Directive principles of State Policy

DIRECTIVE PRINCIPLE OF STATE POLICY 

(Article 36-51)

The Directive Principles are contained in part IV of the constitution set out the aims and objectives to be taken up by the states in the governance of the country. Directive principles of sate policy is borrowed from the constitution of Ireland which had copied it from the Spanish constitution.

The concept behind DPSP is to create a welfare state. The idea of welfare state envisaged by our constitution can only be achieved if the States endeavour to implement them with a high sense of moral duty.

Underlying object behind the Directive Principles 

The Directive principles are the ideals which the Union and State Government must keep in mind while they formulate policy or pass a law. Directive principles lay down certain social, economic and political principles, suitable to peculiar conditions prevailing in India.In the words of G.N joshi "they constitute a very comprehensive political, social and economic programme for a modern democratic State. 

Article - 36

Article 36 defines state in part IV of the DPSP. It has same meaning as in part-III of the Indian constitution which covers Fundamental Rights.

The definition covered in Article 12 Shall apply in this part as well which says that State includes.

1. The Government and parliament of India, i.e., Executive and Legislature of the Union.


2. The Government and the legislature of each State, i.e., Executive and Legislature of States.


3. All local and other authorities within the territory of India.


4. All local and other authorities under the control of the Government of India.

The term "State" thus includes executive as well as the legislative organs of the Union and States. It is therefore,  the actions of these bodies that can be challenged before the court as violating fundamental rights.

Article - 37

Article 37 of DPSP are non-justiciable. Non-justiciable rights are those rights which cannot be legally enforced in courts for their violation. 

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

Article 38 and 39 embody Distributive Justice

Social and Economic Charter 

Articles 38 and 39 embody Distributive Justice - Article 38 and 39 embody the jurisprudential doctrine of "distributive justice" The concept of distributive justice in the sphere of law-making connote, inter-alia (among other things), the removal of economic inequalities rectifying the injustice resulting from dealings and transactions between unequals in society. 

1)Social order based on justice

Article 38(1) provides that the state shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice - social, economic and political - shall inform all the institutions of national life.

The Constitution(44th amendment) act, 1978 inserted clause(2) in Article 38.The new clause aims at equality in all spheres of life.

Social order 

The term "social order" includes 'law and order','public order' as well as 'security of the state'. The social order has a direct nexus with the preamble of the constitution which secures justice, social, economic and political to the people.

It is the duty of State and its organs to preserve public peace, public safety, and the pubic order. To ensure social security to the citizens of India, the state is not merely under a legal duty but there is a constitutional mandate.

2)Principles of Policy to be followed by the state for securing economic justice:

Article 39 

Article 39 requires state to direct its policy towards securing the following justice:-

(a)Equal right of men and women to adequate means of livelihood.

(b)Distribution of ownership and control of the material resources of the community to the common good.

(c)To ensure that the the economic system should not result in concentration of wealth and means of production to the common detriment.

(d)Equal pay for equal work for both men and women.

(e)To protect health and strength of workers and tender age of children and to ensure that they are not forced by economic necessity to enter avocations unsuited to their wage or strength.

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

Material Resources 

The expression 'material resources of the community' under Art.39(b) covers the land held by private owners also. Such private land can be acquired by Government for public purposes such as for developing, constructing house building and providing public amenities like shopping complexes, parks, road, drains, playgrounds etc.

Public Interest Litigation v. Union of India

In Centre for public Interest Litigation v. Union of India, it has been held by the supreme court that the spectrum has been internationally accepted as a scarce, finite and renewable resources which is susceptible to degradation in case of insufficient utilisation. Although it does not belong to a particular State, right of use has been granted to States as per international norms.State is the legal owner of the natural resources as a trustee of the people. although the State is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good.

Tamil Nadu v  Abu Kavar Bai

In state of Tamil Nadu v  Abu Kavar Bai, the Court upheld the validity of a law enacted for the nationalisation of transport services in the State on the ground that it was for giving effect to the directive principles contained in Article 39(b) and (c). A nationalisation scheme meant for the purpose of distribution or preventing concentration of wealth; as in the instant case, must have sufficient nexus to attract the operation of Article 39(b) and (c). The Tamil Nadu Act is valid as it subserves nationalisation policy.

