seminar paper on constitution

7/29/2019 Seminar Paper on Constitution

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DIRECTIVE PRICIPLE OF STATE POLICY AND

JUDICIAL PROCESS

PRASHANT KUMAR VERMA

RISHABH SINGH

1ST YEAR (2ND SEMESTER)

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY


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TABLE OF CONTENT

I. OBJECTIVES

II. INTRODUCTION

III. JUDICIARY WITH SOCIAL SOCOIALIST PRINCIPLE

AND JUDICIARY

IV. CAN JUDICIARY SAVE OR PROTECT GANDHIAN

PRINCIPLE

V. SEPERATION OF JUDICIARY FROM EXECUTIVE

VI. RESULTS AND CONCLUSION


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OBJECTIVES

To study the amendments in part IV of our Indian constitution i.e. 42 nd amendments dealing

with Protection and improvement of environment and safeguarding of forests and wild life inarticle 48-A. Article 45, which ensures Provision for free and compulsory education for

children, was added by the 86th Amendment Act, 2002.

To examine the social action litigation process and judicial restraint in India and the validity

of Gandhian principles in the present India.

To scrutinise article 50 which talks about independence of judiciary from executive and the

village administration in India khap panchayats in north India and katta panchayats in

south India and the related article 40 to it.

To analyse the measures taken by judiciary and government to implement directive principle

of state policy, the State has made many efforts to implement the Directive Principles. The

Programme of Universalisation of Elementary Education and the five year plans has been

accorded the highest priority in order to provide free education to all children up to the age of

14 years. The 86th constitutional amendment of 2002 inserted a new article, Article 21-A,

into the Constitution, that seeks to provide free and compulsory education to all children aged

6 to 14 years. Welfare schemes for the weaker sections are being implemented both by the

Central and state governments. These include programmes such as boy's and

girl's hostels forscheduled classs orscheduled tribes students. The year 1990-1991 was

declared as the "Year of Social Justice" in the memory of B.R Ambedkar.
http://en.wikipedia.org/wiki/Constitution_of_India#amendmentshttp://en.wikipedia.org/wiki/Five-Year_Plans_of_Indiahttp://en.wikipedia.org/wiki/Education_in_Indiahttp://en.wikipedia.org/wiki/Hostelhttp://en.wikipedia.org/wiki/Scheduled_tribeshttp://en.wikipedia.org/wiki/Scheduled_tribeshttp://en.wikipedia.org/wiki/Scheduled_tribeshttp://en.wikipedia.org/wiki/Scheduled_tribeshttp://en.wikipedia.org/wiki/Hostelhttp://en.wikipedia.org/wiki/Education_in_Indiahttp://en.wikipedia.org/wiki/Five-Year_Plans_of_Indiahttp://en.wikipedia.org/wiki/Constitution_of_India#amendments


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I. INTRODUCTION

Directive principles of state policy have created and overseen the evolution of public interest

litigation in India. Directive principles of state policy present a strong defence for public

interest litigation model as an instrument for the delivery of fair and equitable justice,

resistant to governmental apathy as well as economic and social privilege.The concept of PIL is in consonance with the objects enshrined in article 39A of the

constitution to protect and deliver prompt social justice with the help of law. It provides an

account of the evolution of Indias constitutional courts, and particularly the Supreme

Courts, role prior to the emergence of public interest litigation. It discusses the nomenclature

of social action litigation and characterizes its evolution as unique and indigenous,

distinguishable from the practice of public interest law in the United States of America. The

obstacles faced by this radical new form of preserving social and economic rights are also

examined. Supreme Courts approach to increasing access to justice and overcoming these

impediments, especially through procedural innovations such as broadened locus standi and

non adversarial, investigative proceedings using court appointed investigative commissions

and amicus curiae. Even as it recognizes the possibility of misuse of social action litigation, itconcludes with a strident defence of judicial activism and of social action litigation as a

means for bringing the promise of justice to the ordinary and disempowered.

Blessed are they who hunger and thirst for justice, for they

Shall have their fill.

The Eight Beatitudes, the Bible

Directive principles can be a clear statement of social revolution. It helps a country like India

to be a welfare state and not merely a police state.

