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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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The Directive Principles of State Policy: An Analytical Approach – I: Conceptual Foundations

Part IV of the Constitution – containing the Directive Principles of State Policy (DPSPs) – has enjoyed a checkered history. Framed as a set of non-enforceable political prescriptions that the State has a “duty” to apply in the making of laws, it began life in the 1950s completely sidelined by the Courts. In 2014, however, virtually every socially-oriented constitutional or statutory judgment (and most Part III judgments as well) of the Courts contains an obligatory reference to the DPSPs. Quite often, this invocation is mere window-dressing, and doesn’t actually turn the case one way or another. Equally, there are times when it is clear that the DPSPs are playing an important role in the outcome of a case. The somewhat cavalier manner with which the Courts treat the DPSPs bears obvious similarities with Article 21: a boundlessly wide tent, floating untethered from the text and structure of the Constitution, which can accommodate whatever transitory judicial preference of a particular bench on a particular day.

Admittedly, it is too late in the day to go back to the position that Mr. Seervai advocated rather persuasively: the DPSPs, explicitly stated to be non-enforceable, ought to play no role whatsoever in constitutional adjudication. Given that they play some role, however, how ought they to be understood in a way that maintains fidelity to the Constitutional text and structure, and explains precedent adequately? In this series of posts, we will attempt to reconstruct the Supreme Court’s DPSP jurisprudence in a way that answers to those concerns.

A quick look at Part IV suggests a conundrum for interpreters. There seems to be no coherent principle that undergirds and explains the place of the DPSPs in the constitutional scheme. Social-democratic prescriptions about equitable sharing of natural resources and equal pay for equal work rub shoulders with the uniform civil code and the prohibition of cow slaughter. A reading of the Constituent Assembly Debates indicates that often, a principle that the framers were divided over, one which could not carry enough support in the Assembly to become a fundamental right, was relegated to Part IV as a way of appeasing its proponents.

This explains much. Over time, however, by focusing on some of the DPSPs to the exclusion of others (especially Articles 38 and 39), the Courts (primarily basing themselves upon Granville Austin’s image of the two wheels of a chariot), have imposed a pattern upon the seemingly haphazard DPSPs. They have theorised that Part IV comprises of “goals”, and Part III contains “rights” that the government must respect in pursuit of its goals (Kesavananda Bharati is perhaps the most famous case that posits this theory). This – according to the Courts – is the a priori distinction between Part III and Part IV, which ought to inform the judicial approach to issues involving fundamental rights and DPSPs.

In its own way, it is a familiar distinction. For instance, Ronald Dworkin argues that goals are particular end-states in the distribution of resources, while a right is something that the government is not permitted to infringe in its pursuit of its chosen goals. Yet the distinction is question-begging. What makes something a right or a goal? As Dworkin himself observes (see his Taking Rights Seriously), it depends on the constitutional scheme and the legal framework of the polity in question. Providing adequate nutrition to all its citizens can be framed as a goal, but it can equally well be framed as an individual right to food or health (and the South African Constitution does so). The goals/rights, or ends/means distinction, therefore, needs something else to motivate it.

There is another, equally obvious distinction. Part III embodies civil/political (or “first generation” rights), whereas Part IV enshrines socio-economic, second-generation guarantees. Yet this, again, is simply labeling. What is the relevant conceptual difference between these two categories, which would justify treating them differently in a Constitution? The civil/political and socio-economic distinction tracks another, deeper distinction, however, that does have a conceptual history to it: the difference between negative and positive rights.

In political theory, the difference is conceptualized in the following manner: first, negative rights involve freedom from governmental (or private) coercion that would prevent an individual from doing what she is otherwise minded to do; positive rights requires the government to take action in order to provide an individual something she cannot get for herself. Secondly – and relatedly – negative rights do not require policy choices; positive rights, on the other hand, directly implicate economic prioritization and budgetary allocations – i.e. “a broad redistribution of society’s resources”. The first distinction provides a theoretical ground for arguing that only negative rights are rights at all, properly called, since in a free society, the only form of protection that individuals should be entitled to is protection against coercion. The second provides a slightly more practical argument for the proposition that, whether or not socio-economic rights are rights in theory, since they involve the kind of economic and financial balancing that lies within the competence of the government, they ought not to be made available to individuals as enforceable claims in the manner of negative rights.

On a closer analysis, however, both these distinctions break down. It is controversial whether coercion is a meaningful way to separate categories of rights. As Cohen, Sen and others have argued, the distinction is premised on the distinctly non-neutral and ideologically coloured notion of freedom as non-interference. Even conceding that it is, however, so-called negative rights involve as much governmental action as positive rights. The right to property, for instance, is meaningless without an institutional system that involves a police force to prevent trespassing, and a legal structure to punish it when it does happen.

There is another way, furthermore, in which the coercion and action/inaction framework dissolves. Consider Cohen’s famous example: I wish to travel from Place A to Place B, but lack the money to buy a train ticket. I board the train nonetheless, and at some point, after the ticket-collector has found that I do not possess a ticket, the coercive apparatus of the State will be called upon to remove me from the train, and prevent me from traveling to where I want. In this way, Cohen argues, my lack of money violates my freedom of movement, even if freedom is defined strictly as absence of coercion. Poverty, thus, is as much a violation of negative liberty as is the State preventing me from free movement by placing me under house arrest.

The action/inaction dichotomy directly leads into the second alleged distinction: setting up and preserving a legal and institutional regime for the protection of negative liberties clearly involves economic and budgetary policy choices in much the same way as guaranteeing to all persons adequate food, or access to health. Thus, as the ICESCR Committee pointed out, “courts are generally already involved in a considerable range of matters which have important resource implications.” Cecil Fabre’s illustration of how an effective right to vote requires an effective system of voting, which in turn would implicate the government in making choices about allocation of manpower, resources and so on, nicely illustrates the argument. The negative/positive distinction, therefore, is unhelpful and ought to be discarded.

Lastly, it may be argued that positive rights are inherently vague and open-ended, and therefore only fit for resolution through the political process. This objection, however, fails for reasons of under-inclusiveness and over-inclusiveness. Public interest limitations on negative rights, found in Constitutions all over the world, including the Indian, are as open-ended as positive rights. On the other hand, the ESCR’s General Comment 12, on the right to food, is the model of clarity and precision in its definition of the right:

“… the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture.”

Therefore, in purely conceptual terms, there is good reason to deny a stand-alone distinction, independent of the particular framing history of the Indian Constitution, between Parts III and IV. Indeed, the history of the right to education – which moved from the Directive Principles to the Fundamental Rights, becoming Article 21A via a Constitutional amendment at the suggestion of the Courts, suggests the inherent fluidity of the distinction, and lends support to the proposition that, ultimately, the distinction is purely contingent and historical.

Having dealt with a potential red herring – a false dichotomy between negative, civil/political and positive, socio-economic rights – we have now cleared the ground for an investigation into the actual text, structure and drafting history of the DPSPs, and their relationship with fundamental rights, free of the assumptions that Courts have sometimes sought to impose (assumptions that, as we shall see, play little or no role in their actual jurisprudence). This investigation, and the examination of precedent in its light, shall be the subject of the next few posts.

 

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