The Judicial Process in Pursuit of Constitutional Goals and Values

Why it matters here. An unenforceable goal was made enforceable to the extent the State could deliver it, and confined at the point where it could not. That is what pursuit of a constitutional goal looks like when it is done responsibly.

2. By holding the balance between Parts III and IV. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

Facts. A sick textile undertaking was taken over and nationalised, and the Act placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976. Section 55 had inserted clauses (4) and (5) into Article 368; section 4 had widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19.

Held. Both were void. Clause (5) removed all limitations on the amending power and demolished the pillars on which limited government rests; clause (4) removed the courts' power to decide whether a limitation had been exceeded, and a limited power cannot be made unlimited by removing the means of enforcing the limit. The widened Article 31C destroyed the balance between fundamental rights and directive principles, which is itself a basic feature.

Why it matters here. It settles the relation between the goals. Neither Part is subordinate; the harmony between them is itself a constitutional value, and a law that sacrifices one wholly to the other is void.

3. By enforcing Part III against the State. The ordinary work of judicial review.

4. By supplying access. A goal is not pursued if those it is for cannot reach the court. S.P. Gupta v. President of India, AIR 1982 SC 149, and legal aid under Article 39A, given effect in Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360, are the machinery.

5. By naming the value where the text does not. Dignity is not a fundamental right in terms; it appears in the Preamble and has been read into Article 21 in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746, and used in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, and Common Cause v. Union of India, (2018) 5 SCC 1.

The values the Court has named as basic

The lists in Kesavananda were expressly illustrative, and the propositions that have been treated as basic since include: supremacy of the Constitution; the republican and democratic form of government; the secular character of the Constitution; separation of powers; federalism; judicial review; free and fair elections, from Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299; the rule of law; the balance between Parts III and IV, from Minerva Mills; and the independence of the judiciary, from the NJAC decision of 16 October 2015.

The limits of pursuit

A goal is not a jurisdiction. That the Constitution desires a living wage does not authorise a court to fix one. Article 37 says the directive principles are not enforceable by any court, and reading Part III in their light is not the same as enforcing them directly.

Article 44 shows the limit. Sarla Mudgal v. Union of India, AIR 1995 SC 1531, discussed a uniform civil code but decided the case on the Hindu Marriage Act 1955 and section 494 of the Penal Code.

Facts. Hindu husbands converted to Islam and contracted second marriages during the subsistence of their Hindu marriages. The question was whether such a second marriage is valid and whether the husband is guilty of bigamy under section 494.

Held. A Hindu marriage solemnised under the Hindu Marriage Act 1955 can be dissolved only on a ground recognised by that Act, and conversion to Islam does not dissolve it. The apostate husband remains married, the second marriage is void as taking place during the lifetime of the first spouse, and he is liable under section 494.

Why it matters here. The Court pursued the value by deciding the case before it on ordinary legal grounds. Observations about Article 44 did not become a direction to legislate, and no uniform civil code followed.

Capacity. Unni Krishnan's fourteen year limit is the acknowledgment that a goal the State cannot deliver is not made real by declaring it.

Institutional competence. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, holds that judges must not try to run the government.

A worked example

A petition asks the court to direct the State to pay every agricultural labourer a living wage, relying on Article 43.

Is a constitutional goal engaged? Yes, expressly.

Is it enforceable? Not directly. Article 37 excludes enforcement of Part IV.

Can it be pursued indirectly? Yes, so far as it can be connected to Part III. Bonded labour is within Article 23, as Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, held; payment below the statutory minimum wage has been treated as forced labour; and livelihood is within Article 21 on Olga Tellis.

What the court can order. Enforcement of the minimum wage law that exists, and relief against bonded labour.

What it cannot. Fix a living wage, which requires an assessment of the economy that no record before a court contains.

Quick revision

1. The goals are in the Preamble, Part III and Part IV; Article 37 makes Part IV fundamental in governance but not enforceable.
2. Techniques of pursuit: reading Part III in the light of Part IV; holding the balance; enforcing Part III; supplying access; naming values such as dignity that the text does not enumerate.
3. Unni Krishnan, AIR 1993 SC 2178: education read into Article 21 in the light of Articles 41, 45 and 46, and confined at fourteen.
4. Minerva Mills, AIR 1980 SC 1789: the balance between Parts III and IV is itself a basic feature.
5. Values treated as basic: supremacy of the Constitution, democracy, secularism, separation of powers, federalism, judicial review, free and fair elections, rule of law, the Parts III and IV balance, judicial independence.
6. Limits: a goal is not a jurisdiction, Article 37 excludes direct enforcement, capacity constrains, and institutional competence constrains.
7. Sarla Mudgal shows the value pursued by deciding the case on ordinary grounds rather than by directing legislation.

Test yourself

1. Where are the constitutional goals stated, and what is the status of each source? In the Preamble, which is part of the Constitution and a key to its interpretation; in Part III, which is enforceable; and in Part IV, which Article 37 declares fundamental in the governance of the country and a duty of the State in making laws, while expressly providing that it is not enforceable by any court.

2. Describe the characteristic Indian technique for pursuing an unenforceable goal, with a case. Reading a Part III right in the light of the relevant directive principles, so that the goal becomes enforceable to the extent the right will carry it. In Unni Krishnan the right to education was held to flow from Article 21, its content determined by Articles 41, 45 and 46, giving every child a fundamental right to free education up to fourteen years and leaving the rest subject to the State's economic capacity.

3. What did Minerva Mills settle about the relation between the goals? That neither Part III nor Part IV is subordinate to the other and that the balance between them is itself a basic feature of the Constitution. Section 4 of the Forty-second Amendment, which had widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19, was void because it destroyed that balance.

4. Why is "a goal is not a jurisdiction" the essential limit, and what illustrates it? Because Article 37 expressly excludes the enforcement of Part IV by any court, so a directive principle supplies a value for interpretation rather than a power to command. Sarla Mudgal illustrates it: the Court discussed Article 44 and decided the case on the Hindu Marriage Act 1955 and section 494 of the Penal Code, and no uniform civil code followed from its observations.