DIRECTIVE PRINCIPLE OF STATE POLICY PENDULUM STATE OF NATURE

“[India must have a] socio-economic revolution… [to achieve] the real

satisfaction of the fundamental needs of the common man… (and) a

fundamental change in the structure of Indian society.”

--- Sarvepalli

Radhakrishnan1

The Indian Constitution is a live document in a society

rapidly changing and almost frenetically political. The

touchstone for public, and many private, affairs, the

Constitution is employed daily, if not hourly, by

citizens in pursuit of their personal interests or in

their desire to serve the public good. The working of the

Constitution so fully expresses the essentialness of the

seamless web and so completely reveals the society that

adopted it that its study truly is a window into India.

The essence of the democracy and social reform strands is

to be found throughout the Constitution: in the

democratic political institutions and processes of

parliamentary system, in adult suffrage, and in the

independent judiciary; and in Part III and Part IV of the

constitution, which lays down the ‘Fundamental Rights’1 Quoted in Austin, Granville, 1999. WORKING A DEMOCRATIC CONSTITUTION:A History of the Indian Experience, New Delhi, p-11.

and ‘Directive Principle of State Policy’2, the latter

taken from the Irish Constitution. The Rights contain the

well-known negative rights of European and American

Origin and the rights to equality under the law and equal

protection of the law: these were truly revolutionary

provisions in a traditional and hierarchical society that

did not recognize the principle of individual equality,

similarly the Directive Principle of State Policy (from

hereafter DPSP) were to be ‘fundamental in the governance

of the country’, and contained a mixture of social

revolutionary principle along with classical socialist—

and Hindu and Gandhian provisions. Although not

justiciable, unlike rights, they have become yardsticks

for measurement of government successes and failures in

social policy. But having lived more then six decades,

the DPSP is still found to be in state of pendulum, if

not completely kept aside.

The purpose of any

ideal government is to ensure that there will be liberty,

peace, justice and equality, that nation shall no more

lift sword against nation and that the free development

of each will lead to the free development of all. It is

this grand ideal that we have adopted as the end to be

achieved in our Constitution and we decided to achieve

that end only through democratic means. In modern world,

2 The term State in this part of the Constitution means the Government and Parliament of India, the government and legislatures of the States and all Local lawmaking bodies.

however, concepts such as liberty is not, as it is

usually supposed, a single simple conception—it has four

elements—national, personal, political and economic. We

may find the key too many episodes in historical and the

clue to much of the maze of the present times, when

realise that the present controversies and conflict is

not between power and freedom, but between one from of

liberty and another. That is why, checks and counter-

checks are necessary in every department of government—

the executive, the judiciary and the legislative.3 In our

Constitution, we have such checks in form of Fundamental

Rights and we have also laid down the guidelines for the

legislative and state action in the form of the Directive

Principle of State Policy. It is obvious that an

unreasonable interference with a fundamental right would

be void; it is equally obvious that any state action or

legislation which goes against the directive principle

should be ineffective. But the real difficulty arises

when the two seems to be in conflict against each other.

The significant question, which I would like to probe

tends to be—Is there any dichotomy between Rights and

Duties or between the Fundamental Rights and Directive

Principle of State Policy? And how effective or

ineffective the DPSP been in the current state of nature?

More then any part of the Constitution, the Directive

Principle of State Policy has been much misunderstood.

3 Grover, Verinder, (eds) 1989. THE INDIAN CONSTITUTION, Deep & Deep Publication, New Delhi, p 85.

It is on the 29th of April 1947,

Sardar Vallabhai Patel, moved “that the Constitution

Assembly to proceed to take into consideration the

interim report on the subject of Fundamental Rights

submitted by the Advisory Committee appointed by

resolution of the Assembly of the 24th January, 1947. At

the onset he stated—that in considering the question of

fixing the Fundamental Rights and incorporating them into

the constitution the committee came to the conclusion

that the Fundamental Rights should be divided into 2

parts—the first part justiciable and the other part non-

justiciable. Thus we find Part III of our constitution

deals with Fundamental Rights that are meant to be

enforced by a court of law and Part IV deals with the

Directive Principle of State Policy that are not legally

enforceable. This part of our constitution finds a

parallel only in the Irish Constitution and may be

consideration as a code of rules to be followed by the

government in relation to its people. In short, the

Government is instructed to abide by these moral and

economic precepts, but…of Court of Law.”4Speaking in the

Constituent Assembly, Dr Ambedkar had categorically said

that—the Directive Principles were not intended to be

mere pious declaration. They were instead in the nature

of an instrument of instructions and whoever captured

power “will have to respect these”. He said:

4 Dossal, R.S, 1989. Chapter Six, in Verinder Grover, THE INDIAN CONSTITUTION, Deep & Deep Publication, New Delhi, p 121.