Judicial process has a very deep link into it. The inclusion of such instruction proposed thatwhoever captures power will not be free to do whatever he likes with it, he cannot ignore

them and shall have to answer for their breach in court of law. But he will certainly have to

answer before the electorate at election time.

The Indian judiciary, especially at the level of the Supreme Court and the High Courts, has

for long been concerned with the concept and practice of justice. What constitutes justice and

for whom? How do we truly achieve the laudable constitutional precepts that no one is

above the law and that all persons are entitled to the equal protection of the law? How do

we cope with the problem that in principle, all persons are equal under the law but in

reality, some are more equal than others?

One of the key features for attaining true justice is by freeing judiciary from the influence of

executive and legislature which is the basic structure of the constitution (article 50).

Separation of judiciary from executive:

The framers of the Constitution did not and could not have meant by a "judicial office" which

did not exist independently and the duties or part of the duties of which could be conferred on

any person whether trained or not in the administration of justice. The Directive Principles as

enshrined in Article 50 of the Constitution, give a mandate that the State shall take steps

to separate the judiciary from the executive which means that there shall be aseparate judicial

service free from the executive control. Chapters V and VI in part VI of the Constitutionprovide for the High Courts and subordinate courts in the State. The scheme under the


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Constitution for establishing an independent judiciary is very clear. The Constitution-scheme,

therefore, only permits members of the judicial service as constituted in terms of Article

236(b) of the Constitution to be considered for the post of District judge and that of the High

Court Judge.

Directive principles of state policy were also framed keeping in mind local administrationand people, in a country like India where most of the people in 1950s as well as in 21st

century still depend on agriculture judicial process should be very smooth and transparent in

village panchayats were most of the people are not aware of their rights. Framers of our

constitution by adding article 40 which advocates for organisation of village panchayats

according to which state shall take steps organise village panchayats and them with such

powers and authority as may be necessary to enable them to function as units of self

government.

Thus, the areas concerns for judiciary in directive principles of state policy are:

Social action litigation (article 39A) Separation of judiciary from executive (article 50)

Uniform code for citizens (article 44) Socio-economic justice (article 38) Gandhian principles (article 40 and 47)

II. JUDICIARY WITH SOCIAL WELFARE

Social welfare comes from the satisfaction of the public; we can relate social welfare to

Benthams theory of maximum happiness. What is Justice? It can have different meaning for

different people but the most common answer is satisfaction, if the individual or the masses

get satisfied from decision made by judiciary they feel that they have got justice.

Beginning with the first few instances in the late-1970s, the category of Public InterestLitigation (PIL) has come to be associated with its own people-friendly procedures. The

foremost change came in the form of the dilution of the requirement of locus standi for

initiating proceedings. Since the intent was to improve access to justice for those who were

otherwise too poor to move the courts or were unaware of their legal entitlements, the Court

allowed actions to be brought on their behalf by social activists and lawyers 1. In numerous

instances, the Court took suo motocognizance of matters involving the abuse of prisoners,

bonded labourers and inmates of mental institutions, through letters addressed to sitting

judges. This practice of initiating proceedings on the basis of letters has now been

streamlined and has come to be described as epistolary jurisdiction.

Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit into theaccepted common-law framework of adversarial litigation. The courtroom dynamics are

substantially different from ordinary civil or criminal appeals. While an adversarial

environment may prevail in cases where actions are brought to highlight administrative

apathy or the governments condonation of abusive practices, in most public interest related

litigation, the judges take on a far more active role in the literal sense as well by posing

questions to the parties as well as exploring solutions. Especially in actions seeking directions

for ensuring governmental accountability or environmental protection, the orientation of the

proceedings is usually more akin to collective problem-solving rather than an acrimonious

contest between the counsels. Since these matters are filed straightaway at the level of the

1Refer: Susan D. Susman, Distant voices in the Courts of India: Transformation of standing in

Public Interest Litigation, 13 Wisconsin International Law Journal57 (Fall 1994)


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Supreme Court or the High Court, the parties do not have a meaningful opportunity to present

evidence on record before the start of the court proceeding. To overcome this problem, our

Courts have developed the practice of appointing fact-finding commissions on a case by-

case basis which are deputed to inquire into the subject-matter of the case and report back to

the Court. These commissions usually consist of experts in the concerned fields or practicing

lawyers. In matters involving complex legal considerations, the Courts also seek the servicesof senior counsels by appointing them as amicus curiae on a case-by-case basis.2

One of the earliest cases of public interest litigation was reported as Hussainara Khatoon v.

