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Citation:
Bertus De Villiers, Directive Principles of State
Policy and Fundamental Rights: The Indian Experience, 8
S. Afr. J. on Hum. Rts. 29 (1992)

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DIRECTIVE PRINCIPLES OF
STATE POLICY AND
FUNDAMENTAL RIGHTS:
THE INDIAN EXPERIENCE

BERTUS DE VILLIERS*

INTRODUCTION

South Africa is experiencing an intensification of the debate on the

protection of fundamental rights. Although it seems as if the major
political actors agree in principle that a justiciable bill of rights be
included in a new constitution, differences of opinion on the substance of
such a bill of rights are apparent. One issue that still has to be agreed
upon, is the way in which social, economic and cultural rights can be
protected in a future bill of rights. Although there is consensus on the
protection of certain socio-economic rights (such as freedom of contract,
property, equal pay for equal work, the position of the family, etc) in
addition to the traditional civil and political rights, other socio-economic
rights (such as the right to work, decent living, nutrition, etc) are not yet
sufficiently well defined to be justiciable. The nature of some of these
rights is programmatic and places the state under an obligation to act in
order to assist individuals in their plight. The justiciability of socio-
economic rights, or so-called second-generation rights, is the subject of
wide-ranging discussion as is illustrated by the interim report on the
protection of group and human rights by the South African Law
Commission.
The ANC in their proposal for a bill of rights, refer to the examples of
countries such as India, Ireland and Namibia where constitutional
provision is made for directive principles of state policy. These directive
principles are the embodiment of a national spirit and consensus on
social, economic and cultural issues which have to be addressed by the
state. Although they do not provide a basis of legal action if programmes
are not undertaken, various governments have used the directive
principles to bring about far-reaching socio-economic reform.
The constitutional and political development of India with regard to
the relationship between fundamental rights and directive principles

BA LLB (RAU) LLD (RAU), Head, Centre for Constitutional Analysis, Human Sciences Research
Council.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

offers interesting lessons for South Africa. This article will endeavour to
examine the background and functioning of the Indian directive
principles and to focus on the relationship between these directives and
fundamental rights.

1. BACKGROUND TO DIRECTIVE PRINCIPLES OF STATE POLICY

The genesis of the chapters in the Constitution on fundamental rights and

directive principles is interwoven with Indian political and constitutional
development, especially since the days when the struggle for indepen-
dence started. The inclusion of a chapter on directive principles of state
policy and fundamental tights in the Constitution originated during the
struggle against British rule and domination. As early as the establish-
ment of the Indian National Congress the implementation of fundamen-
tal rights was high on the agenda. The first formal demands for a bill of
rights were incorporated in the Constitution of India Bill, 1886. Similarly,
a declaration of policy on the social and economic obligations of the state
has also been an integral part of India's history. 1 In the early days,
provision was made in India for certain duties that the King had towards
'the dying, the infirm, the affected and the helpless with maintenance
. .,•2
' The modern time directive principles are therefore little more than
3
a reformulation of ancient Raja Dharma.
The concept of a constitutionally entrenched chapter on directive
principles for state policy was borrowed from the Irish Constitution. The
directives in both cases emphasize the duty that rests on the state to
achieve certain socio-economic goals. It is in this way that the
4
establishment of an 'economic democracy' can be attained.
The founding fathers of the Indian Constitution attempted to harmo-
nize the seemingly conflicting claims of individual liberties and social
justice. 5 Initially the independence struggle was characterized by claims
for protection against arbitrary state action. Later it was realized that the
fundamental rights would be without much meaning unless socio-
economic renewal occurred. This realization was formulated by Nehru as
follows:
'India's immediate goal can only be considered in terms of the ending of the exploitation
of her people. Politically, it must mean independence and cession of British connection,

1 J Rao The framing of Indian Constitution (1968) 319.

2 K J Reddy 'Fundamentalness of Fundamental Rights and Directive Principles in the Indian
Constitution' 1980 Journalof the Indian Law Institute 403.
3 Raja Dharma includes a variety of activities of kings, including their personalities, character and
public relations. It is a comprehensive phrase which in essence encompasses 'the fundamental social
and political principle exposing complete fulfilment of humane ends as well as universal security'
Reddy op cit note 2 at 403.
4 M P Jain Indian ConstitutionalLaw (1978) 549.
5 S K Sharma Justice and Social Orderin India (1984) 176.
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS

economically and6 socially, it must mean the ending of all special class privileges and
vested interests.'

It was therefore realized by the founding fathers that 'for those who suffer
from want and hunger, the so-called fundamental rights would be
meaningless and remain only paper rights'. 7 The result is that two
separate chapters, one on fundamental rights and the other on directive
principles, were included in the Constitution. The chapter on fundamen-
tal rights is characterized by its individualistic nature, its emphasis on
justiciability and the limits it places on state action. The directive
principles are a set of justiciably unenforceable goals which are
fundamental to the governance of the country and which place positive
obligations on the state.8
It would be incorrect to assume that the distinction between the
fundamental rights and the directive principles can be equated with the
justiciability of first and second generation rights. The fundamental rights
contain various rights that can be said to have a social, economic, cultural
and educational nature. 9 They represent more than the traditional
conception of civil and political rights. The directives provide the
constitutional framework within which these rights should be under-
stood. While the fundamental rights are essentially negative and are the
'mark of a world in which the government has no jurisdiction', the
directives call for positive action by the state which has a moral, political
and judicial consequence. 10
The Constituent Assembly, convened to draw up a constitution for
independent India, established an Advisory Committee for the purpose
of compiling a list of fundamental rights to be included in the
Constitution. The original report of the committee contained a chapter
on certain directive principles which were described as follows:
'The principles of policy set forth in this chapter are intended for guidance of the State.
While these principles shall not be cognizable by any court, they are nevertheless
fundamental in the governance of the country and their application in the making of laws
shall be the duty of the State'.11