“It is the intention of the Assembly that in future

both the legislature and the executive should not merely

pay lip-service to these principles enacted in this part,

but that they should be made the basis of all executive

and legislative action that may be taken hereafter in the

matter of the governance of the country.”5

Looking back to the Objectives, on which DPSP finds its

base, tends to be—(a) Welfare State, (b) Social

Revolution and (c) Emphasizes the Ideals of Preamble. By

welfare state, a progressive feature of the state gets

visualized, that is, in a welfare state; the primary duty

of the Government is to look after the welfare of its

people. By Social Revolution, the DPSP set forth the

humanitarian socialist precepts that were the aims of the

Indian social revolution, i.e. to work for an egalitarian

society. To emphasize the ideals of Preamble, the DPSP

aims to show, that the goal of the Indian polity is not

laissez faire, but a Welfare State, where the State has a

positive duty to ensure to its citizens social and

economic justice and dignity of the individual. In the

words of Justice K.S. Hegde:

“The purpose of the fundamental rights is to create

an egalitarian society, to free all citizens from all

coercion or restriction by society and make liberty

available for all. The purpose of the Directive

5 Kashyap, Subhash.C, 1994. Our Constitution: An Introduction to India’s Constitution and Constitutional Law , National Book Trust, New Delhi, India, p 140.

Principles is to fix certain social and economic goals

for immediate attainment by bringing about a non-violent

social revolution. Through such a social revolution the

Constitution seeks to fulfil the basic needs of the

common man and to change the structure of our society. It

aims at making the Indian masses free in the positive

sense”6

The DPSP can broadly be divided into four parts, from

Articles 36-51, namely, 1) Social Policy Directives, 2)

Principle of Administrative Policy, 3) Socio-Economic

Rights, and 4) Principles of International Policy of the

country. Part IV of the Constitution is designed to

bring about the social and economic revolution that

remained to be fulfilled after independence. Prime

Minister Nehru believed that India’s survival depended on

the achievement of this social and economic revolution.

Moreover he warned, “if one cannot solve this problem

soon, all our paper Constitution will become useless and

purposeless.”7

In order to

appreciate the nature and scope of, and necessity for,

the Directive Principles, and to discover how far these

principles are of a binding nature and not mere pious

hopes, it is necessary to understand the function and

role of law in social welfare state. Both fundamental6 Ibid., p.141.7 Constituent Assembly Debates, Vol.II, p. 1316, as cited in Verinder Grover (eds) 1989, THE INDIAN CONSTITUTION, Deep & Deep Publication, New Delhi, p.87.

rights and directive principles are not the brain child

of any particular individual or group of individuals.

They are mainly the product of history, that is, the

outcome of the clash of ideas and ideals and social

power. The philosophical underlying Parts III and IV was

evolved from the experience of momentous events of the

world in general, and India in particular, during the

past few centuries. Tracing from the hobbesian

understanding of the state of nature, it was found that,

man, everywhere, lived a life which was solitary, poor,

nasty, brutish and short. There were no laws governing

their behaviours, neither were they ruled or were obliged

to obey any authority. The concept of natural right,

dominated much of their livelihood. However with the

passing period of time, laws, in order to protect these

rights and obligation on part of individuals to obey the

authority started evolving and developing. As Hobbes has

observed the function of the laws in these simple

societies was “to define relationships among members of

society, to assert what activities are permitted and what

are ruled out, so as to maintain at least a minimal

integration between the activities of individuals and

groups within the society.”8 But again with the progress

of state and society and changing nature of relationship

in the social structure, laws started to dominate and

fulfil the vested interest of the ruling class. Natural

laws were conceived as overriding law expressing a higher

justice than that was embodied in man-made laws. This8 The Law of Primitive Man, (1954) as cited in Ibid., p.90.

