic and gratifying. Interrelationship doctrine has given
momentum to, and got vigorous by the process of reading the directive principles into Part IV
of the Constitution.
(ii) There is no doubt about the fact that interrelation ship doctrine is embodied in
constitution & this can be seen when the substance set in the Preamble, the flexibility
imbibed in fundamental rights, the force of law, denial of compartmentalised treatment of
elementary rights and finally, the distinction between citizens and non-citizens with regard to
accessibility of fundamental rights and the possibility of invoking a fundamental right to avail
a suspended fundamental rights during urgent situations are taken into account with a
cognisant approach of unity in multiplicity.

Former Chief Justice of India Shri M.N. Venkatachelaiah said “that professor Bhatt examines
the relationship of fundamental rights inter se and the jurisprudential and constitutional
foundations of that interrelationship. The interrelationship is also a necessary implication of
constitutionalism and Rule of Law. It was viewed that professor Bhatt, in his elegant analysis,
indicates the '; parallel streams'; and ‗cross-currents‘ of fundamental rights and how these
rights inform and enrich each other. This discourse has its familiar ring in the International
Human Rights Regime, and the principles of their universality, indivibility and
interdependence Fundamental Rights and DPSP.‖

When the brawl for supremacy between fundamental rights and DPSP came up before the
Supreme Court in the case of State of Madras v. Champakam Dorairajan first, the court
said, ―The directive principles have to conform to and run subsidiary to the chapter on
fundamental rights.‖ Later, in the Fundamental Rights Case (referred to above), the majority
opinions reflected the view that what is fundamental in the governance of the country cannot
be less significant than what is significant in the life of the individual. Another judge
constituting the majority in that case said: ―In building up a just social order it is sometimes
imperative that the fundamental rights should be subordinated to DPSP‘S‖8 Again in State of
Kerala v. N. M.. Thomas justice krisna Iyer speaking for the majority held that:

―The DPSP have, through important constitutional amendments, become the benchmark to
insulate legislation enacted to achieve social objectives, as enumerated in some of the DPSP,
from attacks of invalidation by courts. This way, legislation for achieving agrarian reforms,
and specifically for achieving the objectives of articles 39(b) and (c) of the Constitution, has
been immunized from challenge as to its violation of the right to equality (art. 14) and
freedoms of speech, expression, etc. (art. 19). However, even here the court has retained its
power of judicial review to examine if, in fact, the legislation is intended to achieve the
objective of articles 39(b) and (c), and where the legislation is an amendment to the
Constitution, whether it violates the basic structure of the constitution. Likewise, courts have
used DPSP to uphold the constitutional validity of statutes that apparently impose restrictions
on the fundamental rights under article 19 (freedoms of speech, expression, association,

7
Supra n. 6
8
1951 SCR 525

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residence, travel and to carry on a business, trade or profession), as long as they are stated to
achieve the objective of the DPSP‖9

Thereafter in chorus, the judiciary took upon itself the mission of infusing into the
constitutional provisions the spirit of social justice. This it did in a series of cases of which of
which Maneka Gandhi‘s case was a landmark. In this case the petitioner‘s passport was
impounded and she was not allowed to travel and the decision was taken without giving a
chance of hearing & in order to explain the scope of predicisional hearings court went on to
explaining the scope of Articles 19,14 and 21 . In a departure from the earlier view,
A.K.Gopalan v. State of Madras, ―the court asserted the doctrine of substantive due process
as integral to the chapter on fundamental rights and emanating from a collective
understanding of the scheme underlying articles 14 (the right to equality), 19 (the freedoms)
and 21 (the right to life). The power the court has to strike down legislation was thus
broadened to include critical examination of the substantive due process element in statutes.
Once the court took a broader view of the scope and content of the fundamental right to life
and liberty, there was no looking back. Article 21 was interpreted to include a bundle of other
incidental and integral rights, many of them in the nature of ESC rights‖10. In Francis
Coralie v. union territory of India the court declared:

