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It is not only the Supreme Court, the High Courts too have been granted, under
Article 226, the power to issue the aforementioned writs ‘for enforcement of
any of the rights conferred by Part III and for any other purpose.’ Hence, a
petitioner has the choice to enforce fundamental rights either before the
Supreme Court or the High Court. The words ‘for any other purpose’ denotes
that the writ power of the High Court is wider and not limited to contravention
of fundamental rights.
DIRECTIVE PRINCIPLES
Directive Principles are contained in Part IV of the Constitution, and flow from
Articles 38 to 51. We are going to examine a few important directive principles.
The term ‘state’ used in this Part has the same meaning as ‘state’ described
under Article 12, which has been examined in Module I.
What are Directive Principles
Article 37 defines Directive Principles – ‘The provisions contained in this Part
shall not be enforceable by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and it shall be the
duty of the State to apply these principles in making laws.’
Directive Principles express the aims and objects of a Welfare State,
propounding the concept of socio-economic justice. The state is required to
keep in mind the directive principles while administering the country and when
enacting laws. In Golak Nath vs. State of Punjab [(1967) 2 SCR 762], the
Supreme Court states, “In Part IV of the Constitution, the Directive Principles of
State Policy are laid down. It enjoins it to bring about a social order in which
justice, social, economic and political — shall inform all the institutions of
national life. It directs it to work for an egalitarian society where there is no
concentration of wealth, where there is plenty, where there is equal
opportunity for all, to education, to work, to livelihood, and where there is
social justice.”In Kesavananda Bharati vs. State of Kerala[(1973) 4 SCC 225],
the Supreme Court observed,“Parts III and IV which embody the fundamental
rights and directive principles of State policy have been described as the
conscience of the Constitution…. According to Granville Austin,directive
principles of State policy set forth the humanitarian socialist precepts that
were the aims of the Indian social revolution. Granville Austin, while summing
up the inter-relationship of fundamental rights and directive principles, says
that it is quite evident that the fundamental rights and the directive principles
were designed by the members of the Assembly to be the chief instruments in
bringing about the great reforms of the social revolution. He gives the answer
to the question whether they have helped to bring the Indian society closer to
the Constitution’s goal of social, economic and political justice for all in the
affirmative.”In summary, fundamental rights and directive principles
compliment each other - their goals are the same, that is to bring about a
social revolution so as to establish a Welfare State as envisaged in the
Preamble.
As directive principles are not justiciable, they are qualified with the words
‘strive’, ‘take steps’, ‘endeavour’ and promote’, which denote that the state is
required to progressively secure the same by enacting legislation. The
progressive realisation of directive principles depends upon the economic
advancement of the Indian state. While holding in the negative that ‘right to
work’ falls within Article 21, the Supreme Court noted in Indian Drugs &
Pharmaceuticals Ltd. vs. Workmen[(2007) 1 SCC 408], “No doubt, Article 41
provides for the right to work, but this has been deliberately kept by the
Founding Fathers of our Constitution in the directive principles and hence
made unenforceable in view of Article 37, because the Founding Fathers in
their wisdom realised that while it was their wish that everyone should be
given employment, but the ground realities of our country cannot be
overlooked.In our opinion, Article 21 of the Constitution cannot be stretched
so far as to mean that everyone must be given a job. The number of available
jobs are limited, and hence courts must take a realistic view of the matter and
must exercise self-restraint.” Towards progressive realisation of the right to
work, the Central Government, in 2005, enacted the Mahatma Gandhi
National Rural Employment Guarantee Act.
Article 38 : State to secure a social order for the promotion of welfare of the
people : ‘(1) The State shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which justice,
social, economic and political, shall inform all the institutions of the national
life. (2) The State shall, in particular, strive to minimise the inequalities in
income, and endeavour to eliminate inequalities in status, facilities and
opportunities, not only amongst individuals but also amongst groups of people
residing in different areas or engaged in different vocations.’