constituted the core of indisputable truth in the

doctrine of natural laws.9 This concept of natural law

played initially a very important role. It formed the

basis of the political movements for attaining individual

liberty and freedom. The American Declaration of rights

is a tangible manifestation to the natural law. It was

opined by Justice K.S Hegde:

“At the dawn of our independence, political thinking,

generally speaking, of the world was proceeding on three

different lines. On the one side we had the teaching of

Marx, Engels and Lenin through which the people were told

that exiting state and the laws are instrument of vested

interest through which they exert their power and hold

over the have-nots…in between the communist and the

capitalistic theories, there were various socialist

doctrines which sought to create benevolent or welfare

states…politically, it is based on democracy and

gradualism. While believing in individual liberty, they

wish to prevent the excesses of the individual’s role in

society by restraining his activities from causing harm

to others and in society as a whole. In effect they want

to put in tangible terms Bentham’s saying “the opulent

9 The concept of Natural Law, as Grotius, in his momentous work MareLiberum asserted that “is so immutable that it cannot be discovered by God himself.” Hart, in his Concept of Law, points out that there are certain fundamental rules which are absolutely necessary if humanbeings are to live together. Laski referring to natural law stated inone of his letters to Justice Holmes—“Natural law is a purely inductive statement of certain minimum conditions we cannot do without if life is to be decent.” Cited in Ibid., p. 91.

few should be prevented from doing injury to the

indigenous many.”10

Moreover:

“The aim of these socialistic theories was to bring

about a welfare state, wherein, not merely the rights of

the individuals were protected but the duty of the

individuals to society was also emphasised. According to

these theories the individual was not to be merely

considerable as bricks and mortar for building up a

state. Rights and duties were to be part of the same

society…”11

However no part of the

constitution has been more misunderstood than Part IV.

Even during the framing of the Constitution doubts were

expressed in the Constitution Assembly that the

directives are no more than mere pious hopes and that

they are likely to remain as high sounding platitudes.

One member of the Assembly observed:

“The Directives were a veritable dustbins of sentiment…

sufficient resilient as to permit any individual of this

house to ride his hobby horse ‘into it”12

Sir Ivor Jennings in his Characteristics of the Constitution

characterised them as ‘pious aspiration’ and also

questioned the utility of Part IV. According to him, Part

10 Hegde, Justice K.S, 1972. The Directive Principle of State Policy in the Constitution of India, THE INSTITUTE OF CONSTITUTIONAL AND PARLIAMENTARY STUDIES, New Delhi, pp.36-37.11 Ibid., p. 38.12 Ibid., p. 44.

IV expressed Fabian socialism without socialism.13 Prof.

Wheare14 has criticised them in stronger terms too.

Nevertheless, their incorporation in the Constitution has

been justified by a consensus of opinion, as well as the

working of the Constitution since independence. Sir

B.N.Rau, who advised the division of the individual

rights into two categories—those which were enforceable

in the courts and those which were not, stated that the

latter class which are known in the Constitution as

‘Directives’ were intended as “moral precepts for the

authorities of the state…they have at least an educative

value”.15 Granville Austin, considered these Directives to

be “aimed at furthering the goal of the social revolution

or…to foster this revolution by establishing the

conditions necessary for its achievement”. He further

explained –“By establishing these positive obligation of

the State, the members of the Constituent Assembly made

it the responsibility of future Indian government to find

a middle way between individual liberty and the public

13 Basu, Dr D.D, 2005. Introduction to the Constitution of India, Wadhwa and Company Law Publishers, New Delhi, p. 148.14 Prof. Wheare said—“When one peruses the terms of these Articles one cannot deny that it would be foolish to allow Courts to concern themselves with these matters…it may be doubted whether there is any gain, on balance, in introducing these paragraphs of generalities into the constitution anywhere at all, if it is intended that the Constitutionshould command the respect as well as affection of the people. If theConstitution is to be taken seriously, the interpretation and fulfilmentof these general objects of policy will raise great difficulties for legislature, and these difficulties will bring the Constitution, the Courts and the legislature into conflict and disrepute. If these declaration are, however, to be treated as ‘words’, they will bring discredit upon the constitution.” Cited in D.D.Basu (2005).15 Basu, Dr D.D, 2005. Introduction to the Constitution of India, Wadhwa and Company Law Publishers, New Delhi, p. 148.