―The right to life includes the right to live with human dignity and all that goes with it,
namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and
facilities for reading, writing and expressing oneself in diverse forms, freely moving about
and mixing and comingling with fellow human beings. The magnitude and components of
this right would depend upon the extent of economic development of the country, but it must,
in any view of the matter, include the bare necessities of life and also the right to carry on
such functions and activities as constitute the bare minimum expression of the human self.‖ 11
The collective effect of these rights made court to think on certain areas where there was a
direct connection between poverty and law, as in case of bonded labour and child labour and
in areas where there was direct connection between crime and law as in case of under trials in
jail. In the analysis of various associated rights of dignity, living conditions, health into the
ambit of the right to life, the court defeated the difficulty of justifiability of these as economic
and social rights, which were hitherto, in their understanding as DPSP, considered non
enforceable.12 Some of these socio –economic rights were given strong connotations by the
Supreme Court…These are as follows:

Article 41of the Constitution provides that ―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.‖(Article 6 of the ICESCR) Article 38
states that the state shall strive to promote the welfare of the people and article 43 states it
shall endeavour to secure a living wage and a decent standard of life to all workers. One of
the contexts in which the problem of enforceability of such a right was posed before the
Supreme Court was of large-scale abolition of posts of village officers in the State of Tamil
Nadu in India. In negating the contention in K.Rajendran v. State of Tamil Nadu
that such an abolition of posts would fall foul of the DPSP, the court said:

9
(1976) 2 SCC 310 at para. 134, p. 367.
10
1950 SCR 88
11
AIR 1978 SC 597
12
www.indianetzone.com visited on 19-12-2010

10

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―It is no doubt true that Article 38 and Article 43 of the Constitution insist that the State
should endeavour to find sufficient work for the people so that they may put their capacity to
work into economic use and earn a fairly good living. But these articles do not mean that
everybody should be provided with a job in the civil service of the State and if a person is
provided with one he should not be asked to leave it even for a just cause. If it were not so,
there would be justification for a small percentage of the population being in Government
service and in receipt of regular income and a large majority of them remaining outside with
no guaranteed means of living. It would certainly be an ideal state of affairs if work could be
found for all the able-bodied men and women and everybody is guaranteed the right to
participate in the production of national wealth and to enjoy the fruits thereof. But we are
today far away from that goal.

―The question whether a person who ceases to be a government servant as per the law should
be reformed by being given an alternative employment is, as the law stands today, a matter of
policy on which the court has no voice But the court has since then felt more open to meddle
even in areas which would have been considered to be in the sphere of the policy of the
executive. Where the issue was of regularizing the services of a large number of casual (non
permanent) workers in the posts and telegraphs department of the government, the court has
not hesitated to invoke the DPSP to direct such regularization. The explanation was:
Even though the above directive principle may not be enforceable as such by virtue of Article
37 of the Constitution of India, it may be relied upon by the petitioners to show that in the
instant case they have been subjected to hostile discrimination. It is urged that the State
cannot deny at least the minimum pay in the pay scales of regularly employed workmen even
though the Government may not be compelled to extend all the benefits enjoyed by regularly
recruited employees. We are of the view that such denial amounts to exploitation of labour.
The Government cannot take advantage of its dominant position, and compel any worker to
work even as a casual labourer on starvation wages. It may be that the casual labourer has
agreed to work on such low wages. That he has done because he has no other choice. It is
poverty that has driven him to that state. The Government should be a model employer. We
are of the view that on the facts and in the circumstances of this case the classification of
employees into regularly recruited employees and casual employees for the purpose of paying
less than the minimum pay payable to employees in the corresponding regular cadres
particularly in the lowest rungs of the department where the pay scales are the lowest is not
tenable . . . It is true that all these rights cannot be extended simultaneously. But they do
indicate the socialist goal. The degree of achievement in this direction depends upon the
economic resources, willingness of the people to produce and more than all the existence of
industrial peace throughout the country. Of those rights the question of security of work is of
utmost importance‖13.