Article 38 confirms India to be a Welfare State – the state through its policies
and legislation is required to promote the well-being of the people. It also
reflects that in order to create a just society, the state authorities, including
the courts, should lean in favour of the weak. “The challenges in these writ
petitions compel us to remind ourselves that under our constitutional system
courts are havens of refuge for the toiler, not the exploiter, for the weaker
claimant of social justice, not the stronger pretender who seeks to sustain the
status quo ante by judicial writ in the name of fundamental right. No higher
duty or more solemn responsibility rests upon this Court than to uphold every
State measure that translates into living law the preambular promise of social
justice reiterated in Article 38 of the Constitution.” [Azad Rickshaw-Pullers’
Union (Regd.) vs. State of Punjab : 1980 Supp SCC 601]
Clause (2) of Article 38 indicates the socialist nature of the Indian state. It also
stresses on creation of an egalitarian society throughout the country in all
fields. It acknowledges the wide disparities amongst individuals, as also
amongst communities residing in different parts of the country and having
diverse inclination. Article 38 obligates the state to frame policies and enact
legislation to reduce this gap. For example, there is a growing belief that
industrialisation is the key to development because of which the agricultural
sector is facing neglect – Article 38 mandates that the focus should be upon
balanced development by encouraging both these sectors.
In continuation to Article 38, Article 39, through its seven clauses, especially
clauses (b) and (c), further depicts the Indian state’s socialist character.
Article 39 : Certain principles of policy to be followed by the State: ‘The State
shall, in particular, direct its policy towards securing—
(a) that the citizens, men and women equally, have the right to an
adequate means of livelihood;
(b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common
good;
(c) that the operation of the economic system does not result in the
concentration of wealth and means of production to the
common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and
the tender age of children are not abused and that citizens are
not forced by economic necessity to enter avocations unsuited to
their age or strength;
(f) that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and
against moral and material abandonment.’
Any action of the state should further the intent contained in clause (b) and (c),
namely, the equitable distribution of resources amongst the people. The
Supreme Court has described clauses (b) and (c) of Article 39 as “a futuristic
mandate to the State with a message of transformation of the economic and
social order” [State of Karnataka vs. Ranganatha Reddy : (1977) 4 SCC 471].
An example to better understand clause (b)– water and coal (natural resource)
is converted into electricity (material resource) by Brihanmumbai Electric
Supply & Transport Undertaking (public sector) or Reliance Energy (private
sector), but the end product should be distributed so as to benefit as many as
possible. To achieve such distribution, affordability and accessibility is
important, and not profits or revenue.
What is a Welfare State and its nexus with Articles 38 and 39 is best
summarised in the words of the Supreme Court in Lala Ram vs. Union of India
[(2015) 5 SCC 813],“A welfare State denotes a concept of Government, in
which the State plays a key role in the protection and promotion of the
economic and social well being of all of its citizens, which may include
equitable distribution of wealth and equal opportunities and public
responsibilities for all those, who are unable to avail for themselves, minimal
provisions for a decent life. It refers to ‘greatest good of greatest number and
the benefit of all and the happiness of all’. It is important that public weal be
the commitment of the State, where the State is a welfare State. A welfare
State is under an obligation to prepare plans and devise beneficial schemes for
the good of the common people. Thus, the fundamental feature of a welfare
State is social insurance. Anti-poverty programmes and a system of personal
taxation are examples of certain aspects of a welfare State. A welfare State
provides State-sponsored aid for individuals from the cradle to the grave…A
welfare State is one, which seeks to ensure maximum happiness of maximum
number of people living within its territory. A welfare State must attempt to
provide all facilities for decent living, particularly to the poor, the weak, the old
and the disabled i.e. to all those, who admittedly belong to the weaker
sections of society. Articles 38 and 39 of the Constitution of India provide that
the State must strive to promote the welfare of the people of the State by
protecting all their economic, social and political rights. These rights may
cover, means of livelihood, health and the general well-being of all sections of
people in society, specially those of the young, the old, the women and the
relatively weaker sections of the society. These groups generally require
special protection measures in almost every set up. The happiness of the
people is the ultimate aim of a welfare State, and a welfare State would not
qualify as one, unless it strives to achieve the same.”