goods, between preserving the property and the privilege

of the few and bestowing benefits on the many in order to

liberate the powers of all men equally for contribution

to the common good.”16

It should be remembered that the Preamble, the Directive

Principle of State Policy and the Fundamental Rights are

the part of the same Constitutional edifice. Part III and

IV, together constitute the sole of the Constitution, but

at times there did generate some strife between the

rights of the individual and duty of the state, and also

on the issue of justiciable and non-justiciable part of

the Constitution.

The Indian

Constitution recognizes not only the traditional rights

to civil and political liberties but also the moral

rights to an adequate means of livelihood, the right to

work, to education, and to public assistance in case of

unemployment, old age, sickness, and disablement. In

short there is an explicit recognition of socio-economic

rights in the Constitution. However, as in the Irish

Constitution, most of the traditional, civil and

political rights are made justiciable and socio-economic

rights are not. Theses latter rights, as we all know,

were made part of the section entitled the Directive

Principle of State Policy. A question, however one needs

16 Basu, Dr D.D, 2005. Introduction to the Constitution of India, Wadhwa and Company Law Publishers, New Delhi, pp. 148-149.

to ask—why were these rights also not constitutionally

entrenched? Why, given their importance, particularly in

developing countries such as India, are they still

subject to the ordinary process of legislation? Providing

answer to this, Rajeev Bhargava, brings into forefront

three arguments against the constitutionalization of

socio-economic rights—firstly, the most important one is

that socio-economic rights make demands on scares

resources, while civil and political rights do not. But

how justified is this assumption? Is it true that where

scare resources are not involved, conflict is avoided and

that therefore, while conflicts are at the heart of

socio-economic rights, civil and political rights are

free of such conflicts. This is hardly the case. As my

point about the value conflict made clear, the right to

freedom of expression may conflict with the right to

privacy. Similarly the individual right to freedom of

conscience may conflict with the collective rights of a

religious group to autonomous religious practises. None

of these are conflict over material resources, yet hardly

denied such conflicts exist. If despite these conflicts,

we can constitutionally entrench civil and political

rights, why single out socio-economic rights for non-

justiciable status on the ground that they are inherently

conflictual? Secondly, unlike civil and political rights,

these rights demand state action. On this view, civil and

political liberties set limits on the power of the

governments but do not demand that the state do

something. However, this argument is specious. It is

simply not true to say that civil and political rights

make no demands on the state. For example right to vote.

Thought it’s a political right, but it also requires that

the state hold free and fair elections. Thirdly, socio-

economic rights can be exercised only if the state spends

a vast amount of resources, which is simply not available

at its disposal. Now this view misreads the content of

many of these rights. For example, the right in question

is not an untitled right to any type of education or to

any type of healthcare or standard of living. The rights

in question ensure a minimum level of decent existence.

The resources needed for this can and should be available

to public agencies. In short, I am not entirely convinced

that such rights should remain non-justiciable.17

One of the very common

impression of the Indian Constitution is also that it is

an ‘interventionist’ document, while referring to the

Directive Principle of State Policy. Thus, one of the ex-

judge of a high court, and latter Rajya Sabha Member,

forcefully argued—‘it is apparent from directive

principles that the founding fathers were no believers in

the laissez faire state. Clearly they were visualizing an

interventionist state…for them the state was an

organization which should help its citizens to be free,

17 Bhargava, Rajeev (Eds), 2008. Politics and Ethics of the Indian Constitution, Oxford University Press, New Delhi, pp.34-35.