State of Bihar3. This case was concerned with a series of articles published in a prominent

newspaper - the Indian Expresswhich exposed the plight of under trial prisoners in the state

of Bihar. A writ petition was filed by an advocate drawing the Courts attention to the

deplorable plight of these prisoners. Many of them had been in jail for longer periods than the

maximum permissible sentences for the offences they had been charged with. The Supreme

Court accepted the locus standi of the advocate to maintain the writ petition. Thereafter, a

series of cases followed in which the Court gave directions through which the right to

speedy trial was deemed to be an integral and an essential part of the protection of life and

personal liberty.

It needs to be recognized that there will inevitably be opposition from affected quarters to the

strategy of social action litigation. Such criticism may be blatant or subtler4. They may come

from expected quarters or unexpected ones including from within the judiciary itself. An

example of this may be seen in the judgement of a two-judge bench of the Supreme Court

speaking through Katju, J.while setting aside a High Court judgement (which had directed the

State to regularize the plaintiff gardener as a truck driver since he had been working in that

capacity for the past 10 years)5. The two-judge bench then went on to make gratuitous

comments on the role of the judiciary and on the supposed limitations of public interest

litigation in India. These were questions not arising for determination in that case. As long as

forty years ago, the Supreme Court rightly prescribed that, Obiter observations and

discussion of problems not directly involved in any proceeding should be avoided by courts

in dealing with all matters brought before them, but this requirement becomes almost

compulsive when the Court is dealing with constitutional matters. Blithely ignoring this

sound directive, the two-judge bench went on to pronounce upon the supposed limitations of

public interest litigation. Even worse, the two-judge bench went on to criticize two

judgements delivered by a three-judge bench (in Jagadambika Pals caseof 19986, and the

Jharkhand Assemblycaseof 20057) calling those judgments glaring examples of deviations

from the clearly provided constitutional scheme of separation of powers. This strain of

criticism of judicial activism as articulated in judgement of Katju, J., as such is untenable.

Courts have been consistent in granting relief in social action litigation cases relating tolabour, to victims of custodial violence, and to victims of the excesses committed by the

2Ashok H. Desai & S. Muralidhar, Public Interest Litigation: Potential and Problems in

B.N. Kirpal et. al. (eds.), Supreme but not Infallible (OUP, 2000) 159-192, at p. 164-1673(1980) 1 SCC 81; See Upendra Baxi, The Supreme Court under trial: Under trials and the

Supreme Court, (1980) Supreme Court Cases(Journal section), at p. 354

Balakrishnan Rajagopal, Pro-Human Rights but Anti-poor? A Critical Evaluation of theIndian Supreme Court from a Social Movement Perspective, 18 (3) Human Rights Rev. 157

(2007).5Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683. Rajindar

Sachar, Judicial Power - No Tinkering Please, 199 Asian Centre for Human Rights (ACHR)

Weekly Review 1 (2007).6Jagdambika Pal V. Union of India (1999) 9 SSC 95

7Jharkhand Party v. State of Jharkhand, (2005) 2 BLJR 1559.


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executive. Since previously the targets of the Courts orders were comparatively junior

officials, and certainly not prominent politicians, the issue of judicial activism were not raised

by the executive. The present charge of alleged interference by the courts has only now begun

to emerge, as those who wield political and economic power are beginning to be threatened

by the impact of social action litigation8. In this context, Justice Sachar maintains that: It

will thus be amply clear that the judiciary (barring some rare escapades) as mentioned in thetwo-judge judgment is aware of its precise role in the constitutional set up. So when

seemingly interested people, mostly politicians, accuse it of overstepping its constitutional

limits, the anger is borne more out of frustration at their own partisan actions being

challenged before the judiciary rather than the usurpation of power and jurisdiction by the

courts.

