Part IV of the Constitution – containing the Directive Principles of State Policy (DPSPs) – has enjoyed a checkered history. Framed as a set of non-enforceable political prescriptions that the State has a “duty” to apply in the making of laws, it began life in the 1950s completely sidelined by the Courts. In 2014, however, virtually every socially-oriented constitutional or statutory judgment (and most Part III judgments as well) of the Courts contains an obligatory reference to the DPSPs. Quite often, this invocation is mere window-dressing, and doesn’t actually turn the case one way or another. Equally, there are times when it is clear that the DPSPs are playing an important role in the outcome of a case. The somewhat cavalier manner with which the Courts treat the DPSPs bears obvious similarities with Article 21: a boundlessly wide tent, floating untethered from the text and structure of the Constitution, which can accommodate whatever transitory judicial preference of a particular bench on a particular day.
Admittedly, it is too late in the day to go back to the position that Mr. Seervai advocated rather persuasively: the DPSPs, explicitly stated to be non-enforceable, ought to play no role whatsoever in constitutional adjudication. Given that they play some role, however, how ought they to be understood in a way that maintains fidelity to the Constitutional text and structure, and explains precedent adequately? In this series of posts, we will attempt to reconstruct the Supreme Court’s DPSP jurisprudence in a way that answers to those concerns.
A quick look at Part IV suggests a conundrum for interpreters. There seems to be no coherent principle that undergirds and explains the place of the DPSPs in the constitutional scheme. Social-democratic prescriptions about equitable sharing of natural resources and equal pay for equal work rub shoulders with the uniform civil code and the prohibition of cow slaughter. A reading of the Constituent Assembly Debates indicates that often, a principle that the framers were divided over, one which could not carry enough support in the Assembly to become a fundamental right, was relegated to Part IV as a way of appeasing its proponents.
This explains much. Over time, however, by focusing on some of the DPSPs to the exclusion of others (especially Articles 38 and 39), the Courts (primarily basing themselves upon Granville Austin’s image of the two wheels of a chariot), have imposed a pattern upon the seemingly haphazard DPSPs. They have theorised that Part IV comprises of “goals”, and Part III contains “rights” that the government must respect in pursuit of its goals (Kesavananda Bharati is perhaps the most famous case that posits this theory). This – according to the Courts – is the a priori distinction between Part III and Part IV, which ought to inform the judicial approach to issues involving fundamental rights and DPSPs.
In its own way, it is a familiar distinction. For instance, Ronald Dworkin argues that goals are particular end-states in the distribution of resources, while a right is something that the government is not permitted to infringe in its pursuit of its chosen goals. Yet the distinction is question-begging. What makes something a right or a goal? As Dworkin himself observes (see his Taking Rights Seriously), it depends on the constitutional scheme and the legal framework of the polity in question. Providing adequate nutrition to all its citizens can be framed as a goal, but it can equally well be framed as an individual right to food or health (and the South African Constitution does so). The goals/rights, or ends/means distinction, therefore, needs something else to motivate it.
There is another, equally obvious distinction. Part III embodies civil/political (or “first generation” rights), whereas Part IV enshrines socio-economic, second-generation guarantees. Yet this, again, is simply labeling. What is the relevant conceptual difference between these two categories, which would justify treating them differently in a Constitution? The civil/political and socio-economic distinction tracks another, deeper distinction, however, that does have a conceptual history to it: the difference between negative and positive rights.
In political theory, the difference is conceptualized in the following manner: first, negative rights involve freedom from governmental (or private) coercion that would prevent an individual from doing what she is otherwise minded to do; positive rights requires the government to take action in order to provide an individual something she cannot get for herself. Secondly – and relatedly – negative rights do not require policy choices; positive rights, on the other hand, directly implicate economic prioritization and budgetary allocations – i.e. “a broad redistribution of society’s resources”. The first distinction provides a theoretical ground for arguing that only negative rights are rights at all, properly called, since in a free society, the only form of protection that individuals should be entitled to is protection against coercion. The second provides a slightly more practical argument for the proposition that, whether or not socio-economic rights are rights in theory, since they involve the kind of economic and financial balancing that lies within the competence of the government, they ought not to be made available to individuals as enforceable claims in the manner of negative rights.
On a closer analysis, however, both these distinctions break down. It is controversial whether coercion is a meaningful way to separate categories of rights. As Cohen, Sen and others have argued, the distinction is premised on the distinctly non-neutral and ideologically coloured notion of freedom as non-interference. Even conceding that it is, however, so-called negative rights involve as much governmental action as positive rights. The right to property, for instance, is meaningless without an institutional system that involves a police force to prevent trespassing, and a legal structure to punish it when it does happen.
There is another way, furthermore, in which the coercion and action/inaction framework dissolves. Consider Cohen’s famous example: I wish to travel from Place A to Place B, but lack the money to buy a train ticket. I board the train nonetheless, and at some point, after the ticket-collector has found that I do not possess a ticket, the coercive apparatus of the State will be called upon to remove me from the train, and prevent me from traveling to where I want. In this way, Cohen argues, my lack of money violates my freedom of movement, even if freedom is defined strictly as absence of coercion. Poverty, thus, is as much a violation of negative liberty as is the State preventing me from free movement by placing me under house arrest.
The action/inaction dichotomy directly leads into the second alleged distinction: setting up and preserving a legal and institutional regime for the protection of negative liberties clearly involves economic and budgetary policy choices in much the same way as guaranteeing to all persons adequate food, or access to health. Thus, as the ICESCR Committee pointed out, “courts are generally already involved in a considerable range of matters which have important resource implications.” Cecil Fabre’s illustration of how an effective right to vote requires an effective system of voting, which in turn would implicate the government in making choices about allocation of manpower, resources and so on, nicely illustrates the argument. The negative/positive distinction, therefore, is unhelpful and ought to be discarded.
Lastly, it may be argued that positive rights are inherently vague and open-ended, and therefore only fit for resolution through the political process. This objection, however, fails for reasons of under-inclusiveness and over-inclusiveness. Public interest limitations on negative rights, found in Constitutions all over the world, including the Indian, are as open-ended as positive rights. On the other hand, the ESCR’s General Comment 12, on the right to food, is the model of clarity and precision in its definition of the right:
“… the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture.”
Therefore, in purely conceptual terms, there is good reason to deny a stand-alone distinction, independent of the particular framing history of the Indian Constitution, between Parts III and IV. Indeed, the history of the right to education – which moved from the Directive Principles to the Fundamental Rights, becoming Article 21A via a Constitutional amendment at the suggestion of the Courts, suggests the inherent fluidity of the distinction, and lends support to the proposition that, ultimately, the distinction is purely contingent and historical.
Having dealt with a potential red herring – a false dichotomy between negative, civil/political and positive, socio-economic rights – we have now cleared the ground for an investigation into the actual text, structure and drafting history of the DPSPs, and their relationship with fundamental rights, free of the assumptions that Courts have sometimes sought to impose (assumptions that, as we shall see, play little or no role in their actual jurisprudence). This investigation, and the examination of precedent in its light, shall be the subject of the next few posts.