mod09lec18 - Directive Principles of State Policy

Summary

Highlights

• Directive Principles are crucial for India's social reform and modernization agenda, aiming to reduce inequalities. 🌐
• Despite their non-justiciable nature, these principles are fundamental in governance and legislative actions. 🏛️
• They provide a unique framework, drawing from various historical and constitutional experiments. 🕰️
• Key debates exist around their enforcement and relation to fundamental rights, particularly in court cases. ⚖️
• The tension between judicial enforceability and legislative responsibility is a central theme. 🔍
• Understanding these principles provides insight into India's constitutional evolution and challenges. 📚

Key Takeaways

• The Directive Principles aim for India's social and economic transformation. 🚀
• These principles are not enforceable by courts, intending to guide legislative and executive actions. 🏛️
• Historical antecedents inspired the Directive Principles, highlighting a unique constitutional framework. 📜
• There's a continual balance and debate between fundamental rights and directive principles. ⚖️
• The role of courts versus political branches remains a core discussion point in implementing these principles. 🤔
• Understanding these principles is crucial for grasping Indian constitutional and political history. 🇮🇳

Overview

Chapters

• 00:00 - 00:30: Introduction to Directive Principles of State Policy The chapter titled 'Introduction to Directive Principles of State Policy' focuses on a part of the constitution, specifically chapter 4. This chapter is an integral component of constitutional studies, discussed during week nine of the course.
• 00:30 - 02:30: Historical Background and Evolution The chapter titled 'Historical Background and Evolution' discusses the complexities and historical significance of the Indian constitution. It highlights the challenges faced by various stakeholders such as courts, parliaments, law students, and lawyers in interpreting the constitution. Additionally, it emphasizes the transformative role of the constitution in India's evolution from a poor developing nation to a modern independent country.
• 02:30 - 06:00: Theoretical Distinctions and Content of the Directive Principles The chapter titled 'Theoretical Distinctions and Content of the Directive Principles' addresses the broad agenda for social transformation as captured in part four of the constitution. It specifically highlights issues such as economic and social inequality, and the importance of embracing scientific enquiry. Despite its significant agenda, this part of the constitution has often been overlooked in terms of intellectual and legal attention.
• 06:00 - 10:00: The Role of Courts and Legislative Balance This chapter explores the historical context and significant debates surrounding the role of courts and the balance of legislative power, focusing on the period before and shortly after the adoption of the constitution. It introduces the historical antecedents to the directive principles of state policy, discussing its origins and influences from other constitutions.
• 10:00 - 15:30: Constitutional Amendments and Legal Debates The chapter discusses the historical context and significance of constitutional amendments within Indian political history, particularly during the freedom movement. It explores the placement and role of directive principles in part four of the Indian Constitution. Moreover, the chapter delves into the debate on whether these principles should be interpreted as legal or political, and the practical implications of each perspective.
• 15:30 - 20:00: Contemporary Implications and Conclusions The chapter explores the evolution of certain constitutional principles from being relatively obscure in the 1950s to becoming central by the turn of the century. It discusses the historical background and suggests that these principles will continue to be significant in the future. The author sets the stage by examining the early historical roots of the director principles chapter.