III. SOCOIALIST PRINCIPLE AND JUDICIARY

Socio-economic rights exist with deep dilemmas and live a life of contradictions. On the one

hand, the states support socio-economic rights and ostensibly give them equal status and onthe other hand, they fail to constitutionally entrench those rights. One reason behind this non

entrenchment is the economic rationale that pleads lack of resources. The other and more

striking reason is that in the political theory rooted in principles of enlightenment (that the

individuals primary need is for liberty ) the concept of rights serves only a two-fold purpose

to legitimate government and to control it. Thus, welfare rights/socio-economic rights

featured as mere moral precepts and the poor had no rightto be free from want (and) the

purposes of government were police and safeguard, not to feed and clothe and house. The

difference between classical liberty rights and socio-economic rights is that liberty rights

reflect an individualist political philosophy, that prizes freedom and welfare rights,

acommunitarian or collectivist one that is willing to sacrifice freedom. This distinctness is

also described as difference between freedom from (interference by others) and freedom

to (various things regarded as necessities), wherein the obligation to supply those things is

distributed among all tax payers. The countries thriving on hard capitalism no doubt support

the negative rights of right to property and contract, and wipe their hands clean off the

positive obligations that include ensuring food security, subsidized housing. All the organs of

state (judiciary included) treat them with unusual apathy and indifference.

The judiciary, especially, looks oblivious of its role to effectuate, if not enforce, these

rights. The Constitution of India is especially sensitive to the socio-economic rights, as DPs

have not been completely constitutionally de-recognized. The legislature could carry out

large-scale agrarian reforms, abolish privy purses and nationalize industry only because of

the group rights recognized in Part IV; but in the contemporary era of liberalization, thesocialistic principles and socio-economic rights of the deprived masses have been forgotten to

secure the trade, business , occupation and property of a few elite. In this scenario, when the

state is failing to apply and implement them, the role of judiciary with respect to Part IV

becomes extremely important.

The primordial importance of these socio economic principles and judiciary can be

understood by the following words of Dr. B.R Ambedkar, when he insisted on the use of the

word strive in the language of Article 38 which mentions the governmental objective of an

equitable distribution of material resources:

8Prashant Bhushan, Supreme Court and PIL: Changing Perspectives under Liberalisation 39

EPW 194 (2004).


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We have used it because it is our intention that even when there are circumstances which

prevent the Government, or which stand in the way of the Government giving effect

to these directive principles, they shall, even under hard and unpropitious

circumstances, always strives in the fulfilment of these directives. Otherwise it would

be open for any Government to say that the circumstances are so bad, that the finances

are so inadequate that we cannot even make an effort in the direction in which theConstitution asks us to go. [Constituent Assembly Debates, 19-11-1948]

Thus, the enforceability of measures relating to social equality though incorporated in

aspirational terms was never envisaged as being dependent only on the availability of state

resources. In some instances, the Courts have privileged fundamental rights over directive

principles while in others they have creatively drawn a harmonious relationship between the

two. An example of this is the expansion of the conception of personal liberty underArticle

21 of the Constitution which was traditionally invoked in the civil political context to check

governmental abuses. The judicially expanded understanding of the same now includes

several socio-economic entitlements for citizens which place positive obligations on the state.

What is interesting is that the reading in of these socio-economic entitlements by judges has

often directly referred to the language of provisions contained in the part dealing withdirective principles. In this sense, judicial creativity has transformed the substantive character

of the protection of life and liberty. Article 21 of the Constitution of India reads as follows:

No person shall be deprived of his life or personal liberty except according to procedure

established by law. The interpretation of this article in the early years of the Supreme Court

was that personal liberty could be curtailed as long as there was a legal prescription for the

same. In A.K Gopalans case, the Supreme Court had ruled that preventive detention by

state agencies was permissible as long as it was provided for under a governmental measure

(e.g. legislation or an ordinance) and the Court could not inquire into the fairness of such a

measure. It was held that the words procedure established by law were different from the

substantive due process guarantee provided under the 14th amendment to the US

Constitution. It was also reasoned that the framers of the Indian Constitution consciously

preferred the former expression over the latter. This narrow construction of Article 21

prevailed for several years.