In Bandhua Mukti Morcha v. Union of India, ―a PIL by an NGO highlighted the deplorable
condition of bonded labourers in a quarry in Haryana, not very far from the Supreme Court.
A host of protective and welfare-oriented labour legislation, including the Bonded Labour
(Abolition) Act and the Minimum Wages Act, were being observed in the breach. In giving
extensive directions to the state government to enable it to discharge its constitutional
obligation towards the bonded labourers, the court said: The right to live with human dignity
enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and
particularly clauses (e) and (f) of Article 39 and Article 41 and 42 and at the least, therefore,

13
(1982) 2 SCC 273, para. 34, p. 294.

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it must include protection of the health and strength of workers, men and women, and of the
tender age of children against abuse, opportunities and facilities for children to develop in a
healthy manner and in conditions of freedom and dignity, educational facilities, just and
humane conditions of work and maternity relief. These are the minimum requirements which
must exist in order to enable a person to live with human dignity and no State has the right to
take any action which will deprive a person of the enjoyment of these basic essentials. Since
the Directive Principles of State Policy contained in clauses (e) and (f) of Article 39, Articles
41 and 42 are not enforceable in a court of law, it may not be possible to compel the State
through the judicial process to make provision by statutory enactment or executive fiat for
ensuring these basic essentials which go to make up a life of human dignity, but where
legislation is already enacted by the State providing these basic requirements to the workmen
and thus investing their right to live with basic human dignity, with concrete reality and
content, the State can certainly be obligated to ensure observance of such legislation, for
inaction on the part of the State in securing implementation of such legislation would amount
to denial of the right to live with human dignity enshrined in Article 21, more so in the
context of Article 256 which provides that the executive power of every State shall be so
exercised as to ensure compliance with the laws made by Parliament and any existing laws
which apply in that State‖ 14

Thus the court converted what seemed a non-justifiable issue into a justifiable one by raising
the broad connotation of t enforceable Article 21. More recently, the court carried out a
analogous exercise when, in the context of articles 21 and 42, it developed legally obligatory
rules to deal with the problems of sexual harassment of women at the work place in Vishaka
v. State of Rajasthan ―The right of workmen to be heard at the stage of winding up of a
company was a contentious issue. In a bench of five judges that heard the case the judges that
constituted the majority that upheld the right were three. The justification for the right was
traced to the newly inserted article 43-A, which asked the state to take suitable steps to secure
participation of workers in management. The court observed: It is therefore idle to contend 32
years after coming into force of the Constitution and particularly after the introduction of
article 43-A in the Constitution that the workers should have no voice in the determination of
the question whether the enterprises should continue to run or be shut down under an order of
the court‖15. Afterwards Supreme court gave wider interpretations to many DPSP‖S
envisaging some essential aspects of life. Those are discussed as under:

RIGHT TO SHELTER
Unlike certain other ESC rights, the right to shelter, which forms part of the right to an
adequate standard of living under article 11 of the ICESCR, finds no corresponding
expression in the DPSP. This right has been seen as forming part of article 21 itself. The
court has gone as far as to say, ―The right to life . . . would take within its sweep the right to
food . . . and a reasonable accommodation to live in.‖ However, given that these observations
were not made in a petition by a homeless person seeking shelter, it is doubtful that this
declaration would be in the nature of a positive right that could be said to be enforceable. On
the other hand, in certain other contexts with regard to housing for the poor, the court has
actually refused to recognize any such absolute right.

14
(1984) 3 SCC 161
15
(1997) 6 SCC 241

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In Olga Tellis v. Bombay Municipal Corporation, ―the court held that the right to life
included the right to livelihood. The petitioners contended that since they would be deprived
of their livelihood if they were evicted from their slum and pavement dwellings, their
eviction would be tantamount to deprivation of their life and hence be unconstitutional. The
court, however, was not prepared to go that far. It denied that contention, saying:
No one has the right to make use of a public property for a private purpose without
requisite authorisation and, therefore, it is erroneous to contend that pavement dwellers
have the right to encroach upon pavements by constructing dwellings thereon . . . If a person
puts up a dwelling on the pavement, whatever may be the economic compulsions behind such
an act, his use of the pavement would become unauthorised‖16.