mod09lec18 - Directive Principles of State Policy Transcription

• 00:00 - 00:30 [Music] hey there welcome back to constitutional studies week nine this week we focus on part of the constitution a distinct chapter called the directive principles of state policy this chapter chapter 4 of the
• 00:30 - 01:00 constitution is one that has generated a fair degree of confusion for the courts for parliaments for law students and lawyers alike it's a novel and interesting part of the constitution that carries a significant historical burden the burden of the transformation of india from a poor developing country into a modern uh country free from
• 01:00 - 01:30 the ravages of economic inequality and social inequality and ready to embrace the world in the spirit of scientific enquiry so it's quite a broad agenda for social transformation which is captured in part four of the constitution but one that has received very little attention intellectual attention and legal attention over the years in this lecture i will take you introduce you to to this part of the constitution and
• 01:30 - 02:00 take you through some of the main debates that occurred both prior to the constitution and soon after the constitution's adoption leading up to the turn of the century the broad outline of this lecture will be to first introduce some historical antecedents to the director principles of state policy its novelty doesn't mean that it is invented out of thin air similar experiments existed in a couple of constitutions and uh
• 02:00 - 02:30 had been been spoken about in indian political history freedom movement we then trace how this um the director principles came to be placed in part four of the constitution and then inquire whether these principles are best thought of as legal or as political principles and what would that mean in practical terms finally we close within a with a
• 02:30 - 03:00 with a short take on the evolution of these principles from relative backwaters of the constitution in the 50s to emerging quite center stage at the turn of the century and is likely to be very important in the decades to come so let me get started with by tracing some of the early historical antecedents to the director principles chapter now
• 03:00 - 03:30 the support committee of 1945 we have done this we've done this kind of historical tracing through much of this course and i think by now you're familiar with this method um it's very important for us to understand this background history or else we we end up with rather truncated or minimal understanding of the constitutional provisions as they are the support committee of 1945 was the first indian document to engage with the issue of dividing rights
• 03:30 - 04:00 into justiciable and non-justice categories now you remember in the last session that we discussed the karachi resolution which had already embraced a wide degree of social and economic rights as being part of the purna swaraj declaration that um that india should be committed to gandhi's plan of action to make the freedom movement appeal to the wide masses
• 04:00 - 04:30 of this country article 5 of the karachi resolution spoke in terms of the protection of women workers and making adequate provisions for leave during maternity and so on and so forth even earlier prior to the karachi resolution the nehru report of 1928 had already anticipated that all citizens in the commonwealth of india shall have the right to free elementary education
• 04:30 - 05:00 and that that a suitable adjustment of time may be given for the enforcement of this right so that adequate resources could be made available it was this kind of tension between granting wide social rights you know rights to social welfare goods to be provided by the by the state um to citizens at large and the lack of adequate resources that seems to animate the supplu committee report in 1945.
• 05:00 - 05:30 the sapro-committee report was the first to divide up these kinds of commitments commitments to liberty and equality and fraternity on the one hand and commitments to social and economic rights on the other into justiciable and non-justiciable categories let me spend a minute to explain this justiciability means is it amenable to a court's jurisdiction can a court of law consider these rights
• 05:30 - 06:00 and interpret and implement them the sapro committee was the first to hint that maybe some of these social and economic rights should be put into a bucket where they were not enforceable by the courts so the future drafters of the indian constitution in the constitute assembly picked up on these on these concerns
• 06:00 - 06:30 tt krishnamachary was one who was quite skeptical of the move to to treat part four of the constitution as being non-enforceable by courts he suggests and i read in view of the fact that quite a number of new items have crept into this part which might be called a veritable dust bin of sentiment i see no objection actually to this or any other amendment coming in
• 06:30 - 07:00 because this dustbin seems to be sufficiently resilient as to permit any individual of this house to ride his hobby horse into it you can tell from tt krishnamachari's acerbic tone that he was no fan of the design this the design of part four of the constitution nor was he a fan of the content the principles that went into part for the constitution ambedkar though took a slightly
• 07:00 - 07:30 different view he suggested that unlike uh krishnamachali it was not his intention to introduce it into this part principles as mere pious declarations they should be made the basis of an of all executive and legislative action that may be taken hereafter in the matter of governance of the country so ambika took the view that committing principles to legislative and executive
• 07:30 - 08:00 action was not simply a pious declaration it was just a it was just a division of labor between the various organs of government while the judiciary might have primacy with respect to the enforcement of fundamental rights the legislature and the executive will have primacy with respect to the implementation of the direct principles now the directive principles are a wide chapter of principles and to the extent that
