Category Archives: Directive Principles of State Policy

Uttarakhand High Court “bans” Alcohol Consumption

Last week, the Supreme Court mandated the compulsory playing of the national anthem in cinema halls, without considering whether it had the jurisdiction or power to do so under the Constitution. The disease seems to be infectious. Yesterday, the High Court of Uttarakhand took it upon itself to ban the consumption of alcohol in three districts in the State of Uttarakhand. Like the Supreme Court’s order, the strange thing about the Uttarakhand High Court’s judgment (which runs into 34 pages) is that the public interest petitioner never even made a prayer for banning. The petition was about the alleged fact that the Government had opened a liquor bar in Haridwar, in contravention of its own Government Order, passed in 2002, which imposed prohibition within a 1.6 kilometre radius of Haridwar.

This is a rather narrow and specific prayer. That does not, however, stop the High Court from embarking upon a moralising homily about alcohol consumption and its ill effects. After that, the High Court cites a number of Supreme Court judgments for the proposition that there is no fundamental right to trade or conduct commerce in alcohol. And then comes the zinger:

“The State Government has imposed a ban on sale of liquor at Char Dhams but in order to give more sanctity to the government order and with a view to save the health of people living in the districts where these Char Dhams are located, the State Government should impose complete prohibition. The prohibition in these areas would bring peace and harmony. It is the poor segment of the society which spends more money on liquor than on food leaving their family and children in misery. The loss of revenue would be compensated by restoring the health of the society. The societal interest in every individual is prolonged by ensuring his healthy life. The use of intoxicants, drugs and liquor, in fact, affects the morality. Use of alcohol causes depression. It damages the liver. It may cause Cancer as well. The long-term consumption of liquor/alcohol results in death of brain cells. It may result in cirrhosis including Pancreatics. It also affects the social fabric of the society. Large number of devotees from all over the country visit Chardham in the State of Uttarakhand… The State Government, though, has taken laudable steps for prohibiting the sale of liquor in specified areas but taking into consideration the ever increase consumption of alcohol, more particularly in younger generation, the complete prohibition on possession, distribution, collection, sale, purchase or consumption of liquor/alcohol, including beer and intoxicants, is required, at least, in the districts where Chardhams are situate, to begin with. Similarly, the possession, distribution, collection, sale, purchase or consumption of tobacco is also required to be totally prohibited within a radius of five kilometres from Nanakmatta, Ritha Sahib and Hemkund Gurudwaras.”

This is all very lovely and quaint. It’s also legally irrelevant. All the Supreme Court decisions that the High Court cites are about the constitutional validity of  a complete or partial State-imposed prohibition, not about the Court itself imposing prohibition in the absence of any law. Much like the Supreme Court last week, the High Court seems to suffer from a rather basic confusion between what is desirable, and what is legal. Throughout the 34-page long judgment, the High Court cites exactly one constitutional provision: Article 47, which provides that “the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.” The Court goes to the length of quoting the Constituent Assembly Debates for the purpose behind Article 47, but strangely, seems to be unaware of the existence of Article 37, which begins with the words “the provisions contained in this Part shall not be enforceable by any court…”

There is little ambiguity in the phrase “shall not be enforceable by any court“. To convert it from passive to active voice, it means that the Constitution prohibits the Court from enforcing a Directive Principle of State Policy. One would have expected the Uttarakhand High Court to at least invoke Article 21 in order to provide the regulation, customary fig-leaf of legitimacy, but even that is nowhere to be found in the judgment.

Under a Constitution that makes the judiciary the final arbiter of its own powers, the only effective check upon it is self-restraint. The last two weeks have shown that when it comes to directly encroaching upon personal rights and freedoms, that self-restraint is in short supply.

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The Bihar High Court’s Prohibition Judgment: Key Constitutional Issues – II: The Fundamental Right to Privacy

The final, substantive ground of attack upon amended Section 19(4) of the Bihar Excise Act, and its notification of total prohibition, was that of fundamental rights violations. It was on this point that Justice Singh and the Chief Justice differed. Let us first consider the Chief Justice’s reasoning. The Chief Justice pointed to Article 47 of the Constitution, one of the Directive Principles of State Policy, which stated that:

“The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”

The Chief Justice then observed that, in accordance with well-established precedent, Parts III and IV of the Constitution had to be harmoniously construed. Accordingly, the Chief Justice held:

“When the State has been, asked by the Constitution to make endeavor to bring about prohibition of the consumption except for medicinal purposes of, intoxicating drinks and/or drugs, which are injurious to health, it, undoubtedly, means that making of serious and sincere efforts to take the society to a situation, where it accepts prohibition as a constitutionally declared obligation of the State. When and how it would be done is a question, which needs to be answered by the State depending upon the manner in which the endeavour may be made to bring about prohibition. If it is made in the manner, as has been done in the present case, the endeavour may not survive the test of constitutionality; but if it is done in accordance with law and the constitutional scheme of governance, one cannot be heard to say that his fundamental rights are violated.” (paragraph 39)

In other words, since Article 47 expressly contemplated the State taking legislative measures towards prohibition, the imposition of prohibition (if done in the correct manner) must, by definition, be in conformity with Part III, because any other conclusion would imply a direct clash between fundamental rights and Directive Principles.