IV.CAN JUDICIARY SAVE OR PROTECT GANDHIAN PRINCIPLE

Our father of nation suggested someprinciples for our country which were to be followed asthe guidelines but at this moment they stand nowhere. The death of 143 people after

consuming toxic alcohols in 24 Parganas district of West Bengal speaks about the sad

position of these principles in our country. No strict laws are made for it nor government ofIndia are taking necessary steps to stop these activities. The only good consequences of

allowing consuming of alcohol are that it increases tax collection of the government and

increase in making more liquor barons such as Ponty Chadha.

The most suitable criticism of directive principles of state policy is that these are not

justiciable or enforceable it is very sad that these are taken only as moral principles but

cannot be implemented. In a country where most of the people try to imitate actors and

actresses of film, Delhi high court gave a good and noble decision to prohibit the display of

tobacco product in film and television programme but the Supreme Court put an interim stay

on the Delhi High Court's judgment.


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Union of India appealed a Delhi High Court decision finding certain sections of the Ministry

of Health and Family Welfare's rules to implement India's tobacco control

law unconstitutional in Mahesh Bhatt case.9This is how our judicial process works.

Good administration in village panchayat is what all about written in article 40, but in

practical life there are the good khap panchayats and the bad khap panchayats.The good ones

ban female foeticide. The bad ones sanction honour killings. This is how justice granted topeople at village level. The Supreme Court in a judgement termed Khap panchayats as

kangaroo courts and declared them illegal. The Supreme Court ruling said that Khap

panchayats are wholly illegal and have to be ruthlessly stamped out .A bench of justices

Markandeya Katju and Gyan Sudha Mishra said in a judgement that the new trends of

kangaroo courts, honour killings, khap panchayats in northern India and "katta" panchayats

in Tamil Nadu were barbaric and illegal, the perpetrators of which required the harshest

punishment. Terming honour killings as shameful, the apex court said, There is nothing

honourable in honour killing or other atrocities and, in fact, it is nothing but a barbaric and

shameful murder. Atrocities with respect to personal lives of people, committed by brutal,

feudal minded persons deserve harsh punishment. In his report to the Supreme Court Raju

Ramachandaran, Senior Advocate appointed by the Court to assist it in PILs against KhapPanchayats has called for arrest of "self styled" decision makers and proactive action by the

police to protect the fundamental rights of the people. It also asked for the recommendations

being converted as directions to all States and the Union, till a law is enacted by the

Parliament.

V.SEPERATION OF JUDICIARY FROM EXECUTIVE

Why do we need Separate Judiciary?

In order to promote accountability of government, hinder corruption and protect thefundamental freedoms of citizens from the will of the government of the day, it is essential to

keep separate the Parliamentspower to make laws, from the Executives power to administer

laws, and from the Judiciarys power to hear and determine disputes according to the law.

This separation is designed to protect the people from a concentration of power, and the

ability of individuals or groups to manipulate government for personal gain and to ignore the

will of the people

A true separation of government powers is essential to ensure the accountability of

government, hinder corruption and protect the fundamental freedoms of citizens against the

will of the government. Each branch of government must be, and be seen to be, free to act as

a check and balance on the other without fear or interference. There are three distinct

activities in every government through which the will of the people are expressed. These arethe legislative, executive and judicial functions of the government. Corresponding to these

three activities are three organs of the government, namely the legislature, the executive and

the judiciary. The legislative organ of the state makes laws, the executive enforces them and

the judiciary applies them to the specific cases arising out of the breach of law. Each organ

while performing its activities tends to interfere in the sphere of working of another

functionary because a strict demarcation of functions is not possible in their dealings with the

general public. Thus, even when acting in ambit of their own power, overlapping functions

tend to appear amongst these organs. The question which assumes significance over here is

that what should be the relation among these three organs of the state. Whether there should

be complete separation of powers or there should be co-ordination among them.

9Union of India v. Mahesh Bhatt, SLP (Civil) 8429-8431, Supreme Court of India (2009).


