Directive Principles, and the Constitutionalism of Positive Duty

The administrative and legal core. Article 40: organisation of village panchayats. Article 44: a uniform civil code, which is the whole of MU's topic 4. Article 45: early childhood care and education for children below six years. Article 46: promotion of the educational and economic interests of the Scheduled Castes, the Scheduled Tribes and other weaker sections. Article 48: organisation of agriculture and animal husbandry. Article 48A: protection of the environment and safeguarding of forests and wildlife. Article 49: protection of monuments. Article 50: separation of the judiciary from the executive. Article 51: promotion of international peace and security, which is the foundation of Module IV.

Note which two are borrowed by other parts of this paper. Article 44 belongs to Module III and article 51 to Module IV, and each is taught in its own chapter rather than here.

The relationship with Part III, in four stages

Stage one: Part III prevails. In State of Madras v. Champakam Dorairajan, AIR 1951 SC 226; 1951 SCR 525. Facts. A Madras Government communal Order allocating seats in engineering and medical colleges by community, defended on the ground that article 46 required the State to promote the interests of weaker sections. Held. The Order void: article 29(2) forbids denial of admission to a State-maintained or State-aided institution on grounds only of religion, race, caste or language, and the Directive Principles, being expressly unenforceable, must conform to and run subsidiary to the fundamental rights. Why it matters here is the immediate consequence: Parliament responded with the Constitution (First Amendment) Act 1951, which inserted article 15(4), and the whole of the reservation jurisprudence in Module III begins there.

Stage two: Parliament gives some directives priority. Article 31C, inserted by the Twenty-fifth Amendment 1971, provided that no law giving effect to the policy in article 39(b) or (c) should be void for inconsistency with article 14 or article 19, and that no such law should be called in question in any court on the ground that it does not give effect to that policy. The Forty-second Amendment 1976 widened it to cover a law giving effect to any of the Directive Principles.

Stage three: the Court accepts the narrower priority and rejects the wider. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225, the Court upheld the first part of article 31C but struck down the second, the clause excluding judicial inquiry into whether the law gave effect to the stated policy, because that would have made the declaration conclusive and removed review altogether. Why it matters here is that the Court permitted a real preference for two directives while keeping the question of whether the law was in fact such a law for itself.

Stage four: harmony is a basic feature. In Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789. Facts. A challenge to article 368(4) and (5) and to article 31C as widened by the Forty-second Amendment. Held. Clauses (4) and (5) void, saying the power to destroy is not a power to amend; and, on article 31C, that giving the Directive Principles a blanket priority over articles 14 and 19 destroyed the harmony and balance between Parts III and IV, and that harmony is itself part of the basic structure. Why it matters here is that it is the settled answer: neither Part is superior; the Constitution is best served when they run together, and article 31C survives only in its original, narrower form.

How the principles decide cases in practice

By giving content to article 21. In Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; (1985) 3 SCC 545. Facts. The eviction of pavement and slum dwellers in Bombay under the Bombay Municipal Corporation Act 1888, the dwellers arguing that eviction would deprive them of their livelihood and so of life. Held. The right to life in article 21 includes the right to livelihood, since no person can live without the means of living, and reasoned from articles 39(a) and 41 of Part IV in reaching that conclusion; the eviction was nonetheless permitted subject to procedural safeguards, notice and a hearing. Why it matters here is that it is the standard example of an unenforceable directive becoming enforceable through the door of article 21.

By converting a directive into a right, and then Parliament converting it into an article. In Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178. Facts. Petitions by private medical and engineering colleges about capitation fees and the right to establish such institutions. Held. The right to education flows from article 21, and that it is to be understood in the light of articles 41 and 45: every child has a right to free education until the age of fourteen, and thereafter the right is subject to the limits of the State's economic capacity and development. Why it matters here is the sequel. Parliament enacted the Constitution (Eighty-sixth Amendment) Act 2002, inserting article 21A making free and compulsory education for children of six to fourteen years a fundamental right, recasting article 45 for children below six, and adding the duty in article 51A(k). A directive became a judicially recognised right and then a written one.