What was particularly interesting was how the Chief Justice distinguished Minerva Mills vs Union of India, which had clearly held that the goals under Part IV could not be pursued at the cost of infringing fundamental rights. The Chief Justice held that in Minerva Mills – and in all other similar cases besides – there had already been an existing infringement of a fundamental right, which was sought to be justified by recourse to Part IV (and which was held to be impermissible) (paragraph 52). Here, however, given the text of Article 47, it was clear that the framers had never intended the right to drink alcohol to fall within any of the provisions of Part III, because if they had, they would not have laid out prohibition as a Part IV goal. In other words, the Chief Justice did not undertake an independent analysis of whether or not the right to drink alcohol was part of any fundamental right, but held that as a matter of construction – i.e., harmonising Parts III and IV – it could not be:

That the right to privacy is integral and inseverable facet of fundamental right can no longer be in dispute; but the question of all questions is : whether one’s desire to consume alcohol is a fundamental right? If consumption of alcohol by one is regarded as a fundamental right, then, infringement thereof would, undoubtedly, amount to intrusion into one’s right and would be struck down. When, however, the Constitution obliges the State to make endeavour to bring complete prohibition in respect of consumption of intoxicating drink, consumption of intoxicating drink cannot be treated as a fundamental right.” (paragraph 62)

The Chief Justice finally buttressed this conclusion by citing the Supreme Court judgments in Khoday Distilleries and Kerala Bar Hotels Association, both of which had agreed that the imposition of various stringent controls over the production and sale of alcohol amounted to a reasonable restriction upon Article 19(1)(g), and passed Article 14 scrutiny.

This is a powerful argument, but not entirely persuasive. The relationship between Parts III and IV of the Constitution has had a long and fraught history (one that I have examined in detail elsewhere). It is true that from the mid-1960s, the Supreme Court has consistently held that fundamental rights and directive principles must be interpreted “harmoniously”. For the most part, this harmony has taken three forms: first, directive principles have helped determine the scope of “public interest” under Articles 19(4) – (6); secondly, they have been used to determine whether restrictions upon fundamental rights pass the test of reasonableness; and thirdly, they have been invoked in situations where the abstract wording of a Part III right is open to more than one competing conception. The last one is particularly important for our purposes here, and ought to be understood with an example. In State of Kerala vs N.M. Thomas, the Supreme Court made its famous turn from understanding Article 16(4) as an exception to Article 16(1), to holding it to be a facet of 16(1). This turn was predicated upon a deeper shift: from viewing the equality code under Articles 14-15-16 as espousing formal equality to interpreting it as endorsing substantive equality. In their concurring opinions, Justices Mathew and Krishna Iyer invoked the Directive Principles (in particular, Article 46), to make this shift. The Directive Principles, then, were used to decide which conception of equality was more faithful to the overall constitutional scheme, which included both the abstract text of Articles 14, 15 and 16, as well as Part IV.

It is important to distinguish this use of the Directive Principles as structuring values that may be invoked to infuse concrete content into the fundamental rights provisions from what the Chief Justice did, which was to limit the scope of fundamental rights through the Directive Principles. If, on an independent analysis, it was found that the right to personal liberty under Article 21 included the right to choose one’s way of life (including one’s choice of food and drink) independent of State coercion, then Article 47 could not (in accordance with precedent) be invoked to eliminate that right as far as alcohol was concerned (in fact, it is important to note that Article 47 does not provide a carte blanche for prohibition, but is limited to intoxicating drinks and drugs which are “injurious to health).

The flaw in the Chief Justice’s argument is evident from a perusal of Article 31C of the Constitution, which states that:

“Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing  the principles specified in clause (b) or clause (c) of article 39  shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by [article 14 or article 19].”

In other words, Article 31C expressly contemplates the possibility that a law enacted in accordance with Articles 39(b) or (c) may, on its merits, infringe Articles 14 or 19, and provides a constitutional override for situations of that kind. If the Chief Justice’s argument was to be accepted, then this override would be entirely redundant.

Justice Singh, in his opinion, began by addressing the Chief Justice’s argument. He – and in my view, correctly – noted that although the Chief Justice had framed his argument in terms of “harmonising” Parts III and IV, in effect, such an interpretation (which, recall, allowed the scope of rights to be curtailed by the DPSPs) would end up making Part III subordinate to Part IV, which was entirely at odds with Minerva Mills (paragraphs 88.02 – 88.03).