Later benches of the Supreme Court have followed the Olga Tellis dictum with approval.. In
Sodan Singh’s case ―a constitution bench of the Supreme Court reiterated that the question
whether there can at all be a fundamental right of a citizen to occupy a particular place on the
pavement where he can squat and engage in trade must be answered in the negative. These
cases fail to account for socioeconomic compulsions that give rise to pavement dwelling and
restrict their examination of the problem from a purely statutory point of view rather than the
human rights perspective‖17.

Fortunately, a different note has been struck in a recent decision of the court. In Ahmadabad
Municipal Corporation v. Nawab Khan Gulab Khan, in the context of expulsion of
encroachers in a busy locality of Ahmadabad city, the court said:
―Due to want of facilities and opportunities, the right to residence and settlement is an
illusion to the rural and urban poor. Articles 38, 39 and 46 mandate the State, as its economic
policy, to provide socio-economic justice to minimise inequalities in income and in
opportunities and status. It positively charges the State to distribute its largesse to the weaker
sections of the society envisaged in Article 46 to make socio-economic justice a reality,
meaningful and fruitful so as to make life worth living with dignity of person and equality of
status and to constantly improve excellence. Though no person has a right to encroach and
erect structures or otherwise on footpaths, pavements or public streets or any other place
reserved or earmarked for a public purpose, the State has the constitutional duty to provide
adequate facilities and opportunities by distributing its wealth and resources for settlement of
life and erection of shelter over their heads to make the right to life meaningful‖18.

RIGHT TO HEALTH
The right to health has been possibly the least knotty area for the court in terms of
justifiability, but not in terms of enforceability. Article 47 of DPSP provides for the duty of
the state to improve public health. However, the court has always accepted the right to health
as being an essential part of the right to life; Parmanand Katara v. Union of India ―The
principle got experienced in the case of an agricultural labourer whose position, after a fall
from a running train, deteriorated very much when as many as seven government hospitals in
Calcutta rebuffed to admit him as they did not have beds available. The Supreme Court did
not stop at declaring the right to health to be a fundamental right and at enforcing that right of
the labourer by asking the Government of West Bengal to pay him compensation for the loss

16
(1985) 3 SCC 545
17
(1989) 4 SCC 155
18
(1997) 11 SCC 123

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suffered. It directed the government to formulate a blue print for primary health care with
particular reference to treatment of patients during an emergency.‖19 Then in
State of Punjab v. Ram Lubhaya Bagga. A note of warning was struck when government
employees remonstrated against the lessening of their entitlements to medical care.
The court said:

―No State or country can have unlimited resources to spend on any of its projects. That is
why it only approves its projects to the extent it is feasible. The same holds good for
providing medical facilities to its citizens including its employees. Provision on facilities
cannot be unlimited. It has to be to the extent finances permit. If no scale or rate is fixed then
in case private clinics or hospitals increase their rate to exorbitant scales, the State would be
bound to reimburse the same. The principle of fixation of rate and scale under the new policy
is justified and cannot be held to be violative of article 21 or article 47 of the Constitution‖20.

RIGHT TO EDUCATION
Article 45 of the DPSP, which corresponds to article 13(1) of the ICESCR, states, ―The 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.‖ Thus, while the right of a child not to be engaged in perilous industries was,
by virtue of article 24, known to be a fundamental right, the child‘s right to education was put
into the DPSP in part IV and delayed for a long period of ten years.

The question whether the right to education was a elementary right and enforceable as such
was responded by the Supreme Court in the affirmative in Mohini Jain v. State of
Karnataka21. The correctness of this decision was examined by a larger bench of five judges
in Unnikrishnan J.P. v. State of Andhra Pradesh. ―There was a challenge, by private
medical and engineering colleges, to state legislation regulating the charging of ―capitation‖
fees from students seeking admission. The college management was seeking enforcement of
their right to business. The court expressly denied this claim and proceeded to examine the
nature of the right to education. The court refused to accept the non en-forcibility of the
DPSP. It said:

It is noteworthy that among the several articles in Part IV, only Article 45 speaks of a time-
limit; no other article does. Has it no significance? Is it a mere pious wish, even after 44 years
of the Constitution? Can the State flout the said direction even after 44 years on the ground
that the article merely calls upon it to endeavour to provide the same and on the further
ground that the said article is not enforceable by virtue of the declaration in Article 37. Does
not the passage of 44 years—more than four times the period stipulated in Article 45—
convert the obligation created by the article into an enforceable right? In this context, we feel
constrained to say that allocation of available funds to different sectors of education in India
discloses an inversion of priorities indicated by the Constitution. The Constitution
contemplated a crash programme being undertaken by the State to achieve the goal set out in
Article 45. It is relevant to notice that Article 45 does not speak of the ―limits of its economic
capacity and development‖ as does Article 41, which inter alia speaks of right to education.