rational and happy with well-marked zones of privacy…’18

it was henceforth assumed that an enthusiastic reading of

Directive Principle prompts the ‘interventionist’

interpretation. If were to go back to Masani’s concerned

mentioned above, argued Suhas Palshikar, the result

appears to be more in the form of a compromise where

extremes are avoided and a golden mean stuck. In order to

better understand the nature of this ‘compromise and

complexity’, argued Palshikar, we need to remember that

there were no clear-cut factions of individualists and

collectivist. The complexity of the result lies in the

fact that although many members were not convinced of the

need to give primacy to interventionalism, they

nevertheless accepted the need to vest the state with

impressive powers. The most common justification for this

was the desire that India should be able to handle

internal tensions. The Constituent Assembly wanted to

have a strong state, capable of sustaining itself against

all odds. Leaving aside the role of the state in shaping

society, the assembly visualised a strong state. This

near-instinctive argued Palshikar was justified by

Nehru’s belief that a strong state was necessary for

planned development. The main inconsistency among the

somewhat overlapping notions of state emerging from these

may be located between liberal democratic state and

welfare state. At this stage it was possible to argue

18 Palshikar, Suhas, The Indian State: Constitution and Beyond, in Rajeev Bhargava (Eds) 2008. . Politics and Ethics of the Indian Constitution, Oxford University Press, New Delhi, pp. 147-148.

that the welfare state was in fact a Western liberal

democratic response to the Marxist ideology. Hence there

was no conflict as such between the two. But in the

making of the Constitution, we find that the founding

father and mother did perceive a tension between these

two. In fact, the Constitutional advisor, B.N.Rau, gave

expression to the then prevailing wisdom on this subject.

While vigorously pursuing the idea that some rights

depend upon ‘positive action’ by the state, Rau proposed

that there may be a mention of fundamental principle of

state policy.19 This arrangement implied that liberal

democracy would be the legal basis of the state, while

welfare would supply the ‘non-justiciable’ politico-

ideological basis of the state. The state was allowed and

enabled to make ‘positive action’ but it was left with

the state to define the scope of such positive action. It

was believed that no one could ignore the Directive

Principle because the electorate would insist on their

implementation. In any case, this arrangement is curious

and awkward. Curious, because the state is handed down

with a mandate which is optical as far as its

implementation goes; and awkward because, in the ultimate

analysis, this arrangement provided a legitimating

ideology to the state on the cone hand and on the other a

space for curtailing individual rights in the name of

welfare policies, something that happened during the mid-

1970s. The state could not get away with delegitimation

19Ibid., p.149.

of these rights without bringing about substantive

welfare, argues Suhas Palshikar.

There did

exist certain understanding that there is no essential

dichotomy between the Fundamental Rights and Directive

Principle of State policy or between Rights and Duties,

to the extend that both complement and supplement each

other. However, while moving for the reference of the

Constitution (first) Amendment Bill, 1951 to a Select

Committee, Jawaharlal Nehru referred to the possibility

of conflict between the two and explained the difficulty

thus:

“The real difficulty which has come before us is

this: The Constitution lays down certain Directive

Principle of State Policy and after long discussion we

agreed to them and they point out the ways we have got to

travel. The Constitution also lays down certain

Fundamental Rights represent something static, to

preserve certain rights which exist. Both again are

right. But somehow and sometime it might happens that the

dynamic movement and that static standstill do not quite

fit into each other… a dynamic movement towards a certain

objective necessarily means certain changes taking place:

that is the essence of movement…there is a certain

conflict in the two approaches, not inherently, because

that was not meant, I am quite sure. But there is that

slight difficulty and naturally when the courts of the

land have to consider these matters they have to lay

stress more on the Fundamental Rights than on the

Directive Principles of State Policy. The result is that

the whole purpose behind the Constitution, which was

meant to be a dynamic Constitution leading to a certain

goal step by step, is somewhat hampered and hindered by

the static element being emphasised a little more than

the dynamic element and we have to find out some way of

solving it ”20

Again, while speaking on the Constitution Fourth

Amendment in the Lok Sabha, Nehru declared that the

responsibility for the economic and social welfare

policies of the nation should lie with Parliament and not

with the courts. In so far, if there lays any

contradiction between the Part III and IV of the

Constitution, it was for the Parliament to remove the

contradiction and “make Fundamental Rights subserve the

Directive Principle of State Policy”. However, there was

this change in subservient question, as who will be

subserved under whom, especially after coming of Mrs.