Having dealt with this argument, Justice Singh then moved on to considering the scope of the right itself. After noting that prior precedents upholding prohibition had done so by finding it to be a reasonable restriction upon the freedom of trade and commerce, and had not considered the issue of the individual right of consumption of alcohol, he observed that:

“Similarly, with expanding interpretation of the right to privacy, as contained in Article 21 of the Constitution, a citizen has a right to choose how he lives, so long as he is not a nuisance to the society. State cannot dictate what he will eat and what he will drink. We have to view this concept in changing times, where international barriers are vanishing. Any restriction by a State, on the right to choose what to eat and what to drink, apart from being invasion of right of privacy under Article 21, would prejudicially affect free movement and free residence, in any part of territory of India, for the citizens. Keeping in view these factors, a citizen cannot be prohibited from his choice, within the confines of his house, subject to orderly behaviour, of enjoying his drink, which he can procure from any other part of the country, where prohibition is not in force.” (paragraph 88.04)

There are two distinct arguments here that need to be examined separately. The first is the argument from privacy. Justice Singh went through the now well-known series of judgments on the right to privacy, and focused, in particular, on those aspects of the judgments that endorsed the right to privacy as encompassing a right to decisional autonomy. Consequently, he held, in paragraph 88.15, that:

“Thus seen, in my view, the right to decide as to what to eat and drink within the confines of once house, by an individual citizen, would come within the matter of right of privacy, within Article 21 of the Constitution. It is not the case of the State nor any material placed on record that drinking alcohol per se as a responsible citizen is bad or injurious to health. It is abuse thereof that is injurious. On the plea of mere possibility of abuse by some persons, the right of others cannot be abrogated. In my view, if the State starts dictating a citizen what to drink or what not to drink, though the same is not per se injurious to health, it would be a direct intrusion on personal liberty affecting meaningful life. It would be violation of personal liberty guaranteed by the Constitution.” 

In other words, absent a specific showing of harm (which, indeed, was what Article 47 required), which the government had not undertaken in the present case, the denial of choice in matters of private consumption infringed the fundamental right to privacy.

The second aspect of the argument in paragraph 88.04 was based upon the freedom of movement, and framed by Justice Singh as an argument from unconstitutional conditions. In paragraph 88.06, he held:

“Just to illustrate the unreasonableness of this, consider a case of a person born and brought to the Metropolis like Bombay or Delhi, educated there and serving there. Consumption of liquor to him is a part of his life and part of his relaxation, he is accustomed to it. If he has to move to this State and has an option, he would not do so, because he would have to give up his life style. That would infringe not only Article 21 but also Article 19 (1) (d) and Article 19 (1) (e) of the Constitution. He would be inhibited from coming to this State. India is one country.”

While I am normally a strong supporter of the doctrine of unconstitutional conditions – i.e., that the State cannot make a benefit or a penalty conditional upon my waiver of a fundamental right (in this case, my freedom of movement), this argument appears to prove too much. Under this logic, it would mean that state amendments to the IPC that provided stricter or heavier punishments were unconstitutional, since the end result would be that a person would be deterred from moving to those states (in violation of his Article 19(1)(d) rights). And taken to its conclusion, this logic would entail that any issue which even peripherally touches upon fundamental rights can only be legislated by the union Parliament. This clearly cannot be correct.*

In any event, even sans the freedom of movement argument, Justice Singh’s privacy argument remained, which he concluded by noting:

“Thus, in my view, a citizen has a right to enjoy his liquor within the confines of his house in an orderly fashion and that right would be a part of right of privacy, a fundamental right, under Article 21 of the Constitution and, any deprivation thereof would have to withstand the test of Articles 14 and 19 of the Constitution as well.”

There are interesting parallels between Justice Singh’s privacy argument, and the Bombay High Court’s invocation of privacy to strike down the possession section (Section 5D) of the Maharashtra beef ban. In that case, I had noted:

“The Court endorses two different (and complementary) conceptions of privacy. The first is a spatial vision: “the State cannot make an intrusion into his home… the citizen has a right to lead a meaningful life within the four corners of his house…” In other words, invasion of an individual’s “private space” in order to discover whether or not he is eating beef violates privacy (readers will not that this argument applies exactly to Section 5C as well). The second is a vision of privacy as decisional autonomy – “what one eats is one’s personal affair, and it is part of privacy… [Section 5D] violates the right to be let alone.” At first glance, it might not seem that dietary choices hardly implicate those kinds of fundamental life decisions that are normally associated with individual autonomy. This is perhaps why it might be more helpful to think of this not in terms of how central dietary choice is to individual autonomy, but in terms of something that Jed Rubenfeld has called the “anti-totalitarian principle” (previously discussed here): State power ought not to be used for “forcing of lives into well-defined and highly confined institutional layers.” Control over diet is one instance of State shaping lives into a rigid pattern (often justified by ideological considerations).”