Kachchh Jal Sankat Nivaran Samiti v. State of Gujarat

In Kachchh Jal Sankat Nivaran Samiti v. State of Gujarat, in a PIL due to meagre allocation of water from Sardar Sarovar Project to the District of Kutch, the Supreme Court dismissed the appeal against dismissal of writ by the high court of Gujarat and held that the distribution of water was a policy matter. The Court shall step only when it finds that the policy is inconsistent with constitutional laws or arbitrary or irrational. It cannot term a particular policy as fairer than the other. Such matters must be left to the decision of those who are entrusted and qualified to address the same. If the policy of the Government in the opinion of the sovereign is unreasonable, the remedy is to disapprove the same during election. Regarding the complaint that the state Government did not take into account the policy underlying Article 39(b), the court held that the distribution of material resources is to be effected in the manner to sub-serve the common good which has not to be confined to Kutch district only but to the other regions of the States also. The complaint regarding non-adherence to the mandate of Article 38(2) was also held to be misconceived. this State is to strive to minimize the inequalities in status , facilities and opportunities not only amongst individual but also amongst groups of people residing in different parts or engaged in different vocations. This does not mean that for achieving that the State Government has to apply it on the basis of the number of the people residing in different parts only. Other factors just cannot be forgotten. 

There being no judicially manageable standards for allocation of water, any interference by the Court would mean interference with day-to-day functioning of the State Government. In view of separation of powers, the Court cannot charter the said path.

Spectrum belongs to the people 

Spectrum is a natural resource that belongs to the people. The State and its instrumentalities are licensee, as the case may be, who deal with the same, who hold it on behalf of the people and are accountable to the people.

Equal pay for equal work 

Pursuant to article 39(d), parliament has enacted the Equal Remuneration Act, 1976. The directive contained in Article 39(d)  and the Act passed thereto can be judicially enforceable bu the court. In Randhir Singh v. union of India, the Supreme Court has held that the principle of "Equal pay for equal work though not a fundamental right" is certainly a constitutional goal and, therefore, capable of enforcement through constitutional remedies under Article 32 of the Constitution. the doctrine of equal pay and equal work is equally applicable to persons employed on a daily wage basis. They are also entitled to same wages as other permanent employees in the department employed to do the identical work. 

Employment of children 

Clause(f) was modified by the constitution (42nd Amendment) Act, 1976 with a view to emphasise the constructive role of the State with regard to children. 

In M.C. Mehta v. State of Tamil Nadu it has been held that in view of Art. 39 the employment of children within the match factories directly connected with the manufacturing process of matches and fireworks cannot be allowed as it is hazardous.

Children can, however, be employed in packing but it should be done in area away from the place of manufacturing to avoid exposure to accidents.

Article 40 : Organisation of village Panchayats

Article 40 directs the State to take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. The object of this provision is to introduce democracy at the grass roots. These panchayats are expected to be the training grounds for the development of democratic traditions. 

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

Article 41 directs the state to ensure the people within the limit of its economic capacity and development : (a) employment (b) education, and (c) public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want.

Article 42 : Just and human conditions of work

Article 42 directs the state to make provision for securing just human conditions and for maternity relief.

Article 43 : Living wage for workers

Article 43 requires the State to try to secure by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, a living wage, conditions of work ensuring a decent standard of  life and full enjoyment of leisure and social and cultural opportunities, and in particular, the State shall endeavour to promote cottage industries on an individual or co-operation basis in rural areas.

Article 43 refers "living wage" not "Minimum wage"

 

The concept of living wage includes in addition to the bare necessities of life, such as food, shelter and clothing, provisions for education of children and insurance etc. 

Article 43A :  Partition of workers in management of industries 

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

Article 43B : Promotion of Co-operative Societies 

By the Constitution (97th Amendment) Act 2011, Article 43B has been inserted which provides.The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of Co-operative Societies.

Article 44: Uniform Civil Code 

Article 44 requires the State to secure for the citizens a Uniform Civil Code throughout the territory of India.

Sarla Mudgal v. union of India

In Sarla Mudgal v. union of India, the question was weather a Hindu husband, married under the Hindu law, by embracing Islam can solemnize the second marriage. The Supreme court held that adopting Islam for a second marriage is an abuse of Personal laws. Further said that Hindu marriage can be dissolved under Hindu Marriage Act, 1955 i.e. mere by converting itself into Islam and marry again does not dissolve the marriage under Hindu Marriage law and thus will be an offence under Section 494 of the Indian Penal code. 

Pragati Varghese v. Cyril George Varghese

In Pragati Varghese v. Cyril George Varghese, the Full Bench of the Bombay High Court has struck down Section 10 of the Indian Divorce Act under which a Christian wife had to prove adultery along with cruelty or desertion while seeking a divorce on the ground that it violates the fundamental right of a Christian women to live with human dignity under Art. 21 of Indian Constitution. The Court also declared  Sections 17 and 20 of the Act invalid which provided that an annulment or divorce passed by a District Court was required to be confirmed by a 3 Judges Bench of the High Court. The Court said that Section 10 of the Act compels the wife to continue to live with a man who has deserted her or treated her with cruelty. Such a life is sub-human. There is denial to dissolve the marriage when the marriage has broken down irretrievably.