Indira Gandhi. Amending the Constitution in pursuit of

the social revolution was the domestic political motif of

1971. Furious debate surrounds essential constitutional

issues of personal liberty and the public goods and

constituent powers. Beliefs in the institutions and20 Kashyap, Subhash.C, 1994. Our Constitution: An Introduction to India’s Constitution and Constitutional Law, National Book Trust, New Delhi, India, pp. 145-146.

processes of representative government were tested. On

March 18, Mrs Gandhi appointed H.R.Gokhale her law

minister and the framing of the promised amendments

began. Six ideas21 for carrying out the congress’s well-

advertised intentions were afloat in the political and

intellectual currents at the time. All these ideas were

framed on the lines of Nath Pai Bill, to overcome the

intrenchment of the fundamental rights by the Golak Nath

decision. Among them, was the idea, that the socialist

promises of the Directive Principles should be fulfilled

by giving the principles precedence over rights, even

though the Constituent Amendments has made it non-

justiciable. On this line, two significant amendments

were brought about- 24th and 25th Amendments in year 1971.

The twenty-fifth Amendments (1971) took to radical

lengths the idea that the Directive Principles should

have precedence over the Fundamental Rights. It inserted

a new, two-part article into the Constitution (Article

31C), the first part of which said that no law giving

effect to certain of the DPSP should be void on the21 First, Parliamentary Supremacy should be restored;Second, the property rights (especially Article 31) should be amendedto keep the courts away from the property acquisitions and compensation issues;Third, ‘property’ should be taken entirely out of the Fundamental Rights;Fourth, the socialist promises of the Directive Principles be fulfilled by giving it precedence over the Rights;Fifth, the princes’ privileges and privy purses were to be abolished;and Sixth, the perquisites of retirees from the ‘Secretary of State Service’ of the colonial period, the most prominent of which was the Indian Civil Service were to be abolished. In Austin, Granville, 1999. WORKING A DEMOCRATIC CONSTITUTION: A History of the Indian Experience, New Delhi, pp-236-237.

ground that of inconsistency with several articles in the

Fundamental Rights. More radically, the second part

provided that no law declaring its intent to be

fulfilment of the Principles (Article 39(b) and (c))22

could be questioned in court ‘on ground that it does not

give effect to such policy’. The Fundamental Rights

Articles 14, 1923 and the property terms of Article 31

were to be made subordinate to the two most classically

socialist of the DPSP, and category of legislation placed

beyond judicial review. The Article 31 was inserted to

make possible the nationalization or the taking under

pubic management and control, of all means of production,

key industries, mines, miners, public supplies and

services. However, the second part, which has been

declared unconstitutional by the Supreme Court sought to

oust the jurisdiction of the court to find out whether a

law sought to be protected under Article 31C really gives

effects to the principles in Article 39(b) and (c). Among

22 Article 39 (b)—that the ownership and control of the material resources of the community are so distributed as best to subserve thecommon good. Article 39 (c)—that the operation of the economic system does notresult in the concentration of wealth and means of production to the common detriment.23 Article 14—Equality before law—the state shall not deny to any person equality before law or the equal protection of the laws withinthe territory of India. Article 19—Protection of certain rights regarding freedom—all citizens shall have the right:(a) to freedom of speech and expression;(b) to assemble peaceably and without arms;(c) to form association or unions;(d) to move freely throughout the territory of India;(e) to reside and settle in any part of the territory of India; and(f) to practise any profession, or to carry on any occupation,

trade or business.

the varied beliefs and intentions of the twenty-fourth

and twenty-fifth Amendments’ proponents, several were

commonly held: socialism, both as end and means, was

unquestionably good; the Constitutional’s goal of social

revolution had been ignored; Parliament had to be made

supreme over property-oriented and capricious judiciary.