The chairman of the Advisory Committee informed the President of the

Constituent Assembly on 25 August 1947 that in addition to the
justiciable rights, the Constitution should provide for a set of principles

6 Quoted by Judge Bhagwati in Minerva Mills Ltd v Union of India AIR 1980 SC 1843.
7 Sharma op cit note 5 at 179.
8 P Errabbi 'The constitutional scheme of harmony between fundamental rights and directive
principles of State Policy in India: Judicial Perceptions' in Sharma op cit note 5 at 176.
9 Some of the social, economic and cultural rights provided for in the constitution are rights referring
education (a29 and 30); protection against forced labour (923);
to property (a300A, 19(l)(f) and (5));
freedom of association, including the right to form unions (al9(l))(c) and (3); the right to conduct
business (al9)(1)(g).
10 State of Kerala v Thomas AIR 1976 SC 516.
11 ConstituentAssembly Debates (CAD) Vol 5 at 406.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

which, although non-justiciable, would be fundamental in the gover-

nance of the country.1 2 Although no exhaustive reasons or arguments
were given for the Advisory Committee's views, it would seem that
fundamental rights were regarded as those which could be enforced
immediately without any serious economic or administrative action by
the state. The directive principles on the other hand required extensive
state action and resources and could not be implemented as easily as
fundamental rights.1 3 The chairman of the Advisory Committee empha-
sized that the directive principles were of such a fundamental nature that
they should form part of the Constitution. Some members argued that
owing to the political and programmatic nature of the directive principles,
as well as their non-justiciability, they ought not to be included in the
Constitution. 14 Others, such as Das, acknowledged the importance of the
directive principles but felt that they should form part of an appendix to
15
the Constitution.
To the founding fathers they provided a guideline for expressing the
'salient features of the new social and economic order sought to be
brought in though the channels of the Constitution'. 16 Although some felt
17
that there was no place for a 'political manifesto' in a Constitution, the
directive principles were seen as an instruction to all government agencies
as to what socio-economic state had to be created. Chaundhri summa-
rized the rational of the directive principles as:
'The political, social and economic ideology expressed in the directive principles imparts
continuity to the nation's policy and makes it comparatively free from the vicissitudes of
8
the ideology of political parties that might come into force from time to time',

The main rationale for the inclusion of the directive principles was
therefore that they provided a code of conduct according to which the
governance of the country should take place. 19 All levels of government
were expected to adhere to and act in accordance with the aims set out in
the directive principles. 20 Given the socio-economic needs of Indian
society, the directive principles provide the framework for a 'peaceful
political revolution'. 2t The non-justiciability of the directives does not

12 CAD Vol 4 at 404.

13 B Rae India's Constitution in the Making (1952) 248.
14 CAD Vol 4 at 362-4.
15 CAD Vol 4 at 366-8.
16 Chaundhri ConstitutionalRights and Limitations (1955) 221.
17 G Joshi The Constitution of India (1958) 108.
18 Op cit note 16 at 223.
19 There were conflicting interpretations of the directive principles during the Constituent Assembly
Debates. Some speakers emphasized their moral value, others their educational substance, others
saw them as a check on legislative despotism, while others regarded them as a 'set of veritable dustbin
sentiments'. M C J Kagzi The Constitution of India (1989) 933.
20 Buddhu v Allahabad Municipality AIR 1952 All 753.
21 Kagzi op cit note 19 at 932.
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS

mean that they can be ignored by the courts. The way in which
fundamental rights are understood and interpreted depends on the vision
formulated in the directives. Consequently fundamental rights can be
interpreted in a manner which otherwise would not have been possible.
Originally it was felt that future elections and public opinion would be the
main 'implementing' force behind the directives. Although this has been
partially true, the courts have lately taken much more cognizance of the
22
directives.
The directives require of the state to involve itself actively in the
socio-economic sphere of society, including the economic system, control
of land, remuneration of workers, educational matters, health and
nutrition and social and cultural activities. Without a sound socio-
economic basis for the country, it was feared that the Constitution would
become 'useless and purposeless'. 23 The fundamental freedoms en-
trenched would be of no avail if proper housing, employment and welfare
24
were not at the disposal of the average man.
The sanctions attached to the directives are therefore moral, political
and judicial to the extent that they provide the framework in which
fundamental rights are to be interpreted and understood. 25 No court can
nullify legislation on the grounds that it is contrary to the directives, but
as an instrument of interpretation, especially in later years, the directives
can cause the validity of legislation to be upheld while otherwise it may
have been nullified. The courts have therefore through the years allowed
numerous legislative restrictions on fundamental rights for the purpose of
securing the aims of the directives.
The following conclusions can be drawn from the debates in the
Constituent Assembly on the directive principles of state policy:
* The directive principles as such shall not be justiciably enforceable
owing to the economic, administrative, technological and manpower
obligations they place on the state.
" The directive principles are fundamental to the governance of the
country, and state action should be aimed at fulfilling the directives. In
* the interpretation of fundamental rights and legislation, the directive
principles should be kept in mind to ensure that socio-economic
renewal occurs.
* The directive principles and the preamble constitute the soul, spirit and

