The Directive Principles

Article 36 supplies the vocabulary: in Part IV, unless the context otherwise requires, "the State" has the same meaning as in Part III, which is [Why the Definition of "State" Decides Everything].

Part IV, article by article

Article 38 requires the State to promote the welfare of the people by securing a social order in which "justice, social, economic and political, shall inform all the institutions of the national life". Clause (2), added by the Forty-fourth Amendment 1978, requires it to minimise inequalities in income and eliminate inequalities in status, facilities and opportunities, among individuals and among groups.

Article 39 contains six principles: (a) an adequate means of livelihood for citizens, men and women equally; (b) that ownership and control of the material resources of the community are "so distributed as best to subserve the common good"; (c) that the economic system does not concentrate wealth to the common detriment; (d) "equal pay for equal work for both men and women"; (e) that the health of workers and the tender age of children are not abused; and (f) that children develop "in conditions of freedom and dignity", substituted by the Forty-second Amendment 1976. Clauses (b) and (c) are the two article 31C protects.

Article 39A, inserted by the Forty-second Amendment 1976, requires equal justice and "free legal aid, by suitable legislation or schemes", so that justice is not denied by economic or other disability. Article 40: village panchayats endowed with the powers of units of self-government, now given effect by Part IX, which is [Grass Root Democracy: The Panchayats].

Article 41: the right to work, to education and to public assistance in unemployment, old age, sickness and disablement, "within the limits of its economic capacity and development". Article 42: just and humane conditions of work, and maternity relief. Article 43: a living wage, conditions of work ensuring a decent standard of life, and the promotion of cottage industries. Article 43A, added in 1976: the participation of workers in the management of industry. Article 43B, added by the Ninety-seventh Amendment 2011: the promotion of co-operative societies.

Article 44: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." That single sentence is [A Uniform Civil Code].

Article 45, as substituted by the Eighty-sixth Amendment 2002: early childhood care and education below six, its former content having moved into Part III as article 21A, which is [Article 21A and the Right to Education Act].

Article 46: the educational and economic interests of the weaker sections, in particular the Scheduled Castes and Scheduled Tribes, and their protection from social injustice and exploitation. Article 47: raising nutrition, the standard of living and public health as "among its primary duties", and prohibiting intoxicating drinks and drugs injurious to health except for medicinal purposes. Article 48: agriculture and animal husbandry on modern and scientific lines, and prohibiting the slaughter of cows, calves and other milch and draught cattle. Article 48A, added in 1976: protection of the environment, forests and wild life. Article 49: protection of monuments of national importance. Article 50: "The State shall take steps to separate the judiciary from the executive in the public services of the State."

Article 51: the promotion of international peace and security, in four limbs, of which (c) is "foster respect for international law and treaty obligations" and (d) is to encourage the settlement of international disputes by arbitration. Note the number: this is not the fundamental duties article. See [The Fundamental Duties].

What Part IV has actually produced

A directive principle cannot be sued on, and it is used every day, by three routes.

It supplies content. Where a fundamental right is worded broadly, Part IV decides what it contains. That is how "life" in article 21 came to include livelihood, shelter, health and education, in [Livelihood and Shelter] and [Health and the Environment].

It justifies a restriction, because one giving effect to a directive principle is far more likely to be held reasonable, which is why so much economic legislation survives. And it disciplines Parliament, because the harmony between the two Parts is a basic feature.

The three cases in the argument

Facts. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, (1973) 4 SCC 225, decided 24 April 1973. The petitioner, head of a religious institution, moved the Supreme Court in 1970 under article 32 for his rights under articles 25, 26, 14, 19(1)(f) and 31, asking that the Kerala Land Reforms Act 1963 be declared void. During the case the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments were passed and he was allowed to challenge them. The Twenty-fifth had inserted article 31C, immunising laws made for article 39(b) and (c) from articles 14, 19 and 31, and providing that a law declaring itself to be for that purpose could not be questioned in any court.

Held. The amending power in article 368 is wide but cannot damage or destroy the basic structure. On Part IV the Court declined to treat the two Parts as rivals: Sikri C.J. held that both "have to be balanced and harmonised", because "then alone the dignity of the individual can be achieved", and the judgment adopts Granville Austin's description of Parts III and IV as "the conscience of the Constitution". Article 31C's immunity stood, but its second limb was struck down, as the Constitution's own footnote records.

Why it matters. It refused the choice. Parliament could prefer a directive principle to a fundamental right in a defined field, but it could not also make itself the judge of whether it had done so.