Though, within

few days, a land mark judgement brought by the

Kesavananda Bharti verse state of Kerela, 1973 had an

outcome which profoundly affected the country’s

democratic processes. The majority judgement—by seven

judges of the thirteen judge bench—overturned the anti-

Parliament, anti-amendment rigidity of the Golak Nath

decision; upheld the constitutionality of the twenty-

fourth and twenty-fifth Amendments (except for the

‘escape clause’ in the latter); but it also ruled that an

amendment could not alter the basic structure of the

Constitution. However, the decision still did not clarify

what it means when it says ‘Basic Structure of the

Constitution’. Moreover, on the question of giving

prominence to DPSP above Fundamental Rights, Justice

Mathew, made the following significant observation:

“The Fundamental Rights themselves have no fixed content;

most of them are mere empty vessels into which each

generation must pour its content in the light of its

experience…whether at a particular moment in the history

of the nation by the moral claims of the nation, a

particular fundamental rights should have priority over

moral claims embodied in Part IV or must yield to them is

a matter which must be left to be decided by each

generation in the light of its experience and its values.

And, if Parliament in its capacity as the amending body,

decides to amend the Constitution in such a way as to

take away or abridge Fundamental Rights to give priority

value to the moral claims embodied in Part IV of the

Constitution, the court cannot adjudge the constitutional

amendment as bad for the reason that what has intended to

be subsidiary by the Constitution-makers has been made

dominant. Judicial review of a constitutional amendment

for the reason that it gives priority value to the moral

claims embodied in Part IV over the Fundamental Rights

embodied in Part III is impermissible”[ 1973 (4) S.C.C.

225].24

However the significance of this Judgement, along with

other Judgments, was political in the sense, its aim was

at the end of the day to establish the supremacy of the

Parliament over Constitution and other section of the

Government, in terms of amending power and more specific

was the intention to establish the authority and power of

the government of the day.

The year 1975, became crucial

in many respect, apart from it being considered the dark

age of the Indian democracy—due to the declared Emergency

by then Prime Minister Mrs Indira Gandhi—the period after

24 Kashyap, Subhash.C, 1994. Our Constitution: An Introduction to India’s Constitution and Constitutional Law , National Book Trust, New Delhi, India, p. 147.

that found the preparing base, in order to bring about

Constitutional change. The most important constitutional

development of the Emergency, other then its very

imposition, was the enactment of the Forty-second

Amendment, 1976. It was in that year, more specifically

on 26th February, Congress President Borooah, appointed a

committee ‘to study the question of amendment of the

Constitution in the light of…experience’.25 Commonly

referred to as the Swaran Singh Committee after its

chairmen, the committed had two other, unannounced

purposes: to manage the proliferation suggestions for

amendment and to control the process for considering

them, and, while doing this, to serve the Prime

Minister’s interest. Among the several recommendations,

the committee’s most radical move against the courts came

in its recommendation that Article 31C be expanded so

that legislation to implement any of the Directive

Principle of State Policy could not be questioned in

court as infringing the Fundamental Rights. The Dean of

the Law Faculty at Delhi University, Upendra Baxi,

thought that making Rights subservient to the Principles

was ‘as it should be in a poor society with massive

maldistribution of property, income and wealth’.26 This

recommendation was later adopted in the forty-second

25 Austin, Granville, 1999. WORKING A DEMOCRATIC CONSTITUTION: A History of the Indian Experience, New Delhi, p-353.

26 A commentary on the committee’s report, Baxi’s paper was published in 1976 (2) SCC Journal Section 17-28. Baxi also praised the committee’s ‘solitude for judicial review, fundamental rights and forthe Supreme Court. In Ibid., p-360.

Amendment Act 1976. The Supreme Court, however, has

resisted that extension in its famous Minerva Mills Case,

1980. The case revolved around the clause 4 and 55 of the

Forty-second Amendment Act. Counsel N.A.Palkhivala, posed

the question, “whether the provisions of the Forty-second

amendment…which deprived the Fundamental Rights of their

supremacy…are ultra virus the amending power of

Parliament.”27 He (Palkhivala) said that Article 31C, by

prohibiting a challenge to laws made under the DPSP, was

constitutionally bad beyond issues of property, and that

the Forty-second Amendment’s changes to the amending

power, by making Parliament’s power boundless, overruled

the court’s decision establishing the basic structure

doctrine in the Kesavananda and Indira Gandhi election

cases. These clauses, said Palkhivala, were “the

impertinence of those in power” and the philosophy

underlying Article 31C “is the very quintessence of

authoritarianism”.28 Nearly six month after the hearing

ended the court on 9th may 1980, handed down its first

orders in the Minerva Mills case. Turning to the

amendment’s expansion of Article 31C, as part of clause 4

of the Forty-second Amendment, the court said that the

DPSP were vitally important, but to destroy the

Fundamental Rights purportedly to achieve the Principles

was to subvert the Constitution. Section 4 of the Forty-

second Amendment abrogated Articles 14, 19, and 2129 and27 Ibid., p-499.28 Ibid., pp-499-500.29 Article 21—Protection of life and liberty—no person shall be deprived of his life or personal liberty except according to