22 The founding fathers argued that the fact that the Directives were included in the constitution gives
them a 'peculiar binding character' since any party which ignores them, will in essence be ignoring the
constitution. Owing to the democratic basis of the government 'it was presumed that they act in
concert to implement the principles of the directives'. Kagzi op cit note 19 at 938.
23 CAD Vol 2 at 316.
24 K S Hedge The Directive Principles of State Policy in the Constitution of India (1952) 20.
25 Although the fundamental rights and directive principles form an organic unit, they were divided into
two pans 'for the sake of convenience, because, it was thought that the Directive Principles by their
very nature cannot be made justiciable through courts' Hedge op cit note 24 at 43.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

hope of the Constitution. The aspirations of the founding fathers and

the Indian nation to establish a society in which fundamental rights are
respected but which also addresses the socio-economic realities, are
summarized in the chapters on fundamental rights and directive
principles.
* The difference between fundamental rights and directive principles
does not derive from the first-generation versus second-generation
human rights debate. Several rights that can be regarded as of
economic, educational and cultural value are included in the chapter
on fundamental rights, and are therefore justiciable.
* The directive principles are in essence constitutional 'letters of
instruction' to all governmental institutions by the ultimate sovereign
authority, the Indian people. All legislation consequently has to
adhere to these principles, which are fundamental to the governance of
the country.

2. SCOPE AND CLAUSES OF DIRECTIVE PRINCIPLES OF STATE POLICY

The directive principles have two important characteristics. First, they

are not enforceable in any court of law 26 and, therefore, should they be
ignored or infringed the aggrieved have no legal remedy to compel
positive state action. Secondly, the principles are fundamental to the
governance of the country and oblige the legislature to act in accordance
with them. They consequently fulfil an important role in the interpreta-
tion of statutes. The Supreme Court has for instance acknowledged at
various occasions that fundamental rights can be restricted when the
public interest as formulated in the directive principles requires it.27 This
was illustrated by the abolition of zamindari, 28 the upholding of the
Minimum Wages Act 29 and the prohibition of the slaughtering of certain
cattle.30
The unenforceability of the directive principles from a judicial
perspective, 3 t has led Seervai to describe them as 'rhetorical language, 32
hopes, ideals and goals rather than the actual reality of government'.
Although the main force behind the implementation of the directives is
political rather than legal, it will be shown that during the past decade the

26 '. . the provisions shall not be enforceable by any court...' (a37).

27 State of Bombay v F N BakaraAIR 1951 SC 318.
28 State of Bihar v Kameshwar Singh AIR 1952 SC 252.
29 Bijay Cotton Mills v State of Aimer AIR 1955 SC 33.
30 M H Quareshi v State of Bihar AIR 1958 SC 731.
31 The non-justiciability of the directives is laid down in Article 37 as follows:
'The provisions contained in this Part (Directive Principles of State Policy) 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.'
32 H M Seervai ConstitutionalLaw of India (1984) 1577.
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS

courts have played a much more active role in ensuring that the directives
are implemented. The directive principles can be divided into five
categories, 33 namely:
1 Socialist principles, which emphasize certain approaches in addressing
socio-economic problems. The principles declare that
- the state should direct its policies towards ensuring that its citizens,
men and woman equally, have an adequate means of livelihood;
- the ownership and control of the material resources of the
community should be so distributed as best to serve the common
good;
- the operation of the economic system should not result in the
concentration of wealth and means of production to the detriment
of the common good;
- there will be equal pay for equal work for both men and woman;
- the health and strength of workers, men and woman, and the tender
age of children should not be abused, and that citizens should not
be forced by economic necessity to enter occupations unsuited to
their age and strength;
- childhood and youth should be protected against exploitation and
34
against moral and material abandonment;
- the state should, within the limits of its economic capacity and
development, make effective provision for securing the right to
work, to education and to public assistance in cases of unemploy-
35
ment, old age, sickness, disablement, etc;
- the state should make provision for securing just and humane
36
conditions of work and for medical relief;
- the state should endeavour to secure for all workers, agricultural or
industrial, work and a living wage, conditions of work ensuring a
decent standard of living and full employment and leisure and social
37
and cultural opportunities.
2 Gandhian principles which are based on the thoughts of Mr Gandhi.
They are that the state should:
- take steps to organize village Panchayats (local governments) and
endow them with such powers and authority as may be necessary to
38
enable them to function as units of self-government;
- promote with special care the educational and economic interests of
the weaker sections of the people, particularly of the scheduled

33 Chhabra The Indian ConstitutionalSystem (1984) 44-5.

34 a39.
35 a42.
36 a42.
37 a37.
38 a40.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

castes and the scheduled tribes, and should protect them from social
39
injustice and all forms of exploitation;
- endeavour to promote cottage industries on an individual or
co-operative basis in the rural areas; n°
- endeavour to preserve the breeds of milch and draught cattle,
41
including cows and calves, and prohibit their slaughter;
- endeavour to bring about the prohibition of the consumption,
except for medicinal purpose, of intoxicating drugs and of drugs
42
that are injurious to health;
- take steps to separate the judiciary from the executive in the public
43
service.
3 General Welfare principles, which emphasize the welfare of all
citizens. The state is required to endeavour to
- provide free and compulsory education for all children till the age
44
of 14 years;
- organize agricultural and animal husbandry on modern and
45
scientific lines;
- raise of the level of nutrition and the standard of living of its citizens
46
and the improvement of public health as one of its primary duties;
- secure for its citizens a uniform civil code throughout the territory
47
of India;
- ensure equal access to the courts and provide legal assistance to
those in need. 4 8
4 International principles, which require the state to
- promote international peace and security,
- maintain just and honourable relations between nations,
- foster respect for international law and treaty obligations, and49
- encourage settlement of international disputes by arbitration.
5 Nature conservation principles, which require the state to
- protect and improve the environment, and
50
- to safeguard the forests and wild life.