Noor Saba Khatoon v. Mohd. Quasim

In Noor Saba Khatoon v. Mohd. Quasim the SC held - A divorced Muslim women is entitled to claim maintenance for children till they become major. Both under the Muslim personal law and under Section 125 of the Criminal Procedure Code, 1973 the obligation of the father is absolute when the children are living with the divorced wife.

The Court made it clear that this right was not restricted, affected or controlled by divorced wife's right to claim maintenance for two years from the date of birth of the children under Section 3(1)(B) of the Muslim Women (Protection of Rights and Divorce) Act, 1986.

All marriages must be registered

All marriages must be registered : First step towards Uniform Civil Code - In Seema v. Ashwani Kumar, The SC has held that all marriages, irrespective of their religion, be compulsorily registered. Moved by the plight of women fighting for their rights under marriage like maintenance and custody of their children, a two judge bench of the SC directed the Centre and State Government to amend the law or frame rules and notify them within three months. The Court directed government to provide for "consequences of non-registration of marriages" in the rules which should be formalised after inviting public response and considering them. The Court said the rules so framed would continue to operate till the respective govts framed proper legislation for the compulsory registration of marriages. Giving no room for appeasement or dilution of the objective to be achieved through such legislations, justice Pasayat said all new laws to be framed by the Governments have to be placed for scrutiny before the Supreme Court. The Court felt that this ruling was necessitated by the need of time as certain unscrupulous husbands deny marriages leaving the spouses in the lurch, be it for seeking maintenance, custody of children or inheritance of property. the ruling of the Court will itself facilitate the object of having a common civil code as most the problems relating to it are due to the non-registration of marriages. The benefits of this ruling are as follows: -

It will - 

• prevent child marriage;
• check bigamy and polygamy;
• help women to exercise their rights under marriage - maintenance- custody of children;
• enable widows to claim inheritance; and
• deter husbands from deserting their wived.

Article 45

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.

Difference between Article 21a and Article 45

Article 21a is a guaranteed as fundamental right but Article 45 is directive principle of state policy. Article 21 provides that the State shall provide free and compulsory education to children between 6-14 years of age.

Article 46

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 injustice and all forms of exploitation.

Article 47

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 : Organisation of agriculture and animal husbandry

Article 48 directs the State to take steps to organise agriculture and animal husbandry on modern and scientific lines. in particular, it should take steps for preserving and improving the breeds, and prohibition the slaughter of cows and calves and other milch and draught cattle. 

Protection and improvement of forests and wild life - Article 48-A

requires the state to take steps to protect and improve the environment and to safeguard the forests and wild life of the country. In M.C. Mehta(II) v. Union of India, the Supreme Court, relying on Artcle 48-A gave directions to the Central and the State Governments and various local bodies and Boards under the various statutes to take appropriate steps for the prevention and control of pollution of water.

Arjun Gopal v. Union of india

In Arjun Gopal v. Union of india, the Supreme Court as an interim relief directed the Central Government in Public interest to suspend all licenses which permit sale of fire-works in the N.C.R. which would remain in force till further orders of the Court as the use of fireworks in N.C.R. was major source of air and noise pollution. It held that the duty to ensure healthy environment not only was of the State Government but also of the Central Government.

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

Article 49 requires 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 spoilation, disfigurement, destruction, removal, disposal or export. Pursuant to this, Parliament has enacted the Ancient and Historical Monuments and Archaeological Sites and Remain (Declaration of national Importance) Act, 1951.

Article 50 : Separation of Judiciary from Executive

Article 50 requires the State to take step to separate the Judiciary from the Executive in the public services of the State. To promote the rule of law, this is very essential.

Article 51 : Promotion of International peace and security

Article 51 provides that the State should strive to (a) Promote international peace and security; (b) Maintain just and honourable relations between nations; (c) Foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and (d) Encourage settlement of international disputes by arbitration. 

The Protection of Human Rights Act, 1993  

Pursuant to the Direction enshrined in Article 51 of the Constitution and International Commitments, parliament has passed the Protection of Human Rights Act, 1993. The Act provides for the setting of a 'National Human Rights Commission and Human Rights Courts to meet the growing concern for human rights in the country and abroad. Similar Commission may be set up in the State also. It would not be mandatory for the state Governments to constitute State Human Rights Commission. The National Human Rights Commission has started functioning since Sep, 1993 when the Ordinance was promulgated by the President. The provisions of the Act will be applicable to the Armed Forces and the State of Jammu and Kashmir.' However the action taken against the personnel of the Armed Forces for violation of Human Rights will not be made public as it will affect their morale in dealing with anti-social elements. The legislation would, the Home Minister said in the parliament, thwart the designs of some countries that sought to malign India in the United Nations and other international forums.

The Human rights commission will have powers to go into instances of negligence on the part of public service personnel in preventing violations.

The Commission will, if necessary, publish interim reports along with the action taken by the Government which will be presented in the Parliament.