This twin conception of privacy as decisional autonomy and as the sanctity of the home was at the basis of Justice Singh’s opinion as well. It is interesting to note that, even as the Supreme Court reference continues to remain unanswered, the High Courts appear to be crafting the beginnings of a tradition of constitutional privacy.

Lastly, Justice Singh also held that the Notification violated Article 14. This was because the purpose of the New Excise Policy was primarily to combat alcohol addiction in poor and rural areas (hence, in the Policy (until it was overriden by the Act) the proposed ban was on country liquor, while leaving open sale of foreign liquor in urban areas). However, the Notification, while banning all alcohol (including foreign liquor) said nothing about banning toddy:

“Curious to note that toddy (Tari), which is available in abundance and tapped freely without any licence or permit and sold freely not only in the rural areas but urban areas and which has alcohol content, undisputedly matching or above beer, has not been prohibited. It is freely available even today. There is no notification barring it. Then to say, that on one hand toddy can be freely tapped and sold unchecked, but foreign liquor or IMFL including beer cannot be sold or consumed does not stand to reason, if the true object of the State was to implement Article 47 of the Constitution.” (paragraph 88.10).

This argument, however, is not entirely persuasive. Ever since Ram Prasad Seth vs State of UP, it is settled law that the State can choose to initiate reform in a phased, sector-wise manner, and Article 14 is not attracted if the State has taken the first of many progressive steps towards reform (what reform is, of course, is a matter for the State to determine, subject to the Constitution). Consequently, it was incumbent upon Justice Singh to refute the logic of phased or segmented reform (which, as he himself observed, was the point of the New Excise Policy). However, he did not do so.

Consequently, while I agree with Justice Singh’s holding that the Notification violated the fundamental right to privacy – and his formulation of the right to privacy – I disagree with him on the issue of Article 14. That said, the substantive part of the judgment, as a whole, is well-crafted, tightly reasoned, and rigorously argued (even though one may disagree with parts of it). It is a judgment that repays close study, and is a worthy addition to our constitutional tradition.

(In the next post, Justice Singh’s analysis of the punishment provisions will be discussed in a guest essay)

* This was pointed out to me in conversation by Jawahar Raja.

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Directive Principles of State Policy: An Analytical Approach – VI: Limiting Principles and Conclusion

S0 far, we have argued that the Directive Principles of State Policy ought to play a role as structuring values, which give concrete meaning to the abstractly-worded fundamental rights in Part III. But in that case, is there any difference that now remains between fundamental rights and directive principles, one may well ask – apart from the fact that laws cannot be struck down for violating the DPSPs? The Court answered that question in its 1982 case of Ranjan Dwivedi v. Union of India, well into the heyday of the Directive Principles era. Article 39A mandated the State to provide equal justice and free legal aid. In Ranajn Dwivedi, the petitioner’s claim to a State-paid counsel engaged at a fees commensurate with the fees the State was paying to its own counsel was rejected, the Court holding that:

“As is clear from the terms of Art. 39A, the social objective of equal justice and free legal aid has to be implemented by suitable legislation or by formulating schemes for free legal aid. The remedy of the petitioner, if any, lies by way of making an application before the learned Additional Sessions Judge.”

 In other words, the Court understood that shaping the State’s fiscal policy was most definitely beyond its remit. A similar set of concerns guided the Court’s decision in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan. In that case, the Court invoked Articles 38, 39 and 46 to read into the right to life the right to shelter, and a correlative constitutional duty upon State instrumentalities to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over [indigent persons’] heads to make the right to life meaningful, effective and fruitful.” In the same breath, however, it also held that courts cannot give direction to implement the scheme with a particular budget as it being the executive function of the local bodies and the State to evolve their annual budget.” Thus, the Directive Principles played a structuring role in determining the contours of the right to life under Article 21, but insofar as enforcement of that right appeared to require decisions that, according to classical separation of powers models, belong to the legislative or executive branches, the Court said, thus far and no further.

This primarily institutional concern is reflected most vividly in the history of the right to education through the 1990s and the 2000s. In a series of cases such as Mohini Jain and Unnikrishnan v. State of AP, the Court invoked the Directive Principles to read into Article 21’s guarantee of a right to life, a right to education as well – but conspicuously refrained from going any further into an issue that would have profound economic and social implications, not to mention a massive reorientation of budgetary priorities. Eventually, it was the legislature that amended the Constitution to introduce Article 21A, codifying the right to education; and the Court’s task was to uphold the validity of legislation passed under that provision that imposed certain economic burdens upon private schools.

Conclusion

It has now become almost routine for the Supreme Court to invoke Part IV in its decisions – as routine as Articles 14 and 21. With the increasing role of the Directive Principles, the need for judicial discipline cannot be overstated. If the DPSPs are interpreted to mean everything, then they will end up meaning nothing. This series of posts has attempted to use constitutional text, history, precedent and philosophy to tether the DPSPs to a firm conceptual foundation, offering both a faithful description of existing practice, as well as prescriptive recommendations for the road ahead.