• 08:00 - 08:30 krishnamachary is skeptical about whether something holds them together he may well be right but having said that let's see what we ended up with we ended up with the chapter part 4 of the constitution which runs from article 37 to article 51. but there are different kinds of principles in the chapter first one notices that there are um
• 08:30 - 09:00 that there are principles that could best be described as socio-economic principles equal pay for equal equal work humane conditions of work living wage all related to to labor questions of labor there were principles on which a common agreement could not could not be found and those principles were deferred in the constitutional making exercise left to a future legislature
• 09:00 - 09:30 or future executive to decide the uniform civil code alcohol consumption and cow slaughter seem to be topics that could not be settled by the constituent assembly as they were and had simply been deferred a third set of principles in part four of the constitution appear to be those principles that are that are broad principles that apply uh to various fields ranging from historical monuments
• 09:30 - 10:00 to a principle of the separation of powers and one promoting international peace but we can't go too far while discussing uh part four of the constitution without talking about the key the two key principles in part four of the constitution the first of these is article 37. so we will come back to 37 discussions at a later point when this when going over
• 10:00 - 10:30 early discussions on on enforceability but let me say this much the provisions contained in this part 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 now this core principle 37 you can call it the gateway article to part 4 of the constitution makes two of things two or three
• 10:30 - 11:00 elements clear not enforceable by court nevertheless fundamental in the governance of the country a legislative and executive duty to implement these principles to apply these principles this was the structure of 37 but equally important are the two key provisions of article 38 and 39 which set out two broad principles
• 11:00 - 11:30 first the principle that the state must act in a manner that promotes the welfare of the people at large and second that the state must act in a manner that minimizes equalities and inequalities in income and inequalities and status facilities and opportunities 39 goes even further it assures that everyone should have a common [Music]
• 11:30 - 12:00 right to an adequate means of livelihood that's article 39a and it follows up with rather strong principles against monopolies uh by by suggesting that the ownership and control of the material resources of the community are so distributed as to subserve the common good it also seems to put in place a principle of competition that the operation of the economic system does not result in the concentration of wealth
• 12:00 - 12:30 and the means of production to the common detriment these kinds of principles principles of economic and political design are not commonplace in constitutions while the constitution of ireland does provide for some broad socio-economic rights for the guidance of the legislature it it is not anywhere close to being as broad or substantive as the indian
• 12:30 - 13:00 provisions ghana and nigeria have followed india in part by adopting a mix between enforceable and um non-enforceable fundamental rights but once again these jurisdictions um are don't have the same weight the width and breadth as the indian constitution so let me stop with the overview here
• 13:00 - 13:30 some broad principles in part four of the constitution and what we are trying to do in the next stage is to move on and understand what is this distinction between enforceability uh between fundamental rights and directed principles if one turns to article 13 clause 2 in article 37 and maybe we should read article 32 of the constitution as well we understand that while
• 13:30 - 14:00 fundamental rights are phrased in negative terms which is that the state shall not make any law which takes away or abridges the rights conferred by this part in in directive principles the state has a positive obligation the state shall apply these principles in making laws and these principles are fundamental in the governance of the country conversely while in fundamental rights
• 14:00 - 14:30 the in article 32 the the the supreme court and the high courts in article 226 are empowered to to enforce these rights to the detriment of to strike down state and executive action in the in article 37 it makes it very clear that the provisions of this part shall not be enforceable by any
• 14:30 - 15:00 court let's add this together fundamental rights state cannot take away or a bridge directive principles state shall apply these principles in making laws fundamental rights the court shall enforce fundamental rights and strike down state action directive principles the court shall not enforce these these principles it's left to the legislature so you notice as a matter of institutional design that
• 15:00 - 15:30 part three and part four of the constitution adopt at least as an institutional matter complementary approaches while one endows the state with power the other takes away state power while one endows the court with the power to enforce the other word the other directive principles takes away the power of the court to enforce a second restriction
• 15:30 - 16:00 is important here and that distinction is a distinction between enforceability and justice in an earlier slide we used the language of justiciability while talking about the historical antecedents to part for the constitution but the constitution chose to only make make laws i mean directive principles not enforceable by the courts but they may be justiciable by the courts what
• 16:00 - 16:30 what may be what made the distinction be i'm going to suggest to you that the distinction is simply one between primary enforceability of the primary role of the court to enforce these provisions with as distinguished form the secondary ability of the court to take into account to take cognizance of the principles in interpretation in other ways but not directly enforce them so the gap