39 a46.
40 a43.
41 a48.
42 a47.
43 a50.
44 a50.
45 a48.
46 a47.
47 a44.
48 42nd Amendment, 1970, a39A.
49 a51.
50 48A.
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS

The directive principles thus represent a 'chart'.for the establishment and

running of Indian democracy, seeing that 'democracy can survive only in
a society founded on social and economic justice'. The directive
principles are therefore a 'set of minimum requirements' for a 'civilized
existence'. 51 It is clear from the Constitution that the directive principles
do constitute legal norms which are of relevance to the judiciary. These
norms cannot be enforced by court action or at an individual's
instigation ,52 but they provide a frameworkfor understandingthe intention
of the legislatureand may justify certain restrictionson fundamental rights
which otherwise would not have been possible. The courts have
established the principle that the reference in Art 37 to the 'making of
laws' is wide enough to enable them to interpret laws in consonance with
the directive principles. 5 3 This means that if various interpretations of a
law are possible, it is the duty of the court to follow an approach which
54
most closely adheres to the directive principles.
The important role that the directive principles have thus far played in
the governmental process is illustrated by the volume of social and
welfare legislation which has been adopted and its being the point of
departure for the work of important commissions such as the Law,
55
Planning and Taxation Commissions.
The courts have through the years, but especially during the past
decade, actively used the directive principles to interpret fundamental
rights and legislation. There is a general presumption that all legislation
and state action are aimed at implementing the directives.5 6 On this basis
legislation is interpreted in a manner that most supports the directive
principles, and these principles thus serve as an instrument to resolve
statutory ambiguities. Concerning the relationship between the directive
principles and fundamental rights, the former have provided the basis for
certain restrictions on the latter owing to the public interest in certain
legislation. In this way restrictions have been allowed on dealings
involving property, 57 freedom of contract, 58 fair labour practice 59 and
legal aid. 60
The directive principles have not been a panacea for the intense

51 Hedge op cit note 24 at 58.

52 Kagzi op cit note 19 at 938.
53 Balwant Raj v Union of India 1968 AA 14.
54 F N Balsarav Bombay 1959 Born 17.
55 'A deliberate and designed contempt or violation of the directive principles in the laws of the land
cannot fail to have repercussions in popular disapprobation and it might lead to displacement of
government.' Chaudhri op cit note 16 at 225.
56 Kagzi op cit note 19 at 941.
57 State of Bombay v Balsara AIR 1951 SC 318.
58 Secretary Government Public Works v Adoni Ginning Factory AIR 1959 AP 538.
59 Eveready Flashlight v Labour Court AIR 1962 All 497.
60 Hayawauadanrao Hoskot v Maharashtra AIR 1978 SC 1548.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

socio-economic problems experienced by India. Although they have

played an important role in the administrative and legislative pro-
grammes of the country, 'there have been deficiencies in the implemen-
tation of the policies framed for the purpose and much remains to be
done'. 61 Structural problems, financial constraints, unwillingness of
political parties and the limited resources to address backlogs, are but a
few reasons why the ideals contained in the preamble and the directive
principles have not yet fully been attained. The 'unenforceability' of the
directives has contributed to the criticism that fundamental rights were
62
emphasized to the detriment of the directive principles for many years.
The success of the directive principles has therefore been mixed. Some
progress has been made in fields such as agriculture and industry, the
fixing of minimum wages, the fixing of prices, the improvement of
working conditions and land distribution. However, on the other side of
the scale, there have been innumerable obstacles which have left millions
of people in need of proper housing, welfare, employment, education,
etc. Sathe aptly summarizes the situation as follows:
'... the ultimate sanction for the directive principles must come from the people's will
to have them implemented. . . . Unfortunately, the decisions of the courts remain
confined to the parties who fight the litigation. The government and public sector
organizations continue to flout them and the poor men have unfortunately no resources
for going to the court again and again'.63

The nature and scope of the directive principles of state policy can be
summarized as follows:
(i) The directive principles represent the spirit and soul of the Indian
Constitution. They acknowledge the urgent need for nationwide
socio-economic upliftment which will have to continue for genera-
tions to come.
(ii) The directive principles serve as a socio-economic chart for all
governmental institutions including semistate bodies, according to
which steps have to be taken to implement and realize their
provisions. It can be equated with the constitutional embodiment of
the needs and aspirations of the Indian people with the obligation on
the state to act accordingly.
(iii) The directive principles are not enforced in the same way as the
individual rights provided for in the chapter on fundamental rights.

61 Jain op cit note 4 at 595.

62 'The non-justiciabiiity of the directive principles has led to a situation where their unenforceability has
been overemphasized to such an extent that the political and electoral checks originally envisaged
have not fully met the promise.' Shetty FundamentalRights and socio-economicjustice in the Indian
constitution (1969) 76. Due to a more activist approach of the Supreme Court lately, this criticism by
Shetty has at least partially been addressed. It has to be acknowledged, however, that no court can
order a government to fulfil a directive principle by building a house, creating employment or
ensuring adequate welfare if resources are limited.
63 S A Sathe 'Constitutional Law' 1986 Annual Survey of Indian Law 398.
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS

The directive principles place an obligation on the state to act

positively by providing finance, administration, manpower and
technological support to address the socio-economic needs of the
population.
(iv) The directive principles are of great relevance to the judiciary since
they constitute special legal norms. They proved to be essential in the
interpretation of legislation and have in many cases provided the
basis for limitations on fundamental rights when this was for a valid
public purpose.
(v) The directive principles provide a balance between the interests of
the individual and the duty of the state towards the community.
Although the courts are not empowered to oblige the state to
undertake certain projects, the courts can by means of the directive
principles uphold legislation which in other circumstances would
have been declared void owing to their infringement of fundamental
rights.

3. RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE

PRINCIPLES

The relationship between the chapters on fundamental rights and

directive principles for state policy has intrigued the legal community ever
since the promulgation of the Constitution. The courts have moved
through various phases in their efforts to uphold the intention of the
framers of the Constitution, and also to address the problems facing
modern day India.
Through the years three views on the relationship between fundamen-
tal rights and directive principles developed. The first is that the
fundamental rights carry more weight and should be given preference in
the event of conflict. The second is that the two are of equal importance,
and that under all circumstances they should be harmonized. The third is
that directive principles are central to the governance of the country and
should therefore carry more weight than fundamental rights.
Since the inception of the Constitution it was clear that some stress
would develop between the interests of the individual at microlevel and
the interests of the community at macrolevel. This stress is described by
Sharma 64 as follows:
'The individual rights at the micro-level cannot be magnified to interfere and impede the
acceleration of macrodirects and dynamics otherwise the dynamism of Indian people,
moving forward as a nation to complete the unfinished Indian revolution will be lost.'

In essence, the differences between the chapters on fundamental rights

and directive principles can be summarized as follows:

64 Op cit note 5 at 23.

 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

(i) Fundamental rights prevent the state from acting, while directive
principles provide a framework within which the state is required to
act.
(ii) Fundamental rights can be directly enforced by the courts by means
of sanctions, while the directive principles are explicitly described as
'non-justiciable' by the Constitution. Their enforceability depends
on political and moral pressure, and they can be of direct legal
consequence only in terms of interpretation.
(iii) Fundamental rights are, due to their justiciable character, more
exact and specific than the directive principles, which are fairly
vague, general and programmatic.
The obvious question arising from these two chapters is which one takes
preference if an irreconcilable conflict occurs? The Constitution at face
value, makes it clear that in the event of such conflict the fundamental
rights are enforceable while the directives are not. 65 Any law which
therefore encroaches on fundamental rights is null and void while this is
66
not the case when laws are in conflict with the directive principles. Sir
B N Rau, one of the constitutional advisors to the Constituent Assembly,
proposed that if individual rights were in conflict with those relating to
state policy aimed at the welfare of all the people, the 'general welfare
should prevail'. 67 This proposal was not accepted by the Constituent
Assembly and as a consequence those who argued that the directive
68
principles should be non-justiciable 'won the day'.
Although the state is therefore under an obligation to implement the
directives, it still has to adhere to the other constitutional provisions,
including those on fundamental rights. 69 No legislation, even that aimed 70
at fulfilling the directive principles, may infringe on fundamental rights.
Should the directives and fundamental rights not be in direct conflict, the
courts have to construe them as harmoniously as possible.
Through the years the courts have adopted various attitudes to the
relationship between fundamental rights and directive principles. Ini-
tially fundamental rights were 'sacrosanct' and sovereign to directive
principles. Later the courts stressed the interpretative harmony and
nexus, and for the past decade they have tended to uphold legislation
which, even though it may limit fundamental rights, furthers the ideals of
the directive principles.
The various attitudes of the courts in their efforts to interpret the
Constitution accurately will now be discussed.

65 a32.
66 a37.
67 CAD Vol 3 at 226.
68 Seervai op cit note 32 at 1584.
69 State of Biharv Ramesh war 1952 SC 292.
70 H M Quareshi v State of Bihar 1958 SC 731.
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS

3.1 Fundamentalrights are sacrosanct

The first phase after the promulgation of the Constitution was charac-
terized by the supremacy of fundamental rights over directive principles.
Should legislation adopted in furtherance of the directive principles
infringe on fundamental rights, it would be declared null and void. This
attitude was summarized as follows:
'We have seen that the directive principles are not "law" at all but are correctly described
as moral precepts or as ideals to be followed in governing the country. Whereas
fundamental rights confer enforceable legal rights, directive principles confer no right to
anyone. It is strictly not accurate to speak of a conflict between fundamental rights and
directive principles. The conflict can only be between fundamental rights and laws
enacted by the legislature to implement directive principles. It is obvious that in any
conflict between constitutional and statutory rights, the former must prevail.'71

The Supreme Court held the same view in Madras v Champakam

Dorairajan.72 The court's attitude during this phase was that fundamen-
tal rights were superior to directive principles. However, before ruling in
favour of fundamental rights - in the event of a conflict, the court should
first attempt to harmonize the two sets of principles.
In the Madrascase the state government reserved a certain number of
places in medical and engineering colleges on a community basis. This
case provided the first opportunity for the courts to formulate their
attitude towards the relationship between fundamental rights and
directive principles. The petitioners argued that such reservations were in
conflict with the fundamental rights which stated that no individual shall
be denied admission to an educational institution on the grounds of
religion, race, caste or language. 73 The state on the other hand argued74
that the places were reserved in furtherance of the directive principles,
which aim to protect the scheduled castes and tribes. The state believed
that it was under a constitutional obligation to give effect to the directive
principles, and that the reservation was therefore valid.
The Supreme Court rejected the state's argument and ruled that the
reservation was void owing to its encroachment on fundamental rights.
The reasoning of the court was:
'The directive principles of state policy, which by Art 37 are expressly made
unenforceable by a court, cannot override the provisions found in part 3 (Fundamental
Rights) which, notwithstanding other provisions, are expressly made enforceable. The
chapter of fundamental rights is sacrosanct and not liable to be abridged by any
Legislative or Executive Act or order, except to the extent provided in the appropriate
article in Part 3. The directive principles of state policy have to conform and run as
subsidiary to the chapter of fundamental rights ... However, so long as there is no