The Directive Principles, I have argued, serve three distinct roles in judicial interpretation. First, legislation enacted in service of the Directive Principles meets the “public interest” threshold in a fundamental rights challenge (importantly, its reasonableness must then be examined, and not on the touchstone of the Directive Principles). Secondly, if legislation is intelligibly susceptible to more than one interpretation, then the meaning that corresponds more closely to the DPSPs is to be preferred over others (although, as we discussed, the Court is yet to clarify the standard applicable to this enquiry). And thirdly, the DPSPs play a structuring role in selecting the specific conceptions that are the concrete manifestations of the abstract concepts embodied in the fundamental rights chapter. This is the best way to understand the Court’s dictum that fundamental rights “ought to be interpreted in light of the DPSPs.” There is thus a clearly delineated role for the Directive Principles in constitutional analysis.

The limits to this role are twofold: first, the Court may not strike down legislation for non-compliance with the DPSPs; and secondly, the Court may not incorporate the DPSPs to a point that requires it stepping outside its designated role under classical separation of powers theory – making policy choices and budgetary allocations (of course, the Court has not shrunk from this role more generally).

Such an approach, I suggest – although complex – is both intellectually defensible, and constitutionally faithful. Importantly, it ensures against the judicial drift that has blighted Articles 14 and 21, and is threatening to blight Part IV, with its recent, indiscriminate usage. Only time will tell, however, whether the Court follows this path.

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Directive Principles of State Policy: An Analytical Approach – V: Framework Values in Operation

As discussed in the last essay, interpreting the DPSPs as framework values within which the nature and scope of Part III rights are determined, is perhaps the best way of understanding – and intellectually grounding – the Court’s approach that Mr. Seervai finds so unpalatable. In a series of cases, from Kesavananda Bharati through Minerva Mills and beyond, the Court has called for a “harmonious construction” of Parts III and IV, and regularly cited Granville Austin to observe that Parts III and IV “are complementary and supplementary” to each other, followed by vague pronouncements that leave it entirely unclear how this harmonizing is done, and what basis it has. If we view harmonizing as the Directive Principles providing the structural foundation within which fundamental rights are understood, it is not only one way of understanding what the Courts are doing, but also – as we have seen above – grounded in both text and history.

Although we have traced this interpretive approach to N.M. Thomas, we find glimpses of it throughout the Court’s jurisprudence. In his concurring opinion in Re Kerala Education Bill, for instance, Justice Aiyer refused to find a right to State recognition in minority educational institutions under Article 30(1) as implicit in the right to establish minority institutions, on the ground that this would make Article 45 redundant. Justice Aiyer was very clear that the question was not about a conflict between Article 30(1) and Article 45, and which was subordinate to the other. Rather, the question was about the content of the Article 30(1) right, whose determination was informed by Article 45.

 We can also find the argument in cases after N.M. Thomas. In Randhir Singh v. State of UP, the question was whether different pay-scales for drivers working in different departments violated Articles 14 and 16. Invoking Article 39(d) – equal pay for equal work, the Court held:

“Construing Articles 14 and 16 in the light of the Preamble and Art. 39(d) we are of the view that the principle ‘Equal pay for Equal work’ is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do identical work under the same employer.

This is precisely the kind of reasoning we have discussed above. The Court invokes the Directive Principles to understand what equality under our Constitution truly means, in concrete circumstances; that is, in this case, it is the Part IV commitment to equal pay for equal work that informs the understanding of the Court that a distinction in pay for similar work is precisely the kind of arbitrary/irrational classification that amounts to unequal treatment under Article 14. A similar argument was echoed in Atam Prakash v. State of Haryana, where the Court referred to the Preamble and the Directive Principles to examine whether a particular classification was legitimate under Article 14.

Interestingly, the argument made by the Court in N.M. Thomas, Randhir Singh and Atam Prakash had been anticipated as far back as 1973, in the context of Article 19(1)(a). In Bennett Coleman the Court held that the government was not permitted, under 19(1)(a), to impose restrictions upon big newspapers in an attempt to equalize market conditions and facilitate the entry of new players into the marketplace of ideas, who wouldn’t otherwise be able to compete. In so doing, the Court adopted a particular individualistic, liberal theory of free speech that rendered constitutionally irrelevant the economic conditions that limited access to the existing means of effective communication of ideas in society, such as newspapers, television etc., all of which require a substantial resource base. Justice Mathew’s dissent invoked the Principles to argue against this conception, and advocate an alternative vision of free speech that refused to separate the freedom of expression from the economic and social conditions that defined and shaped it in a liberal-capitalist society. He held:

“… any theory of freedom of expression must take into account… the right of the public to education arising from the affirmative duty cast on the Government by the directive principles to educate the people, apart from the right of the community to read and be informed arising under the theory of the freedom of speech itself.”