• 16:30 - 17:00 between enforceability and this disability allows courts to have a secondary role but not a primary role so so much for the distinction between direct principles and fundamental rights and what you will notice is that this approach to directed principles uh that i've tried to sketch out for you so far is not one that is commonly found in in the literature the academic literature or in the commentaries in this field
• 17:00 - 17:30 and hence i i recommend to you that we might do well to to uh illustrate it a little bit more before we look at how the indian courts have uh have applied these these this area of the constitution to summarize what we've suggested is that the political constitution which is implemented by the political branches of the government
• 17:30 - 18:00 through actions of legislation executive action and budgetary spending is what the director principles is where the director principles belong the legal constitution that is the constitution as rules of law allow the courts to undertake a secondary implementation of the directive principles as an interpreter tool to fill in gaps in shape
• 18:00 - 18:30 constitutional interpretation to enforce action taken by political branches to nudge political branches to act this was how the constitution was designed and part four of the constitution gave a clear emphasis to the political branches of government and de-emphasized legal implementation um but through the course um however this division
• 18:30 - 19:00 in um legislative executive and judicial role was not one that was well understood either in the 1950s or for that matter as we turn the century in in the first two decades 21st so let's get started and look at how the courts and other institutions have approached this field in the earliest cases and the earliest
• 19:00 - 19:30 case was a case called state in madras versus 1950 one of the earliest cases before the supreme court itself and the question before the court was whether affirmative action reservation quotas for non-brahmin communities in the state of tamil nadu was constitutionally valid now there was a provision in the directive principles which suggested that these kinds of affirmative action
• 19:30 - 20:00 programs was necessary to reduce the inequalities between social groups however the constitution also prohibited in article 15 discrimination on the basis of caste the court took the view that a quota for non-brahmin populations that effectively on the basis of caste a quota that identified communities based on
• 20:00 - 20:30 caste and and gave them a special ability to enter medical and engineering schools was unconstitutional because it violated the fundamental rights in article 15 1 and article 29 2 but the directive principles of state policy which mandated that the state must do such things the court suggested was unenforceable and hence not relevant to the discussion in the case
• 20:30 - 21:00 this was the first case where the court established the priority or the relative importance of fundamental rights over directive principles a debate that has come to dog the indian debate ever since in mohammed qureshi in 1959 the the court took a slightly moderate tone um it it dealt with the case uh it dealt with the law made by the state of bihar
• 21:00 - 21:30 with respect to the to to butchers uh who who made a living out of the slaughter of cows um and the court took the view that directive principles that required um you know uh some action against cow slaughter or you know and in line with animal husbandry uh should should only be implemented in a manner that was consistent with fundamental rights once again the court suggests that
• 21:30 - 22:00 fundamental rights i have priority over the directive principles but does not does not undermine them in in full in similar cases in chandra bhavan and so on the court had started to moderate this a question of the relationship between fundamental rights and directed principles but by that time much damage had been done in the field of land reform
• 22:00 - 22:30 what what had occurred in that period from 1950 to 1970 was that several land reform laws had been struck down on the grounds that they violated the right to property this in the early years led to the to the amendment of the right to property its removal and replacement as a constitutional however the courts were not done yet in subsequent cases they still struck down
• 22:30 - 23:00 various land reform and tendency to form legislation on the grounds that they paid inadequate compensation or they did not follow due process in the ways in which they eliminated property rights in the 25th amendment act the constitution 25th amendment act of 1971 a new provision was introduced into the constitution article 31c article 31c took the view that as so long as you were implementing article 39
• 23:00 - 23:30 b and c uh there could be no challenge of to a law on the grounds that it violated 14 19 or 31. now remember 39 b and c are the provisions that say the ownership and control of the material resources of the community are so distributed as best to subserve the common good and c says that the operation of the economic system does not result in the in the concentration of wealth and means a
• 23:30 - 24:00 production to the common detriment you can imagine that the purpose of article 31c was primarily to protect land reform legislation and at a later date protect nationalization statutes which were which were used to push india towards more socialist mixed economy this 25th amendment sparked one of the longest and arguably most significant
• 24:00 - 24:30 constitutional battles that relate to uh that related to land reform laws and this was kesley was sustained kerala it was the first case in 1973 where the supreme court said that while parliament had the power to amend the constitution it could not amend the constitution in ways that altered its basic features as far as article 31c was concerned a majority of the courts took the view
• 24:30 - 25:00 that a harmonious balance could be maintained between fundamental rights and direct principles and was willing to uphold this provision now you must remember that this this argument for a harmonious balance is a long way from champakam to ray rajan and the early cases so between the period 1950 and 1973 the court has effectively changed its mind um and and and um and