19
(1989) 4 SCC 286.
20
(1998) 4 SCC 117, para. 29, p.130
21
(1992) 3 SCC 666

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What has actually happened is more money is spent and more attention is directed to higher
education than to—and at the cost of—primary education. (By primary education, we mean
the education which a normal child receives by the time he completes 14 years of age.)
Neglected more so are the rural sectors, and the weaker sections of the society referred to in
Article 46. We clarify, we are not seeking to lay down the priorities for the Government—we
are only emphasising the constitutional policy as disclosed by Articles 45, 46 and 41. Surely
the wisdom of these constitutional provisions is beyond question.

The court then proceeded to examine how this right would be enforceable and to what extent.
It clarified the issue thus: The right to education further means that a citizen has a right to call
upon the State to provide educational facilities to him within the limits of its economic
capacity and development. By saying so, we are not transferring Article 41 from Part IV to
Part III—we are merely relying upon Article 41 to illustrate the content of the right to
education flowing from Article 21. We cannot believe that any State would say that it need
not provide education to its people even within the limits of its economic capacity and
development. It goes without saying that the limits of economic capacity are, ordinarily
speaking, matters within the subjective satisfaction of the State‖22.

In fact, the court had conked out a new opinion in the affair of justifiability and
enforceability of the DPSP‘S. The decision in Unnikrishnan case has been applied by the
court in devising wide parameters for observance by the government in the matter of
abolition of child labour. This it did in a PIL called as M.C.Mehta v. State of Tamil Nadu
―Now, strictly speaking a strong case exists to invoke the aid of Article 41 of the Constitution
regarding the right to work and to give meaning to what has been provided in Article 47
relating to raising of standard of living of the population, and Articles 39 (e) and (f) as to
non-abuse of tender age of children and giving opportunities and facilities to them to develop
in a healthy manner, for asking the State to see that an adult member of the family, whose
child is in employment in a factory or a mine or in other hazardous work, gets a job
anywhere, in lieu of the child. This would also see the fulfilment of the wish contained in
Article 41 after about half a century of its being in the paramount parchment, like primary
education desired by Article 45, having been given the status of fundamental right by the
decision in Unnikrishnan. We are, however, not asking the State at this stage to ensure
alternative employment in every case covered by Article 24, as Article 41 speaks about right
to work ―within the limits of the economic capacity and development of the State‖. The very
large number of child labour in the aforesaid occupations would require giving of job to a
very large number of adults, if we were to ask the appropriate Government to assure
alternative employment in every case, which would strain the resources of the State, in case it
would not have been able to secure job for an adult in a private sector establishment or, for
that matter, in a public sector organisation. We are not issuing any direction to do so
presently. Instead, we leave the matter to be sorted out by the appropriate Government. In
those cases where it would not be possible to provide job as above mentioned, the appropriate
Government would, as its contribution/grant, deposit in the aforesaid Fund a sum of
Rs.5000/- for each child employed in a factory or mine or in any other hazardous
employment.‖23 The changing approach of the Supreme Court can be very well noticed in
these decisions. The court while deciding the child‘s right to education and prevention of
child labour in hazardous places took a very positive view. It was in these cases where the
Supreme Court interpreted into our Constitution several provisions of International