Justice Mathew’s rejection of free speech as an individual right of non-interference, in favour of it being a social good characterized by principles of equal access, was grounded in the DPSPs, much like N.M. Thomas’ changed vision of equality. And twenty years after Bennett Coleman, in LIC v. Manubhai D. Shah, the Supreme Court, in holding that Article 19(1)(a) required a having a right to reply, even for an in-house journal, in order to ensure complete information, essentially accepted the free-speech-as-a-social-good approach. Although the LIC court did not expressly cite Part IV, the implications are obvious, when it held that fundamental rights were broadly  phrased, as abstract concepts, precisely so that Courts could ground them and give them meaning in accordance the socio-economic goals found elsewhere in the Constitution (which, obviously, would be the Preamble and Part IV):

“[The framers] had themselves made provisions in the Constitution to bring about a socio-economic transformation. That being so, it is reasonable to infer that the Constitution makers employed a broad phraseology while drafting the fundamental rights…”

Similarly, in Bandhua Mukti Morcha, the Court referred to Articles 39(d) and (e), 41 and 42 to infuse substantive content into the dignitarian principle underlying Article 21’s guarantee of the right to life – and many of the substantive rights that the Court was to subsequently read into Article 21 were located within this dignitarian foundation. In Olga Tellis, used the same technique (relying upon Articles 39(a) and 41) to read in a right to livelihood under the right to life. In Nashirwar v. State of MP, the Court invoked the Directive Principles dealing with prohibition to infuse moral content into Article 19(1)(g)’s freedom of trade: the right to freedom of trade itself was held not to include activities of a res extra commercium nature such as trade in alcohol. And as recently as 2014, it invoked Articles 39(e) and (f) to hold the right to a safe and healthy environment was part of the right to life.

In sum, therefore: We have seen how the Directive Principles have structured the application of equality under 14-15-16, free expression under 19(1)(a), freedom of trade under 19(1)(g), and life under Article 21, helping the Courts to select what conceptions, our of a number of available (and conflicting) ones, all consistent with the abstract concepts of equality, speech etc., are concretely required by the Constitution.

But doesn’t this approach, it might be objected, render fundamental rights utterly subordinate to the Directive Principles? We are, after all, arguing for the Directive Principles playing a role in ascertaining the very content of fundamental rights. It is important to understand that this is not so. The Directive Principles, we have argued, inform the content of fundamental rights; they do not determine them. The fundamental rights continue to embody concepts, and concepts themselves not only have determinate meaning, but also have core, paradigm cases that any conception must respect and account for. To invoke an old chestnut: H.L.A. Hart’s famous “No vehicles in the Park” rule has its penumbra of doubt in the case of bicycles and toy trucks, where the decision might go either way without necessarily being right or wrong, but it also has its core of certainty that definitively proscribes buses and tractors. Similarly, the Directive Principles might tell us which conception of equality the Constitution subscribes to, as they did in N.M. Thomas, but they can only do so within the bounds allowed by the concept of equality.

The tortured history of Articles 31A and 31C seem to bear this out. 31A, aimed at land reform, was inserted into the Constitution following a series of Article 14 challenges to land legislation. 31A bars an Article 14 challenge to laws – inter alia – authorizing the acquisition of any estate, taking over the management of any property, and so on. Although the Amendment itself – historically – was necessitated by a particularly doctrinaire interpretation of equality by the early Court, it is also obvious that its provisions are broad enough for land legislation that might be difficult to justify on most conceptions of equality, even those shaped by the Directive Principles – hence the need for the protection of a constitutional amendment. Similarly, 31C insulated any law aimed at giving effect to anything in Part IV from a 14 or 19 challenge – clearly indicating that it is possible for Part IV-grounded laws to violate fundamental rights (hence, the need for an amendment to insulate them). This understanding, at least partially motivates the Court’s 2005 opinion in State of Gujarat v. Mirzapur Moti Kasab Jamat, another cow-slaughter case. There, the Court observed:

A restriction placed on any Fundamental Right, aimed at securing Directive Principles will be held as reasonable and hence intra vires [as long as] it does not run in clear conflict with the fundamental right…

In light of our discussion above, I suggest that “clear conflict” is best understood as implying the settled, indisputable central (or minimum) core of any concept (such as equality, free speech, freedom of conscience etc.) that conceptions cannot violate if they are to be conceptions of that concept in the first place. The Directive Principles are structuring values, but they themselves operate within a web of constraints determined by the very concepts (located in Part III) whose underlying structure they must provide.

