In this post, we continue our examination of the place and role of the Directive Principles of State Policy within the constitutional scheme. Part I dealt with the conceptual foundations underlying the division between fundamental rights and directive principles, and Part II focused on the history and text of Article 37, along with early judicial interpretation. In this post, we shall look at the Court’s evolving understanding of the relationship between Directive Principles and Fundamental Rights over time)
As we discussed towards the end of Part II of this series, the Supreme Court judgment in Re Kerala Education Bill marked a shift in the Court’s understanding of the DPSPs. In the first decade of its existence, the Court had largely cleaved to H.M. Seervai’s understanding of Part IV – namely, that the directive principles were politically significant but constitutionally irrelevant. In Re Kerala Education Bill, however, we see for the first time the fateful phrase – “harmonious construction of fundamental rights and directive principles”. Harmonious construction – a phrase borrowed from the legislative competence cases – is of elastic ambit, and has been used elastically by the courts. In this post, we consider two ways in which the court has understood the relationship between Parts III and IV of the Constitution.
The Directive Principles as Markers of Reasonableness
The Indian Constitution provides inbuilt, textual limitations to its fundamental rights. For instance, Article 19(1)(g), that guarantees the freedom of trade, also permits the government to legislate “reasonable restrictions… in the interests of the general public”. In the aftermath of In Re Kerala Education Bill, the Court began to invoke the DPSPs to decide the ambit of the restrictions upon fundamental rights. This happened primarily in the realm of labour legislation, where a number of employee-oriented laws were challenged under Article 19(1)(g). In Prakash Cotton Mills v. State of Bombay, the question was whether the state could compel companies to join collective bargaining agreements that they had not directly consented to. Examining the application of Article 19(1)(g), the Bombay High Court observed:
“In the larger interests of the country an employer must submit to those burdens and carry on his business in conformity with the social legislation which is put upon the statute book.” (para 6)
While Prakash Cotton Mills did not directly refer to the Directive Principles, Jugal Kishore v. Labour Commissioner did so, citing no less than three of the Principles to hold that notice requirements and other restrictions upon employers’ discretion were restrictions in interests of the general public. Similarly, in Chandrabhavan v. State of Mysore, the Court upheld state minimum wage legislation, cursorily dismissing the 19(1)(g) claims of the employers by stating:
“We are not convinced that the rates prescribed would adversely affect the industry of even a small unit therein. If they do, then the industry or the unit as the case may be has no right to exist. Freedom of trade does not mean freedom to exploit.” (p. 612)
Chandrabhavan is also noticeable in that it came at the end of the 60s, and marked another shift in the Court’s jurisprudence by abandoning the “subordinate-but-relevant” doctrine of In Re Kerala Education Bill. In Chandrabhavan, the Court observed that the bill of rights and the directive principles were “complementary and supplementary” to each other. In some way, this approach had already been adopted in Golak Nath v. State of Punjab, and it was echoed in two of the important constitutional cases of the 70s, Kesavananda Bharati v. State of Kerala, and Minerva Mills v. Union of India. The Court rationalized this approach by defining the directive principles as “social goals”, and the fundamental rights as “side constraints” to be scrupulously adhered to by the government in its pursuit of those goals. In thirty years, therefore, the Court moved from a position where the Directive Principles were constitutionally irrelevant to a point where they were constitutionally at par with the bill of rights, with the only difference being that citizens could not move the Court directly to enforce them. Yet the judgments of the 70s, placing the Directive Principles on the same conceptual level as the bill of rights was to have far-reaching consequences, as we shall presently note.
The shift in the 70s, that we shall go on to discuss, was complementary to the reasonableness-of-restrictions approach. It did not replace it. Throughout its history, the Court has regularly invoked the Principles to find that Article 19 restrictions are valid, in fairly unproblematic ways. The Court has done this through a simple argument: the Directive Principles, it has held, are self-evidently expressions of what public interest is. Any governmental policy aimed at advancing a Directive Principle, then, cannot but be in the public interest, and can, at times, raise a presumption of reasonableness. Unfortunately, the Court has also held, on occasion, that such a policy is reasonable simply by virtue of being enacted in pursuit of a directive principle.