the court could not allow the balance between the Rights

and Principles to be destroyed. The decision could not

repeal Article 31C as expanded by the Forty-second

Amendment nor delete it from the Constitution. It remains

in the Constitution today, technically unrepealed, but

‘all the cases under it are being describe as it was

before that amendment’.30 The latest view of the Supreme

Court is that Part IV and Pat III of the Constitution are

complementary to each other, one being read in the

colours of the others.

Henceforth all these, mentioned above clearly shows, in

what state of nature has been the Directive Principle of

State Policy since independence. This dichotomy between

‘Rights’ and ‘Duties’ or DPSP and Fundamental Rights, had

have always remained in Pendulum state of nature. A

distinction is sometimes sought to be made between what

may be called ‘positive rights’ and ‘negative rights’.

Broadly speaking, while Part III deals with areas of

individual freedom and the extent to which the State can

restrain it, Part IV deals with positive duties cast upon

the State to attain the ideal of social and economic

justice. However, it would not be an easy task to survey

the progress made by the Government of the Union and the

procedure establish by law.30 Shukla, V. N, Official editions of the Constitution published after Minerva Mills decision carry a footnote that in Kesavananda theSupreme Court held the ‘escape clause’ invalid, cited in Austin, Granville, 1999. WORKING A DEMOCRATIC CONSTITUTION: A History of the Indian Experience, New Delhi, p-504.

States in implementing such a large number of Directives

over a period of Six decades since the promulgation of

the Constitution. Nevertheless, a brief reference to

some of the outstanding achievements may be made in order

to illustrate that the Directives have not been taken by

the Government in Power as pious homilies, as was

supposed by many when they were engrafted in the

Constitution. Achievements in terms of bring Panchayati

Raj institution through 73rd and 74th Amendments, Right to

Education, NREGA in terms of providing employment and

many more. However, its success depends more on results

rather then merely implications.

At last we can conclude by saying that, while the

Constitution has laid down that the state shall strive to

promote the welfare of the people by securing and

protecting, as effective as it may, a social order in

which justice, social, economic and political, shall

inform all the institutions of the national life, it has

also prescribed the method by which the social order

contemplated should be achieved. Our Constitution

proceeds on the basis that just ends must be secured by

just means. It does not concentrate the theory the end

justifies the means. Under our Constitution it is

permissible to take steps to avoid concentration of

wealth or even means of production. This could be done in

variety of ways. But steps taken should not discriminate

against any particular class. Sacrifices that the state

calls upon its citizens to make for social good must be

equitable. There should be no favoured class. A just

social order cannot be built up by any society if it is

corrupt. And no amount of sacrifice can build a welfare

state unless there is efficient and honest

administration. After all, a country is what its people

make it and not what its Constitution prescribes. Our

Constitution has not failed us, what is necessary is that

we should measure up to its expectations.

BIBLIOGRAPHY

Austin, Granville, 1999. WORKING A DEMOCATIC CONSTITUTION:

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Bhargava, Rajeev (eds) 2008, Politics and Ethics of the Indian

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Basu, Dr.Durga Dutt, 2005. Introduction to the Constitution of

India, New Delhi: Wadhwa and Company Law Publishers.

Grover, Verinder (eds) 1989, THE INDIAN CONSTITUTION, New

Delhi: Deep & Deep Publication.

Hegde, Justice K.S, 1972. The Directive Principle of State Policy in

the Constitution of India, New Delhi: THE INSTITUTE OF

CONSTITUTIONAL AND PARLIAMENTARY STUDIES.

Kashyap, Subhash.C, 1994. Our Constitution: An Introduction to

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Kashyap, Subhash.C, 2010. Indian Constitution: Conflicts and

Controversies, New Delhi, Vitasta Publishing Pvt.Ltd.