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Directive Principles of State Policy: An Analytical Approach – IV: The DSPSs as Framework Values

In the previous post, we saw how in the 60s and 70s, the Court gradually chipped away at its earlier jurisprudence: beginning with making the Principles constitutionally relevant, and then erasing their subordinate status to the fundamental rights. The consequences of these two moves are crucial. Before we examine the cases, however, a brief digression into political philosophy is apposite.

It hardly needs repeating that Bills of Rights are framed in abstract language, laying down broad principles and concepts rather than concrete conceptions. Take the classic example of “freedom”. Everyone agrees that if I am locked up in a room, my freedom is curtailed. Everyone also agrees that my inability to fly unaided is a limitation upon my actions, but not an infringement upon my freedom. My body structure and the forces of gravity, which combine to render it impossible for me to fly, are simply background conditions that structure the world in which we all live. But now consider this: my lack of money bars my access to goods and services that I otherwise want or need. Is this a violation of my freedom? The philosopher Friedrich Hayek would answer in the negative, holding that only the intentional actions of individuals – and not the impersonal workings of the market – can constitute restrictions upon liberty. G.A. Cohen, on the other hand, would argue precisely the opposite. What, then, are we to make of a constitutional clause that promises freedom? Does it embody Cohen’s vision – and thus, potentially, place an obligation upon the State to provide adequate social security – or does it embody Hayek’s vision – placing no such obligation? Or another vision altogether? To answer this question, naturally, we must investigate the basic values that underlie the Constitution in question, and going beyond that, the political, economic and social values that structure the polity that has adopted that Constitution.

The result of the Indian Supreme Court’s twenty-year incremental approach to the Directive Principles brought it to a point, I argue, where the Directive Principles finally came to assume the role of these structuring values. The best example is State of Kerala v. NM Thomas. In order to understand what was at stake in NM Thomas, recall the judgment in Champakam Dorairajanin 1951. The government’s affirmative action program for admissions to medical and engineering colleges was struck down on Article 15 grounds, and the state’s reference to the Directive Principles (Article 46) was rejected. That same year, Parliament amended the Constitution to introduce Article 15(4), specifically allowing for affirmative action in educational institutions.

The Court’s judgment, and Parliament’s action, demonstrate a specific vision of equality running through Articles 15 and 16. Let us call this the “colour-blind conception” of equality. This holds that there is a specific harm whenever the State classifies individuals on the basis of their caste, race, sex etc. – because historically, it was these bases that were used to sort people into categories, and determine their worth. Therefore, any distribution of benefits or burdens that classifies us into groups on such grounds, is presumptively suspect. Individuals are to be treated qua individuals, and not as members of groups. That this was the animating vision of the Dorairajan court is evident from the fact that it refused to locate the permissibility of remedial affirmative action within Article 15 itself, and that it required a specific amendment from Parliament to legalise it. Cases after Dorairajan affirmed this view, treating Articles 15(4) and 16(4) as exceptions to the 14-15-16 equality code.

While the colour-blind conception of equality is individual-centric, there is a competing vision. Call it the “group-subordination” vision. This argues that groups have been the locus of historic discrimination. Thus, remedial action must take into account the subordinate status of groups (such as women, or “lower-castes), and governmental policies are perfectly legitimate if they make groups the site of redressing historic discrimination and achieving genuine present-day equality. Article 46, which was cited and dismissed by the Court in Champakam Dorairajan, specifically envisages this conception, when it refers to the interests of the weaker sections of the people.

Under the colour-blind conception of equality, NM Thomas ought to have been an easy case. The question was about the constitutionality of caste-based affirmative action in employment. Article 16 guaranteed the equality of opportunity in employment. Article 16(4) carved out a specific exception for “socially and educationally backward classes.” It was not disputed that caste-based affirmative action was not covered by the 16(4) exception. Surely, then, this was a straightforward equal-opportunities violation. Not so, said the Court. Articles 15(4) and 16(4) were not exceptions to 15(1) and 16(1), but emphatic restatements of it. In other words, remedial affirmative action for certain historically subordinated groups was no longer grounded in 15(4) and 16(4), that specifically provided for it, but implicit within the logic of the Constitutional commitment to equality itself.

What justifies this departure from precedent, and seemingly from the text as well, that speaks of “persons” under Articles 15(1) and 16(1)? The majority doesn’t say, but Justice Mathew and Justice Krishna Iyer, in their concurring opinions, do. According to Justice Mathew:

“…if we want to give equality of opportunity for employment to the members of the Scheduled Castes and Scheduled Tribes, we will have to take note of their social, educational and economic environment. Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the Court… the guarantee of equality, before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal… today, the political theory which acknowledges the obligation of government under Part IV of the Constitution to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a state with obligation to help the weaker sections of its members seems to have increasing influence in Constitutional law.”

