This is the second part of a series of analytical posts on Part IV of the Constitution – the Directive Principles of State Policy. In the first post, I examined the possible conceptual distinction between Part III (“civil/political” or “first-generation” rights), and Part IV (“socio-economic” or “second-generation” rights), concluding that from the point of view of adjudication and judicial reasoning, the distinction ought not to make any difference. From this post onwards, we discuss the judicial understanding of Part IV, an its relationship with Part III).
Part IV of the Constitution commences with Article 37, which states:
“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.”
Each of the three highlighted terms is susceptible to different interpretations. First – non-enforceability means, of course, that one may not ask the Courts to strike down a law for violating the Directive Principles (contra fundamental rights). But does non-enforceability also bar the Courts from using the Directive Principles in considering, interpreting and adjudicating upon other laws? Secondly – our enforceable Part III rights are specifically defined as “fundamental rights”. Does the use of the same word in Article 37 imply some degree of conceptual overlap between Parts III and IV? And thirdly – what is the nature of the “duty” that Article 37 imposes upon the State? Is it a constitutional duty, a legal duty or a moral duty? And what are the consequences? A purely textual reading of Article 37 cannot answer any of these questions, and is insufficient to inform our understanding about the nature of the Directive Principles, and their place in constitutional adjudication.
At one end of the spectrum stands H.M. Seervai, who argues that the Directive Principles are nothing more than political exhortations to the legislature, and can only be “enforced” at the ballot box. According to Seervai, a Court may not even take note of the existence of the DPSPs (much less their content) in deciding any case, constitutional or otherwise. And in the first ten years after the Constitution came into being, the judiciary adopted this approach. In State of Madras v. Smt Champakam Dorairajan, for instance, the State’s justification of caste-based reservations under Article 46 of the Constitution was rejected on the ground of the non-enforceable character of the DPSPs. Similarly, in Muir Mills vs Suti Mills Mazdoor Union, the Court refused to invoke the DPSPs even to interpret the law on workmen’s right to bonus payments, sticking instead to the traditional common law of wages and bonuses. Various High Courts followed this approach, taking non-enforcement to be equivalent to constitutional irrelevance. For instance, in Jaswant Kaur vs State of Bombay, the Bombay High Court unambiguously held that “any article conferring fundamental rights cannot be whittled down or qualified by any thing that is contained in part IV of the Constitution.”
This approach reached its apogee in the famous cow-slaughter judgement of 1959 – Mohd Hanif Qureshi v. State of Bihar. Bihar’s cow slaughter ban was justified by arguing that it was designed to give effect to Article 48. Rejecting this contention, the Court noted:
“… a harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights.”
In other words, while the State ought to make laws implementing the directive principles, Part III rights, standing alone and interpreted autonomously, would place a check upon such endeavours. The Directive Principles ought to have some role to play at the time of enacting legislation, but none afterwards. This was evident in the manner in which the Court decided Qureshi. Its exhaustive economic analysis informing the application of Article 19(1)(g) and 19(6) saw little reference to the DPSPs.
That same year, however, marked a subtle – yet distinct – change. In Re Kerala Education Bill dealt with the rights of minorities to run educational institutions. Referring to the Directive Principle (Article 45) that mandated the State to ensure the provision of effective and adequate education, the Court observed:
“The directive principles of State policy have to conform to and run as subsidiary to the Chapter on Fundamental Rights… nevertheless, in determining the scope and ambit of the fundamental rights relied on by or on behalf of any person or body the court may not entirely ignore these directive principles of State policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible.”
Notice that while both Mohd Hanif Qureshi and Re Kerala Education Bill use the phrase “harmonious construction/interpretation”, they use it in different senses. Qureshi’s harmony does not accord any interpretive role to the Directive Principles. In Re Kerala Eduction Bill, on the other hand, while reaffirming the primacy of the fundamental rights, the Court nonetheless opens the gates for DPSPs to play a tangible – if subsidiary role – in interpretation, holding that the “scope and ambit” of the fundamental rights should be determined in such a harmonious way, that full effect is given both to Part III and Part IV.