This is clearly unwarranted. Consider, for example, the 2012 Right to Education Case. The Court held that the obligations imposed by the Right to Education Act upon private schools – i.e., a compulsory 25% intake from economically underprivileged households within a certain catchment area – to be reasonable restrictions under Article 19(6), by virtue of being in pursuance of the Directive Principles. The Court would probably not have reached the same result had the compulsory reservation been, say, 80%, although that too would have been in pursuance of the Directive Principles. Clearly, then, it is quite possible to implement the goals set out in Part IV in an unreasonable manner. This was something the Court clearly understood in Mirzapur Moti, where it held that a restriction aimed at fulfilling the Directive Principles will be reasonable insofar as it does not run in “clear conflict” with the fundamental right. It is this line of reasoning that is correct and – it is submitted – ought to be followed in the future.
The Directive Principles as Interpretive Guides
Once the Court had cleared the path for invoking the Directive Principles in legal adjudication in In Re Kerala Education Bill, it was not long before it took the next logical step: using them as interpretive guides. In Balwant Raj v. Union of India, a 1966 judgment of the Allahabad High Court, an employee of the Indian Railways contracted tuberculosis and was unable to come to work for a time. Consequently, he was discharged for “failing to resume duty” under the stipulated rule. Reading the Directive Principle requiring the State to secure the right to work, the Court limited the phrase “failing to resume duty” to voluntary failures, holding that “the rule must be interpreted in accordance with letter and spirit of the Directive Principles of State Policy.” Thus, the Court assumed the legal fiction that the State had, in fact, applied the Principles in framing the contested legislation.
Yet what, precisely, is the strength of that legal fiction? A survey of comparative constitutional practice reveals four distinct standards that constitutional courts have adopted when construing legislation to harmonise with standards contained in a super-statute or Constitution. Let us call these four standards “weak”, “medium”, “strong” and “modificatory” .
A weak standard only requires Courts to select that interpretation, out of a series of equally reasonable interpretations arrived at independently, which coheres better with the background right at issue. A medium standard, found in New Zealand, requires a meaning that is “fairly open… and tenable” to be preferred if it is consistent with the bill of rights. The strong standard, adopted by the UK Supreme Court in interpreting the Human Rights Act, goes one further and allows for any interpretation, no matter how strained, to be preferred if it is consistent with the Human Rights Act and is an intelligible reading of the statute in question. And the modification standard goes furthest of all – it stipulates that the meaning of legislation itself is to be determined by referring to the background right.
In Balwant Raj, the Court adopted – arguably – a strong standard of review, infusing an additional condition into a provision that was nowhere in evidence on its face. Subsequently, however, it went even further: in UPSEB v. Hari Shankar, the Supreme Court was interpreting the phrase “Nothing in this Act shall apply…” The technical details of the case need not detain us here; it is this observation of the Court that is striking:
“That is the only construction which gives meaning and sense to Sec. 13-B and that is a construction which can legitimately be said to conform to the Directive Principles of state Policy proclaimed in Articles 42 and 43 of the Constitution.” (p. 371)
In other words, the Court treated the Directive Principles as constitutive of legislative meaning: the maximum degree to which it could infuse directive principles into the law without directly enforcing them. This strong vision of the Directive Principles has been latent in the Court’s jurisprudence since then. In 2013, for example, the Court invoked the Directive Principles in determining the meaning of the phrase “public purpose” under Article 282 of the Constitution. It held that the Tamil Nadu state government’s distribution of free televisions was a valid “public purpose” under Article 282 because it was in pursuance of the Directive Principles.Unfortunately, however, the Court – thus far – has failed to undertake a coherent, doctrinal analysis of the precise role that the Principles are meant to play in statutory interpretation.
In the next essay, we shall examine – and defend – one final way in which the relationship between Parts III and IV has been instantiated by the courts: that of using Part IV to establish the framework values within which Part III rights are given meaning and sense.