71 Seervai op cit note 32 at 1618.

72 1951 AIR SC 226.
73 a29(2).
74 a46.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

infringement on any Fundamental Right, there can be no objection to the State acting in
accordance with the directive principles.. 7

The essence of the court's argument is that although the state is required
by the Constitution to initiate programmes to comply with the directive
principles, such action is subject to the fundamental rights. The state
should thus be aware that 'while professing to implement a directive, it
cannot pass a law which is inconsistent with any provision of part 3
76
(Fundamental Rights) which is enforceable by judicial process'.
However, the mere fact that a specific mandate contained in the
Constitution is not enforceable, does not mean that such a mandate is not
of great importance. Hedge 77 emphasizes that the Constitution contains
'many important mandates which may not be enforceable by courts of
law', but that does not mean that they are of lesser value than those that
can be enforced.
78
This line of argument was supported in M H Quareshiv State of Bihar,
where there was a direct conflict between the fundamental right to carry
on a business 79 and the directive principle which requires the state to take
steps to prohibit the slaughter of certain animals. 80 The court argued that
no law may abridge fundamental rights, including those laws accepted in
the furtherance of the directive principles. The court concluded:
'A harmonious interpretation must be placed upon the Constitution, and so interpreted
it means that the State should implement the directive principles but it must do it in such
a way as not to take away or abridge fundamental rights.'s

This principle was again debated in In re KeralaEducation Bill, 1957.82

In this case a bill required schools belonging to minorities not to charge
any fees for children attending primary classes. 83 This provision made it
impossible for minorities to carry on with educational institutions
established and administered by themselves. The bill made no provision
for the state to subsidize the schools to cover their losses. The state argued
that the bill was in furtherance of the directive principle which required
the state to provide free and compulsory education for all children up to
the age of fourteen. 84 The court rejected the state's reasoning and ruled

75 Ibid at 531.
76 Kagzi op cit note 19 at 943.
77 Op cit note 24 at 73.
78 Supra note 70.
79 a 19(1)(g) '. . . to practice any profession, or to carry on any occupation, trade or business'.
80 a48 'The State shall ... take steps for preserving and improving the breeds, and prohibiting the
slaughter of cows and calves and other milch and draught cattle.'
81 Ibid at 638.
82 1959 SCR 995.
83 The issue in dispute was clause 20 of the Bill which determined that 'no fee shall be payable by any
pupil for any tuition in the primary classes in any government or private school'.
84 a45. 'The State shall endeavour to provide, within a period of ten years from the commencement of
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS

that the directive principles could not be implemented at the expense of

minorities, and that should the state want to implement Art 45 it would
have to cover the losses suffered by the minorities concerned.
This first phase of fundamental rights as being sacrosanct was therefore
characterized by the following arguments. 85
" The Constitution is supreme and all laws and executive action
contravening it, are void. Fundamental rights constitute fundamental
law while directive principles do not. No law or executive action which
contravenes the directive principles is void.
" The directive principles constitute a moral framework for state action
and should be interpreted harmoniously together with fundamental
rights if possible. Should the conflict be irreconcilable, fundamental
rights carry more weight.
* The directive principles have not got the same constitutional standing
as fundamental rights. Without the protection of fundamental rights no
liberal democracy can ever be established. On the other hand, all states
have a social, political and welfare responsibility towards their people,
irrespective of whether their constitutions contain directive principles
or not.
* Fundamental rights can be implemented without hesitation. The
chapter on fundamental rights has affected the whole Indian social
fabric by 'subjecting legislative and executive despotism to the
discipline of fundamental rights in order to protect basic human rights
and values'. 86 The directive principles have, owing to their voluntary
nature, not had such a drastic effect on government and society. Many
of the ideals contained in the directive principles have not been
attained, even by highly industrialized countries.

3.2 Fundamentalrights and directive principles are complementary

The next phase in the 'battle' between fundamental rights and directive
principles was characterized by efforts to interpret them in such a way that
they are seen as complementary and supplementary to each other. The
new approach was motivated by the criticism that previous decisions
emphasized fundamental rights to such an extent that very little came
from implementing the directive principles. Sharma observes that it is
'tragic' to note that the judiciary, when it comes to social change, has
'failed to appreciate the insights of the Constitution and needs of society

this Constitution, for free and compulsory education for all children until they complete the age of
fourteen years.'
85 Seervai op cit note 32 at 1622.
86 Ibid.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

and has not shown evidence of foresight of the inevitable, futuristic

projections'. 87 He argues as follows:
'Our judiciary has unwillingly allowed itself to be unduly obsessed by static jurispruden-
tial concepts, procedural technicalities and rules of construction born and grown in
foreign soil and appropriate to other developed societies. '