Before we pause to examine the evolution of this approach, we must examine the constitutional arguments that support this position. The first is textual. Article 37 states that it shall be the duty of the State to apply the Directive Principles in making laws. Now, whether the obligation is legal, moral or political, it is, at the very least, a Constitutional obligation. And if we are to accept the benign fiction that the legislature is composed of reasonable persons pursuing reasonable ends reasonably, then it makes sense to assume that, insofar as the parliament acts in good faith while enacting laws, it is taking the DPSPs seriously, and applying them in the making of such laws. Consequently, when a Court is called upon to interpret those laws, it may assume that Parliament has legislated in consonance with the DPSPs and, therefore, may invoke them in determining the content of laws. Thus, textually, there is at least some scope for the DPSPs in an interpretive enquiry (the clause leaves open what scope, exactly) that does not rise to the level of “enforcement”. According to Ambedkar himself, the proscription on enforceability was to be as imposing no obligation upon the State to act upon the Directive Principles – not that the principles themselves were irrelevant in understanding how the State had (legislatively) acted, once it did.
Seervai relies upon Ambedkar’s initial speech in the Constituent Assembly Debates to substantiate the ballot-box argument. Ambedkar, however, made the ballot box point in a very specific context: to draw a contrast between requiring the government to answer for the breach of a directive principle in a Court of law, and to answer for it to the electorate. That is, he was concerned about non-enforceability which, as we have seen, does not exhaust the textual possibilities of Article 37. In the same speech, indeed, Ambedkar repudiated the objection that the DPSPs were no more than pious wishes, arguing that no legal force did not imply no binding force. Ambedkar’s use of the word “binding” (as opposed to “political” or “moral”), a word that is equally at home in both a legal and a non-legal context, seems to indicate that the Principles, while falling well short of enforceability, were not meant to be legally irrelevant either. Responding subsequently to Naziruddin Ahmad’s call to remove Part IV altogether, he expressly argued that the Principles were both fundamental and directive in the sense that they “should be made the basis of all executive and legislative action.”
Other members of the Drafting Committee agreed. Alladi Krishnaswamy Iyer argued that while the Directive Principles were neither justiciable not enforceable, it would be “idle to suggest that any responsible government or any legislature elected on the basis of universal suffrage can or will ignore these principles.” The use of the word “can” (in addition to “will”) is telling: it suggests that it is simply not open to the legislature to ignore the Principles, whether it chooses to or not. But the only way in which this makes sense would be if the Court was to impose the legal fiction that we have discussed before – that the legislature has applied the Directive Principles in the making of laws (whether or not individual legislators consciously did so).
Evidence that what distinguished Part III and Part IV, in the mind of the framers, was a narrow conception of legal enforceability/remedies is evident from the debate over Draft Article 36. Originally worded as “every citizen is entitled to free primary education…”, it was amended to “The State shall endeavour to provide… free and compulsory education” – on the specific ground that the language of entitlement (which, of course, logically entails a remedy) was the language of fundamental rights. In addition, as Minattur points out, the fact that the word “enforceable” in Article 37 was actually brought in to replace the word “cognizable” (which is of much wider import), makes the argument compelling.
To these arguments, we can add a brief, structural point. The principle of non-superfluity is a standard interpretive technique, based on the assumption that the legislature does not waste its words. Thus, an interpretation that renders a part of a statute legally irrelevant is to be avoided, if possible. Surely the same argument applies with even greater force to the Constitution: ceteris paribus, an interpretation that renders an entire Chapter constitutionally irrelevant is to be avoided, if possible. The above arguments have been designed to demonstrate that at the very least, an interpretation that does not do so is feasible.
In sum, therefore, the text, history and structure of the Constitution suggest the following holistic reading of Article 37: the first part – the non-enforceability clause – is limited to just that: citizens may not move the Court seeking remedies for either breach of a directive principle, or for requiring Parliament to enact a directive principle into law. The second and third parts – that specify the fundamental nature of the Principles and the duty of the State to apply them –set out an interpretive role for the Principles to play in determining the legal meaning of statutes. Article 37, thus, is janus-faced: it carves out a sphere in which the Directive Principles have no role to play, and at the same time, carves out another sphere in which they do. I suggest, therefore, contra Mr. Seervai, that in In Re Kerala Education Bill, therefore, the Supreme Court was correct in turning away from its own earlier jurisprudence.
In the next post, we will turn to the Supreme Court’s jurisprudence in the aftermath of In Re Kerala Education Bill, to understand what interpretive role the Directive Principles have played in the judicial enquiry.