Facts. Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789, (1981) 1 SCR 206, decided 31 July 1980 by a Bench of five. A sick textile undertaking, taken over and then nationalised, challenged sections 4 and 55 of the Forty-second Amendment 1976. Section 4 had widened article 31C to protect a law giving effect to all or any of the principles in Part IV, not merely article 39(b) and (c).

Held. Section 55 was void: a limited amending power is itself a basic feature and "the power to destroy is not a power to amend". Section 4 was also void. The directive principles "are fundamental in governance of the country", but "to destroy the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure." Parts III and IV "are like two wheels of a chariot, one no less important than the other. Snap one and the other will lose its efficacy." The Constitution "is founded on the bed-rock of the balance between Parts III and IV", and "this harmony and balance ... is an essential feature of the basic structure". Bhagwati J. dissented on section 4.

Why it matters. It is the answer to the whole argument, and neither Part is subordinate. The rights in Part III are "not an end in themselves but are the means to an end. The end is specified in Part IV", and those goals must be reached without abrogating the means.

Facts. Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178, (1993) 1 SCC 645, decided 4 February 1993 by a Bench of five. Private professional colleges challenged State capitation fee legislation.

Held. "The citizens of this country have a fundamental right to education. The said right flows from Article 21." But its "content and parameters have to be determined in the light of Articles 45 and 41", so the right is to free education until fourteen and thereafter subject to the economic capacity of the State. Parts III and IV "are supplementary and complementary to each other", and the fundamental rights "must be construed in the light of the Directive Principles".

Why it matters. It is the clearest demonstration of the first route: articles 41 and 45 were not enforced but read, and an unenforceable direction became the measure of an enforceable right, including its limit.

Part III against Part IV

A worked example

A State fixes a minimum wage far above the market rate for a trade and requires employers to provide creches. Employers challenge it under article 19(1)(g).

Step one, can the employers rely on Part IV? No, and neither can they be defeated by it directly. Article 37 keeps it out of court as a source of rights and of obligations alike.

Step two, how does Part IV enter? Through the word "reasonable" in article 19(6). The State points to article 43, a living wage, and to article 39(e) and (f) on the health of workers and children.

Step three, does that settle it? No. The court still asks whether this law, on these facts, is reasonable. A directive principle is a strong reason, not a conclusive one.

Step four, suppose the Act says it shall not be questioned for inconsistency with articles 14 and 19, and declares conclusively that it is for a directive principle. That is article 31C territory, and both halves fail. After Minerva Mills the protection reaches only laws giving effect to article 39(b) and (c); and Kesavananda struck down the conclusive declaration, because it cannot oust the court's power to see whether the law answers the description.

What it does NOT mean

It does not mean they are unenforceable in effect. They are unenforceable as such, yet read into article 21 they are enforced daily. The principle is not the cause of action; the fundamental right it colours is.

It does not mean Part IV is subordinate to Part III. Minerva Mills refused that formulation as firmly as it refused the reverse. The basic feature is the balance.

It does not mean article 37 has an exception. Every case that seems to enforce a directive principle is in fact enforcing article 14, 19 or 21, with the principle supplying its content.

Quick revision

• Article 37: not enforceable by any court, but "nevertheless fundamental in the governance of the country", and a duty on the State to apply them in making laws. Learn all three limbs.
• Article 36: "the State" means what it means in Part III. The Part runs from article 36 to article 51. Article 51 is international peace and security, not the fundamental duties article.
• Amendments: the Forty-second 1976 added articles 39A, 43A and 48A and substituted 39(f); the Forty-fourth 1978 added 38(2); the Eighty-sixth 2002 substituted 45; the Ninety-seventh 2011 added 43B.
• Three uses: supplying the content of a fundamental right, justifying a restriction, and disciplining the amending power.
• Kesavananda (1973): the two Parts must be balanced and harmonised; article 31C's conclusive declaration struck down.
• Minerva Mills (1980): two wheels of a chariot; the balance is a basic feature; section 4 of the Forty-second Amendment, widening article 31C, is void; Bhagwati J. dissenting.
• Unni Krishnan (1993): the two Parts are supplementary and complementary; articles 41 and 45 fix both the content and the limit of the right to education.

Test yourself

1. Quote article 37 and set out its three limbs. Explain what "fundamental in the governance of the country" adds to a provision that no court will enforce.

2. Name the articles of Part IV dealing with legal aid, panchayats, a uniform civil code, the environment and the separation of the judiciary.

3. Explain the three ways a directive principle affects a case although article 37 bars its enforcement.

4. Trace article 31C from 1971 through Kesavananda and the Forty-second Amendment to Minerva Mills.

5. "The directive principles are subordinate to the fundamental rights." Evaluate that using Minerva Mills, and name the four amendments that changed Part IV.