A worked example

A State enacts a law requiring every employer of more than fifty workers to provide a creche, and fixing the minimum wage of workers in a scheduled employment at a level several employers say will make their businesses unviable. The employers challenge it under article 19(1)(g).

The employers' point is a real one and must be stated fairly. Article 19(1)(g) guarantees the right to carry on any trade or business, and a wage that makes a business unviable restricts it.

The State's answer runs through article 19(6), not through Part IV directly. Article 19(6) permits reasonable restrictions in the interests of the general public. The question is therefore whether this restriction is reasonable, and that is where the Directive Principles do their work: article 42 requires provision for just and humane conditions of work and for maternity relief, and article 43 requires a living wage. A restriction that gives effect to an express constitutional directive is much more readily found reasonable.

Now note what the State cannot say. It cannot say that because article 43 is fundamental in the governance of the country the law is immune from article 19. Since Minerva Mills the only surviving priority is the original article 31C, and that covers only articles 39(b) and (c), which is about material resources and concentration of wealth, not about wages.

And note what a court will not do. It will not order the State to fix a living wage, because article 37 makes the directive unenforceable. It will hold that a State which has fixed one has acted reasonably. That asymmetry is the whole practical meaning of Part IV.

Distinctions

What it does NOT mean

It does not mean the Directive Principles are legally irrelevant. They construe statutes, they colour the reasonableness of restrictions, and they have supplied the content of article 21 in a long line of cases.

It does not mean a citizen can sue to enforce one. Article 37 says so in terms, and Champakam Dorairajan applied it.

It does not mean Part IV is subordinate to Part III today. Champakam said subsidiary; Minerva Mills replaced that with harmony and balance, and made the harmony itself a basic feature.

And it does not mean every directive is equally protected. Only articles 39(b) and (c) enjoy the article 31C priority, and only against articles 14 and 19.

Quick revision

Part IV is articles 36 to 51. Article 37: not enforceable by any court, yet fundamental in the governance of the country, and it is the duty of the State to apply them in making laws. Modelled on the Irish Constitution 1937. Key articles: 38, 39, 39A, 40, 41, 42, 43, 43A, 43B, 44, 45, 46, 47, 48, 48A, 49, 50 and 51. Champakam Dorairajan 1951: the directives run subsidiary to Part III, and the First Amendment answered it by inserting article 15(4). Article 31C 1971 gave laws under articles 39(b) and (c) immunity from articles 14 and 19; Kesavananda upheld that and struck down the clause barring judicial inquiry; the Forty-second Amendment widened it to all directives and Minerva Mills struck the widening down, holding the harmony between Parts III and IV a basic feature. Olga Tellis reads livelihood into article 21 through articles 39(a) and 41; Unni Krishnan reads education into article 21 through articles 41 and 45, and the Eighty-sixth Amendment 2002 then inserted article 21A.

Test yourself

1. What does article 37 say, in its own terms? That the provisions of Part IV shall not be enforceable by any court, but that the principles are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws.

2. What did Champakam Dorairajan decide, and what was Parliament's answer? That a communal Order allocating college seats by community violated article 29(2), and that the Directive Principles must run subsidiary to the fundamental rights. Parliament answered with the First Amendment 1951, inserting article 15(4).

3. Trace article 31C through its two versions. As inserted in 1971 it protected laws giving effect to articles 39(b) and (c) from articles 14 and 19 and barred any inquiry into whether the law gave effect to that policy; Kesavananda upheld the first limb and struck down the second. The Forty-second Amendment widened it to all directives, and Minerva Mills struck that widening down.

4. Name three ways an unenforceable directive still decides a case. By construing an ambiguous statute; by making a restriction on a fundamental right more readily found reasonable; and by supplying content to article 21, as in Olga Tellis and Unni Krishnan.

5. How did the right to education travel from Part IV to Part III? Unni Krishnan read it into article 21 in the light of articles 41 and 45; the Eighty-sixth Amendment 2002 then inserted article 21A making free and compulsory education for children of six to fourteen a fundamental right, recast article 45, and added the duty in article 51A(k).

6. State the settled relationship between Parts III and IV. They are complementary, neither being superior to the other, and the harmony and balance between them is itself part of the basic structure: Minerva Mills.