One of the first cases in which the Supreme Court adopted a more
89
conciliatory approach was that of Sajjan Singh v State of Rajasthan. In
this case the court heard that if the chapter on fundamental rights were
not amended, there was a great danger that the much needel socio-
economic reforms would not be able to take place. The court stressed the
fact that the fundamental rights and directive principles formed the basis
of the Constitution and that they should therefore be interpreted
harmoniously. 90 Although the court maintained that the fundamental
rights were not amendable, a new attitude was initiated, namely that
these rights should be interpreted in the light of the ideals set by the
directive principles.
An important case in the development of the relationship between
fundamental rights and directive principles, was Chandra Bhawan
Boarding andLodging Bangalore v The State of Mysore.91 In this case the
petitioner challenged the provisions of the Minimum Wage Act, 1948 on
the basis that it violated Art 14 of the Constitution. He alleged that the act
conferred 'unguided and uncontrolled' discretion to the government to
fix minimum wages, which interfered with the freedom of trade. The state
replied that in terms of the directive principles it was its duty to provide
a basis for minimum wages.
The court ruled that there was no conflict between the fundamental
rights and directive principles and that they were 'complementary and
supplementary'. Directive principles enable the state to place various
duties on its citizens, and if such duties are not fulfilled the 'hopes and
aspirations aroused by the Constitution will be belied if the minimum of
the lowest of our citizens are not met'. The court concluded as follows:
'Freedom to trade does not mean freedom to exploit. The provisions of the Constitution
are not erected as barriers to progress. They provide a plan for orderly progress towards
the social order contemplated by the preamble to the Constitution . . . While rights
conferred under Part 392 are fundamental, the directives given under Part 493 are
fundamental in the governance of the country. We see no conflict on the whole between

87 Sharma op cit note 5 at 26.

88 Ibid.
89 AIR 1965 SC 845.
90 Supra at 846.
91 1970 SCR 600.
92 Fundamental rights.
93 Directive principles.
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS

the provisions contained in Part 3 and Part 4. They are complementary and
supplementary to each other.'

This equality of status of the chapters on fundamental principles and

directive principles was formulated as follows in KesavanandraBharati v
94
State of Kerala
'Perhaps the best way of describing the relationship between the fundamental rights of
individual citizens, which imposed corresponding obligations upon the State and the
directive principles, would be to look upon the directive principles as laying down the path
of the country's progress towards the allied objectives and aims stated in the Preamble,
with fundamental rights as the limits to that path, which could be mended or amended by
displacements, replacements or curtailments of enlargements of any part according to the
needs of those who had to use the path.'

The second phase was thus characterized by the Supreme Court's view
that instead of there being a hierarchy, the fundamental rights and
directive principles were complementary. The reasoning in this phase was
as follows:
" The duty of the court is to establish and maintain a balance between the
interests of the individual and the obligation of the state to undertake
socio-economic programmes for the benefit of all the people.
" Rather than asking which of the sets of principles carries more weight,
the directive principles should be used as an instrument to interpret and
better understand the scope of fundamental rights.
" The courts were inclined to be more pragmatic in comparison with the
previous dogmatic stance, which left very little room for the state to
fulfil its constitutional duties.

3.3 Directiveprinciplesas the spirit of the Constitution

The current phase of development in the relationship between funda-
mental rights and directive principles is characterized by the activist role
that the courts are playing in effecting socio-economic change. This
approach is based on primarily two arguments. The first is that it was the
intention of the framers of the Constitution that the state should not only
be aware of what was expected of it, but that it should have constitutional
support for undertaking certain socio-economic projects. The second is
that, due to the conservative approach of the courts through the years,
the state has not succeeded in effectively fulfilling its obligations as
formulated in the directive principles. The desperate conditions in which
millions of people still found themselves, necessitated a joint approach by
the legislature, the executive and the judiciary to address the intense
socio-economic disparities.

94 1973 4 SCC 225.

 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

The new philosophy was reflected in the watershed case in 1977 of

Maneka Gandhi v Union of India.95 Since this case the courts have been
taking an increasingly active position in addressing the plight of the
underprivileged. The Supreme Court held that the preamble and the
directive principles represented the contours and parameters of public
interest and that state action could limit certain individual rights if this was
in the public interest.
Fundamental to this new approach is the belief that the function of the
courts is not only to interpret the law but 'to make it by imaginatively
sharing the passion of the Constitution for social justice' .96 The active role
of the courts since the Maneka Gandhi case has gained such momentum
that 'by-an affirmative action the courts are trying to force the government
to create favourable conditions for effective realisation of the new
97
individual, collective, diffuse rights'.
The status of the directive principles was enhanced by Art 31c, which
was included in the Twenty-Fifth Amendment in 1971. This amendment
and the Forty-Second Amendment in 1976 gave primacy to the directive
principles in certain circumstances over fundamental rights. The amend-
ments were introduced by the Congress Government in the belief that it
was the only way to give effect to the directive principles without their
being restricted by fundamental rights.
The early 1980s witnessed a resurgence of the debate on fundamental
rights and directive principles with the case of Minerva Mills Ltd v Union
of India.98 The petitioners owned a textile company which had been
nationalized under the Sick Textile Undertaking (Nationalization) Act,
1974. The petitioners questioned the constitutional validity of the act as
well as the amendment to the Constitution. 99 Section 55 of the
amendment stated that no amendment to the Constitution could be called
into question by any court and that there was no limitation on the power
of parliament to amend the Constitution.100
The court held that the amendment was void due to the fact that
parliament could not distort the Constitution out of recognition by
amending it.101 The petitioners argued that fundamental rights could not
be infringed and that the disputed Art 31c 'virtually abrogates and
destroys fundamental rights in normal times'.

95 1978 1 SCC 248.