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The executive has also resorted to them while justifying its (executive) actions. For instance,

in the case of Champakam Doriarajan10, while defending the communal order, of the Madras

government, the plea was taken that it was done to promote the interest of the weaker

sections of the society as per Directive Principle of the State Policy provided in Article 46 of

the constitution of India. It was the first major verdict regarding reservations in Republic of

India. In its ruling the Supreme Court upheld the Madras High Court verdict, which in turnhad stuck down the Communal Government Order (G.O) passed in 1927 in the Madras

Presidency.

In India, Judges of the Supreme Court and High Courts are appointed by the Executive. The

appointing authority is the President of India, who acts on the advice of the Council of

Ministers. But the President is required to consult the Chief Justice of Supreme Court at the

time of making such appointments. This principle of nominating of the judges by the

Executive from among the legal experts and practitioners is more acceptable than the other

systems. The executive nomination of the judges is done with adequate safeguard. Part IV of

the Indian Constitution deals with the topic of Separation of Judiciary from executive.

The object of Article 50 of the Constitution was that there should be separation of the

judiciary from the executive so that there may be an independent judiciary in which alone thepublic can have confidence. This view is also supported by the decision of the Supreme Court

in State of Maharashtra v. Labour Law practitioner's Association and others, AIR 1998 SC

1233.Judiciary is respected by the people because we have maintained an independentjudiciary whereas in countries under Dictatorship or Military Governance, there is not even

semblance of judiciary what to say of Independent judiciary, e.g., in our neighbouring

country and the judiciary is not respected in such countries by its own people because the

Judges there merely follow the dictates of the rulers in such regimes and hence, do not inspire

confidence of the public.

VI.RESULTS AND CONCLUSION

In a survey conducted by World Bank in 2011 on enforcing contracts: Resolving commercial

disputes through the courts India ranked 182 in enforcing contracts just behind a country

called Timor and takes 1420 days during trial .An interesting fact is that cost of claim is

39.6% i.e., for an individual to get justice he has to bear an expense of 39.6% of his principal

amount. It is a matter of deep concern for a country like India which is living in a dream of

becoming superpower in 2020.Without rendering justice to the citizens of the country how

can a country can grow. Judiciary is an indispensable part in a functioning of the state.

This survey gives us the picture of how our judicial process is and where the article 39 stands

in the present India. If judges devise strategies to enforce the directive principles, it amounts

to an intrusion into the legislative and executive domain. It is reasoned that the articulation of

newer fundamental rights is the legislatures task and that the judiciary should refrain from

the same. Furthermore, it is posed that executive agencies are unfairly burdened by the costs

associated with these positive obligations, especially keeping in mind that these obligations

were enumerated as directive principles by the framers on account of practical considerations.

10State of Madras v. Champakam Dorairajan (AIR 1951 SC 226)
http://en.wikipedia.org/wiki/Reservation_in_Indiahttp://en.wikipedia.org/wiki/Republic_of_Indiahttp://en.wikipedia.org/wiki/Republic_of_Indiahttp://en.wikipedia.org/wiki/Madras_High_Courthttp://en.wikipedia.org/wiki/Madras_Presidencyhttp://en.wikipedia.org/wiki/Madras_Presidencyhttp://en.wikipedia.org/wiki/Madras_Presidencyhttp://en.wikipedia.org/wiki/Case_citationhttp://en.wikipedia.org/wiki/Case_citationhttp://en.wikipedia.org/wiki/Madras_Presidencyhttp://en.wikipedia.org/wiki/Madras_Presidencyhttp://en.wikipedia.org/wiki/Madras_High_Courthttp://en.wikipedia.org/wiki/Republic_of_Indiahttp://en.wikipedia.org/wiki/Republic_of_Indiahttp://en.wikipedia.org/wiki/Reservation_in_India


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This criticism mirrors the familiar philosophy of judicial restraint when it comes to

constitutional adjudication.It can be argued that the expansion of justiciability to include rights that are difficult to

enforce takes away from the credibility of the judiciary in the long-run. The judicial inclusion

of socio-economic objectives as fundamental rights can be criticised as an unviable textualexercise, which may have no bearing on ground-level conditions. In turn the unenforceability

and inability of state agencies to protect such aspirational rights could have an adverse effect

on public perceptions about the efficacy and legitimacy of the judiciary.

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