This is crucial, because the shift from the precedent-based colour-blind vision of equality to a group-subordination conception is justified by invoking the Directive Principles in general, and Article 46 in particular. Articles 14, 15 and 16 set out the abstract concept of equality. Justice Mathew uses the Directive Principles to decide which conception – colour-blind or group-subordination – is more faithful to the Constitution. It is in this way that the Directive Principles act as structuring values. Thus, as Justice Krishna Iyer observed: “The upshot after Bharati, is that Article 46 has to be given emphatic expression while interpreting Article 16(1) and (2).”

The point is perhaps summed up best by Justice Bhagwati’s partially-dissenting opinion in Minerva Mills:

“Where a law is enacted for giving effect to a Directive Principle in furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the  law, but  it would almost always conform to the principle of equality before the law in its  total magnitude and  dimension…”

Once again, then, it is the directive principles that inform the conception of equality that Articles 14, 15 and 16 only lay out abstractly. More recently, Ashoka Kumar Thakur put the point another way, holding that “the facets of the principle of equality could be altered… to carry out the Directive Principles…”

 The present argument reflects a point first made by Tripathi, long before this jurisprudence came into being. In 1972, Tripathi argued that it is the Supreme Court’s “duty so to discharge its own function of enforcing fundamental rights as not to obstruct the legislature in its respective function of applying the directive principles in the making of laws.” Drawing an analogy with the American Supreme Court’s upholding of President Roosevelt’s extensive New Deal social welfare legislations (despite no express textual peg in the American Constitution on which to hang them), Tripathi understood the Directive Principles to be performing a similar function of mitigating the social evils that spring from a laissez-faire interpretation of formal equality, the right to property and other such civil rights. Indeed, Tripathi saw the abstract wording of Part III rights as an invitation for “judicial creativity”. The aim of this essay has been to demonstrate how such creativity might best be applied in a manner that is most consistent with the text, structure and animating philosophy of the Constitution.

This argument conforms with the three-pronged holistic interpretation of Article 37 that we discussed above. It is consistent with the prohibition on enforcement, while maintaining a place for the Principles in the judicial enquiry, and saving them from redundancy. It also tracks a strain of constitutional thought that was present throughout the late stages of the freedom struggle, up to the framing of the Constitution. In her survey of the primary material, Jayal notes that economic and social rights were understood through the 1930s and 1940s as essential for securing the “meaningful” enjoyment of civil and political rights. In his 1947 Memorandum, Ambedkar specifically argued that political democracy must ensure that an individual is not forced to “relinquish… rights as a condition of receiving a privilege”, and focused on the meaninglessness of civil and political rights to the unemployed, starving and economically powerless. Ergo, even if social and economic rights were not to be made enforceable, there was strong support for the proposition that meaningful civil and political rights could not exist without being conceptualised in a way that took into account socio-economic considerations.

This tempered understanding of socio-economic rights – unenforceable yet relevant – is evident in the Constituent Assembly Debates. Consistent with the role of the principles as structural values, arguments to make them more detailed and specific were repeatedly rejected. For example, an amendment to add the prohibition of monopolies to the Directive Principle prohibiting the concentration of economic wealth did not succeed. K.T. Shah’s proposal to add “socialist” to the Preamble was met with Ambedkar pointing out that the “socialistic direction” of the Constitution was provided by the Directive Principles such as equal pay for equal work, the rejection of the concentration of economic wealth, and so on. Yet perhaps the best evidence of the framers’ intent can be gleaned by Ambedkar’s elaborate speech in defence of the Directive Principles. Ambedkar identified the goal of the Directive Principles as the achievement of “economic democracy”, complementary to “parliamentary democracy, which was the task of the rest of the Constitution. He steadfastly refused to identify economic democracy with a particular economic or political school of thought (notwithstanding his earlier remark about the socialistic direction of Part IV), only referring ambiguously to the principle of “one man, one value”.

Ambedkar’s speech does two things. First, it affirms that there is an animating vision underlying Part IV as a whole, one that is sufficiently abstract so as not to be tied to political and economic –isms, but also sufficiently constraining (through specific provisions such as non-concentration of wealth, equal pay for equal work, and so on). And secondly, if economic democracy and parliamentary democracy are meant to be complementary and of equal importance – as the speech reflects – then the interrelation between Parts III and IV that we have proposed appears to be a seamless integration of the two. Parliamentary democracy is guaranteed by the set of individual rights located in Part III; but the substantive content of those rights – whether equality means colour-blindness or remedying group subordination, for instance; whether the free speech guarantee requires the government to adopt a laissez faire approach or permits it to remedy market inequalities guaranteeing persons an equitable access to the modes of communication (like newspapers) – these questions, that Part III leaves open, are to be resolved by determining what economic democracy under Part IV means, and informing the content of fundamental rights based upon that understanding.

 

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Directive Principles of State Policy: An Analytical Approach – III: The Relationship between Fundamental Rights and Directive Principles

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.

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Directive Principles of State Policy: An analytical approach – II: The Constituent Assembly, Article 37 and the Early Days

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 educationon 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.

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