Constitution as a social document

“The first task of this Assembly is to free India through a new constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.” (Jawaharlal Nehru, Constituent Assembly debates, Vol II)

When India began its tryst with destiny after independence, majority of the population was living in abject poverty-an outcome of colonial rule-while social structure was also medieval and fraught with inequalities. The task of making a new constitution for the country was therefore seen as an opportunity to build a new nation on modern lines where individuals can have a dignified existence. In that stupendous task, constitution envisages India as a welfare state where greatest good of greatest number of citizens are ensured. Indian constitution is thus a social document that aims to bring changes in society.

Though Indian constitution is first and foremost a social document, core of this commitment lies in Part III and Part IV of the constitution, in Fundamental Rights (FR) and in the Directive Principles of State Policy (DPSP). (Source: Granville Austin, The Indian Constitution: Cornerstone of a Nation). Their inter-relationship has undergone some transformations in judicial interpretations in the past which demands an examination of the features of both.

Fundamental Rights

These considered the most important and sanctimonious rights in our constitution. They protect individuals, minorities and communities from the arbitrary and prejudicial actions of the state. They are enforceable and justiciable. Enforcement of fundamental rights is a fundamental right in itself (Article 32). Also, any law can be struck down if it violates fundamental rights. They are mostly civil, political and cultural rights.

Directive Principles of State Policy

Realising that political rights alone can’t usher in a true democracy; socio-economic rights were also included in the Indian constitution. However, they were made non-enforceable and non-justiciable and were intended as moral precepts, a guiding light for the policy makers. Also, laws can’t be struck down if it is violative of these principles. Thus, when it comes to enforcement, fundamental rights have a primacy. Yet the values DPSPs represent are important. Hence their implementation is also necessary and are considered to be fundamental to the governance of the country (Article 37). The enactment of laws to implement DPSPs can at times be at conflict with fundamental rights. Judicial perception of this interplay has changed over a period. Let’s take a look at it:

Evolution of judicial perception

• Initially, the courts took a strict and literal legal position in this respect. Adopting a strict legal approach to Article 37, courts ruled that DPSPs couldn’t override a Fundamental Right. Fundamental Rights are enforceable while DPSPs aren’t, and so laws made to enforce DPSPs couldn’t override the fundamental rights. DPSPs should conform and run as subsidiary to the fundamental rights. This point was given by the Supreme Court in State of Madras v Champakam Dorairajan(1951).
• Government’s attempt to implement the directive principle in Art.39 resulted in the 25^th  Amendment Act which inserted a new article, socialistic Directive Principles specified in Article 39 (b) and (c) shall not be void on the ground of contravention of the Fundamental Rights conferred by Article14 (equality before law and equal protection of laws), Article 19 (protection of six rights in respect of speech, assembly, movement, etc) or Article 31 (right to property, deleted after 44^th  Amendment Act, 1978).
• This decision was upheld by the Supreme Court in Kesavananda Bharati v State of Kerala (1973). From then onwards, judicial attitude towards DPSPs has become more positive and affirmative. It was held that there’s no antithesis between FRs and DPSPs and one supplements the other and both were regarded as coequal.
• Supreme court through a series of case laws (Minerva Mills 1980, Unnikrishnan v State of Andhra Pradesh, 1993, Dalmia Cements limited v Union Of India, 1996) has established that Fundamental rights are not an end to themselves but are means to an end. These ends are specified in directive principles However, the achievement of goals specified in directive principles should be without abrogating fundamental rights. Since then, it has become a judicial strategy to read Fundamental rights along with the Directive Principles.

Judicial attitude towards the interplay of Fundamental Rights and Directive Principles has thus changed its course from irreconcilability to integration of them. Without an enforceability clause, directive principles were criticised as toothless. Yet this approach helped to get a legal recognition of the ideas in DPSPs. It has also helped in the assimilation of the directive principles to define the scope and ambit of the Fundamental Rights. Overall, this strategy has facilitated the broadening of existing rights and even creating new rights.

• Article 21 is the biggest beneficiary of such an approach. A bundle of Rights has been derived from article 21 by reading it with Directive Principles. For example, Right to live with dignity is now considered under Article 21 by reading it with directive principles. (Banda Mukti Morcha vs Union of India,1984). Similar is the case of Right to Education, a whole new Fundamental right which derives its existence from Article 21 and directive principles 41 and 45.
• Article 14 and 39(d) together have led to the emergence of principle of equal pay for equal work. (Griha Kalyan Kendra Vs Union of India, 1991).
• Directive principles are also used to determine the reasonableness of restrictions under article 19. Court held that restrictions that promote any of the objectives under directive principles is reasonable. In Nashirwar v State of Madhya Pradesh (1975), Supreme Court cited Article 47 as one of the reasons for citizens not having a fundamental right under Article 19(1)(g) to do business in liquor.

The accommodative approach to DPSPs however doesn’t extend to giving absolute primacy to it above fundamental rights. Government’s efforts to bring all DPSPs under Article 31C to give precedence over Articles 14 and 19 through 42^nd Amendment act, 1976 was invalidated by the Supreme Court in Minerva Mills Limited V Union Of India, 1980. Court’s pronouncement was that Constitution is based on the bedrock of balance between the Directive Principles and Fundamental Rights and to give absolute primacy to one over the other would disturb this balance. Both can exist harmoniously and flourish happily together. In this sense, they together constitute the core of our constitution and combine to form its conscience (Minerva Mills Limited V Union of India, 1980). Thus, fundamental rights and directive principles are not considered exclusionary of each other, but as ones that supplements each other. DPSPs have wider import and are dynamic. Therefore, an integrationist approach towards both will facilitate our constitution to be elastic to the needs of the society. This will augur well for a constitution envisaged as a transformative instrument capable of bringing social revolution through real changes in the society.