96 Singh 'Judicial socialism and promises of liberation: Myth and Truth' 1986 Journalof the Indian Law
Institute 338.
97 Ibid.
98 AIR 1980 SC 1789.
99 Forty-Second Amendment, 1976.
100 a368.
101 Supra note 98 at 1798.
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS

The court declared that parliament had not the power to 'destroy' the
guarantees of the fundamental rights to achieve the goals set by the
directive principles. 10 2 It concluded that:
'The goals set out in Part 4 (directive principles), have therefore, to be achieved without
the abrogation of the means provided for by Part 3 (fundamental rights). It is in this sense
that Parts 3 and 4 together constitute the core of our Constitution and combine to form
its conscience. Anything that destroys the balance between the two parts will ipso facto
03
1
destroy an essential element of the basic structure of our Constitution.'

The court concluded that parliament had acted outside its authority by
giving precedence to the directive principles over the fundamental rights
of Arts 14 and 19.
This decision was questioned and overruled by the Supreme Court in
Sanjiev Coke Mfg Co v M/s Bharat Coking Coal Ltd.10 4 The court
suggested that the part of the Minerva case which dealt with Art 31c was
an obiter dictum and therefore not binding. The court therefore ruled that
the Coking Coal Mines (Nationalization) Act, 1972 was protected by Art
31c of the Constitution and had preference over the fundamental rights on
the basis that it gave effect to Art 39(6)105 of the directive principles.
The decision of the court in Sanijiev Coke supports the argument that
'the fundamentalness of the directives is based on natural law and they
are equally fundamental along with fundamental rights'.t°6
The uncertainty of the two conflicting decisions by the Supreme Court
was settled in State of Tamil Nadu v L Abu Kavier Bai.1 07 In this case the
court held that although the directive principles were not enforceable, it
was the duty of the court to make a real attempt to harmonize them with
the fundamental rights. The court referred to the decision of the
Constituent Assembly to provide for two separate chapters:
'We must appreciate that the reason why the founding fathers of our Constitution did not
advisedly make these principles enforceable was perhaps due to the vital consideration of
giving the Government sufficient latitude to implement these principles from time to time
according to capacity, situations and circumstances that may arise.'108

The court emphasized that if the decisions of various courts over the years
were compared, it was clear that the court should 'make a real attempt at
harmonizing and reconciling the directive principles and the fundamental
rights and any collision between the two should be avoided as far as

102 Supra note 98 at 1806.

103 Supra note 98 at 1807.
104 AIR 1983 SC 239.
105 The state shall endeavour to ensure 'that the ownership and control of the material resources of the
community are so distributed as best to serve the common good'.
106 K J Reddy 'Fundamentalness of Fundamental Rights and Directive Principles in the Indian
Constitution' 1980 Journalof the Indian Law Institute 407.
107 AIR 1984 SC 725.
108 Supra note 107 at 735.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS

possible'. 109 Therefore, in order for a statute to be upheld, a close nexus

should exist between the statute and the objectives of the specific
directive principle. Such a nexus should be 'reasonable', the protection
given to it by Art 31c becomes 'complete and irrevocable'. 110
The past decade has witnessed a re-evaluation of the courts' role in the
field of fundamental rights and directive principles. Whereas for the first
two decades after the promulgation of the Constitution the Supreme
Court followed a very stringent approach as to the limits of directive
principles, it has lately shown a great interest in the implementation of
directive principles. According to Sathe the Supreme Court 'no longer
considers the principles as less important than fundamental rights but is
willing to restrict the scope of fundamental rights in order to accommo-
date the directive principles'."'
The 'new' role of the courts is in essence the result of years of debate
on the extent of judicial review as well as to what extent the courts should
make themselves accessible to the underprivileged who suffer from a
denial of human rights. The philosophy of the third phase is well
summarized in Randhir Singh v Union of India'1 2 as:
'Hitherto the equality clauses of the Constitution, as other articles of the Constitution
guaranteeing fundamental and other rights, were most often evoked by the privileged
classes for their protection and advancement and for a "fair and satisfactory" distribution
of the buttered loaves amongst themselves. Now, thanks to a rising social and political
consciousness and the forward looking posture of his court, the underprivileged also are
claiming for their rights...'.

The third and current phase of the relationship between fundamental

rights and directive principles has thus been characterized by the
following:
* The courts are much more aware of and attentive to their obligation to
implement socio-economic upliftment programmes and to ensure
113
decent welfare for all.
" This realization has caused the courts to be more sensitive to the
obligations placed on the state by the directive principles. The state has
a duty to all its citizens to adhere to that part of the Constitution which
describes the directive principles as 'fundamental' to the governance of
the country.

109 Supra note 107 at 736.

110 Supra note 107 at 740.
111 Sathe 'Constitutional Law' 1983 Annual Survey of Indian Law 219.
112 AIR 1982 SC 879.
113 'The Supreme Court ought to take not only a correctiveview of its law making function in the sense
of determining upon the validity of laws referred to it consistent with the philosophy of the
constitution, but also a preventative and positive view of such function by acting on its own and
declaring its views on how the spirit and philosophy of the Constitution can be given effect in specific
areas such as those elaborated in the Directive Principles.' Narain 'Judicial Law Making and the
Place of Directive Principles in Indian Constitution' 1985 Journal of the Indian Law Institute 227
DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHTS

* The courts have therefore been using the directives as an instrument to

determine the extent of public interest in order to limit the extension
of fundamental rights. In doing so they have upheld a number of
statutes on the grounds of public interest, which in other circumstances
may have been nullified.*

* This article will be continued under the heading 'The Socio-economic consequences of Directive
Principles of State Policy: limitations on fundamental rights' in the next issue of this journal - Eds.