• 25:00 - 25:30 and put in place uh a more balanced account of the relationship between part three and part four of the constitution nevertheless the 42nd amendment act was was enacted in 1976 it widened article 31c to include all direct principles of state policy effectively giving directive principles of state policy a status superior to the fundamental rights in
• 25:30 - 26:00 the constitution not surprisingly article 31c was challenged in minerva mills and and minerva mills took the view that as harmonious balance was a harmonious balance between fundamental rights and directive principles was a basic feature of the constitution the constitution could not be amended in a manner that gave primacy to the to directive principles or fundamental
• 26:00 - 26:30 rights in this manner the court moderated its position on the hierarchy but also tempered the push by parliament to elevate the direct principles over fundamental rights this subsequent position minerva mill's position on the harmonious relationship is now part of the basic structure doctrine and cannot be amended after 1980
• 26:30 - 27:00 there has been a wave of public interest litigation and other litigation enforcing directive principles as fundamental rights and the court has been very willing to get into this into these cases and allow our directive principles to be effectively read into part three of the constitution these include the directive principles that relate to education environment and free legal aid we have
• 27:00 - 27:30 discussed some of these cases earlier in this course but the court now was effectively interpreting part three to include the core elements of part four in the constitution 86th amendment act you see that parliament and the executive has jumped into the act and has begun to incorporate some principles that that are found in part four of the constitution in the case of compulsory education
• 27:30 - 28:00 article 45 as a new fundamental right under article 21 a this fusion between part 3 and part 4 of the constitution may seem like some radical new push and you know transforming um our social and legal sphere but it's not quite what it seems uh while the legal form of part four of the constitution and part three of the constitution is changing uh the capacity of the state
• 28:00 - 28:30 to deliver these promises is not quite there yet and hence uh the um the early debates as you can as you remain familiar with in the constitute assembly still remain we can make pious declarations and if we don't have the ability to implement and enforce them then just by merely calling them rights we don't achieve very much we also run the risk as we do in sham
• 28:30 - 29:00 narayan chokshi versus union of india that uh that a court made might decide that um that in order to to cultivate a spirit of nationalism or patriotism that the national anthem should be played in cinemas and it may do so based on the directed principles as well as fundamental duties in either case uh the the enforcement of directed
• 29:00 - 29:30 principles by the courts appears to be i mean a constitution framers seem to have chosen well to keep directed principles out of court enforcement and to leave it to future legislatures to make these changes these uh this gets us up to the the early part of the 21st century we're now at the end of the second decade of the 21st century and we see that while there is a resurgence of
• 29:30 - 30:00 emphasis on directed principles the core confusions that existed and the early part of of uh of a part four implementation in the 1950s remain uh while we are while we are we still remain unsure about the precise role of the court and the and the precise role of the legislature and the executive and these questions remain with us even
• 30:00 - 30:30 at the end at the point at which we are so to conclude let me say the following part four of the constitution represents a unique and noble instrument in the indian constitution by which i mean much unlike most other constitutions it's not like the constitution of the united states for that matter countries in europe have such a part
• 30:30 - 31:00 four model second the director principles were placed in part four of the constitution to really capture the transformative goal of the constitution you you must remember that we we noticed when we read the preamble that the indian constitution was not historically subconscious it didn't talk about colonialism the ravages of caste the ravages of communalism and so on but part four of
• 31:00 - 31:30 the constitution embraces that background history and prescribes some key principles as being the foundational principles of governance in india second part four of the constitution director principles seems to embrace a model of political constitutionalism as opposed to legal constitutionalism by which by this we mean that political
• 31:30 - 32:00 institutions are far more important for the mobilization of these principles than courts um it is um at least commonplace to say that that somehow social transformation in india has been engineered or propped up by the courts in the in as as being the real vanguard among the institutions of state this short history that i've covered for you today
• 32:00 - 32:30 should make it very clear that when the the political branches of government the executive and legislature were strongly pushing for the implementation of land reform laws as well as other laws of social transformation like affirmative action laws it was the court that struck down these laws and forced a very strong institutional conflict that in willy-nilly led up to the
• 32:30 - 33:00 emergency and uh almost constitutional breakdown in the 1970s so i've given you a very early hint of why the direct the story of the directive principles of state policy is critical to an understanding of indian constitutional and political history as well as indian constitutionalism in general for the purposes of an introductory lecture like this i can't deal with these questions in any
• 33:00 - 33:30 greater detail so i will stop here but i hope i've provoked enough interest among you to to look at the directed principles with care and to imagine what is the kind of political society that the implementation of director principles is aimed to achieve so let me stop that thank you we will come back for the last lecture of this course in a couple of days
• 33:30 - 34:00 thanks bye