22
(1993) 1 SCC 645
23
1996 ) 6 SCC 722 para 3

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Covenants. The Judges also considered the importance of DPSP‘S and how the same could
be construed harmoniously together with the Fundamental Rights. As stated in the case of
Unnikrishnan v/s. State of AP ―In order to treat a right as fundamental right, it is not
necessary that it should be expressly stated as one in Part III of the Constitution. The
provisions of Part III and Part IV are supplementary and complementary to each other.‖ That
is why very often the court reads the two together. There is no conflict between the two. It is
wrong to assume that fulfilment of obligations relating to social and economic human rights
would impair fundamental rights. That is why we incorporated Article 31-C (25th
Amendment Act 1971) which says, ―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 or Article 19…..‖ As Glanville
Austin says: ―The core of the commitment to the social revolution lies in Part III and IV in
the Fundamental Rights and in the Directive Principles of State Policy. These are the
conscience of the Constitution.‖24This was followed in Minerva Mills case were in
J.Bhagwati said:―The core of the commitment of the social revolution lies… in the
Fundamental Rights and directive principles of state policy.25‖

The Forty-second Amendment, which came into force in January 1977, tried to upgrade the
status of the Directive Principles by stating that no law implementing any of the Directive
Principles could be stated unconstitutional on the grounds that it infringed any of the
Fundamental Rights. The amendment at once stated that laws barring "antinational activities"
or the formation of "antinational associations" could not be nullified because they violated
any of the Fundamental Rights. It inserted a new section in the constitution on "Fundamental
Duties" that enjoined citizens "to promote harmony and the spirit of common brotherhood
among all the people of India, transcending religious, linguistic and regional or sectional
diversities. Then a very important step was taken when after March 1977 general elections
came to an end & congress lost its control over the executive and legislature for the first time
since independence in and the new Janata-led Parliament tabled the Forty-third Amendment
(1977) and Forty-fourth Amendment (1978). These amendments annulled the Forty-second
Amendment‘s provisions that Directive Principles take preference over Fundamental Rights
and also cramped Parliament's power to legislate against "antinational activities26.

24
(1993)1 SCC 645, para 165
25
AIR 1980 SC 1789 at 1846
26
Constitution of India V.N.Shukla 11th edition 2008 edited by Mahendra p singh pub eastern book Co.p.347

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 CONCLUSION

The constitution framers inserted Directive principles in the constitution so that the state
should take endeavour towards making a welfare state. Though there has been a considerable
improvement in understanding the importance of DPDSP‘s but still there is a long way to go
and it is the duty of judiciary to understand the essence of these principles and interpret them
in such a way so as to make them at par with Fundamental rights. Though DPSP‘S cannot be
claimed as a matter of right but state is under an obligation to provide its citizens with all
those facilities like education, a descent livelihood, health, shelter and many other things
which are essential to live a good life and all these issues are undoubtedly dealt in DPSP‘S
and the only thing to be done is to realize their essence and implement them in a proper
manner so as to achieve the goal of a welfare state and it calls for the efforts of all the three
wings i.e. Parliament, Executive and Judiciary .All the three have to work together and
transparently to promote the aim of constitution framers lying in DPSP‘S .Especially the
Judiciary has to give a harmonious construction while deciding a case involving both
fundamental rights and DPSP‘S so that the spirit of both is maintained and one is not
overridden by other as was done in a very celebrated case of Kesavananda bharti v.State of
kerala wherein the court held that: ―There are rights which are inherent in humans because
they are human beings. As the preamble says, it was to secure the basic human rights like
equality and liberty that the people gave unto themselves the constitution which also aims at
securing justice political, social and Economic. Hence the moral rights embodied in Part
fourth of the constitution are equally essential, the only difference being that cannot be
enforced in a court of law, but nevertheless they are essential for the proper governance of the
country and all the organs including the Judiciary are bound to enforce DPSP‘S‖27.

27
(1973) 4 SCC 225.

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 BIBLIOGRAPHY

LIST OF SOURCES CONSULTED

Books referred:

 Constitutional of India V.N Shulka 11th edition published by Eastern book company,

2008.

 All India Reporters

 Supreme court cases

Internet sources:

 Google search engine http: www.google.com.au

 http/www.indiaetzone.com

 www.wikipedia.org.

 http/www.legalservicesindia.com

 www.nios.ac.in

 www.civilservice.com

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