The Constitutional Philosophy for the Protection of Human Rights

It is a philosophy of dignity rather than of liberty alone. The Preamble's fraternity clause makes dignity the object, and Part IV commits the State to the material conditions of dignity: a living wage, education, health, and the prevention of concentration of wealth. A purely liberal constitution would guarantee freedom from the State and stop.

It is a philosophy of transformation. The Constitution was written for a society with entrenched inequalities of caste, of gender and of wealth, and it does not treat the existing distribution as the baseline. Article 15(3) and article 15(4) permit special provision, article 17 abolishes untouchability, article 23 forbids forced labour, and article 46 requires the promotion of the educational and economic interests of the weaker sections. Those provisions are not exceptions to equality; they are what equality was understood to require.

And it is a philosophy of institutional distrust. Rights are entrenched against the State because the State is the danger, and the remedy is entrenched because a right without a remedy can be withdrawn. That is the lesson the framers took from what [Civil Liberties Under Pre-Independence Law in India] describes.

The two Parts, and why the division was made

The division is the design decision that an examiner most wants explained.

The argument for enforceability. A right that a court cannot enforce is not a right. If the framers had made the Part IV principles enforceable, a citizen could have sued for a living wage.

The argument against. A court cannot order the State to find the money for universal education or health, and a constitution that promises what cannot be delivered discredits itself. Enforceability requires a determinate obligation and a determinate obligor.

The compromise. Put the rights the State must refrain from infringing in Part III and make them enforceable; put the ends the State must pursue in Part IV and make them binding on conscience and on legislation but not on courts.

Article 37's exact words matter. Not enforceable by any court, but fundamental in the governance of the country, and it shall be the duty of the State to apply these principles in making laws. A directive principle is therefore not advice. It is a duty without a judicial sanction.

The international parallel is exact and belongs in an answer. The two Covenants of 1966 made the same division, immediate obligations of respect and ensure in one and progressive realisation in the other. India made the division in 1950.

How the division has been softened

The philosophy is not static, and the modern position is that the two Parts are read together. Three techniques.

Reading Part IV into Part III. The content of article 21 has been enlarged by reference to the directive principles, so that the right to life has been held to include what a life with dignity requires: education, health, livelihood, a clean environment, and legal aid under article 39A.

Using Part IV to judge reasonableness. A restriction on a Part III freedom that serves a directive principle is more readily held reasonable.

Harmonious construction. The rule that the two Parts are complementary and neither is subordinate, worked in [The Conflict Between Part III and Part IV, and How It Was Resolved].

The result is that a directive principle is unenforceable as such and highly effective through article 21, which is a characteristically Indian solution and which an answer should describe rather than celebrate.

The place of duties

Article 51A, inserted by the 42nd Amendment 1976, lists the fundamental duties of every citizen, including to abide by the Constitution, to cherish the noble ideals of the freedom struggle, to uphold the sovereignty, unity and integrity of India, to promote harmony and the spirit of common brotherhood transcending religious, linguistic and regional or sectional diversities, and to renounce practices derogatory to the dignity of women; and, since 2002, to provide opportunities for education to a child between six and fourteen.

Two observations. The duties are not enforceable and no sanction attaches to them. And they were inserted during the Emergency, which is a fact worth stating rather than concealing, because the timing is part of the argument about what a duties chapter is for.

Their value in a human rights answer is as a corrective: the Constitution's philosophy is not only that the citizen has claims against the State but that citizenship carries obligations, and article 51A(e) has been used in the reasoning about the rights of women.

The criticism of the philosophy

An LL.M. answer must give it.

That the division is unstable. If article 21 can be read to include education, health and livelihood, the distinction between enforceable and unenforceable has been eroded by the courts rather than by amendment, which raises the objection taken in [Judicial Activism].

That the transformation has been slow. Untouchability was abolished in 1950 and the statutory machinery to punish it was strengthened in 1989 and again later, which is evidence that the constitutional command was not self executing.

That rights against the State leave private power untouched. Part III binds the State, and most of the inequality the Constitution set out to transform is enforced privately.

And that the emergency exposed the design. Everything worked as intended until a government with a majority used the Constitution's own provisions against it, which is the argument of Module II.

A worked example

An examination question asks for the constitutional philosophy for the protection of human rights in India.

Open with the four elements. Preamble, Part III, Part IV, and the entrenched remedy in article 32.

Characterise it. A philosophy of dignity rather than of liberty alone, transformative rather than conservative, and founded on distrust of State power.

Explain the division. Why the framers made Part IV unenforceable, quoting article 37, and note the parallel with the two Covenants of 1966.

Show how it has been softened. Reading Part IV into article 21, using it to judge reasonableness, and harmonious construction.

Add article 51A, with the observation about its date and its unenforceability.

Criticise it. The instability of the division, the slowness of the transformation, the untouched private sphere, and the Emergency.

Conclude. That the philosophy is best stated as a commitment to the dignity of the individual pursued by three different instruments, a court for what the State must not do, a legislature for what it must do, and a constitutional remedy that makes the first enforceable and the second visible.

What it does NOT mean

Part IV is not advice. Article 37 makes it a duty of the State, though not one a court will enforce directly.

The Preamble is not a source of power. It is a key to the Constitution's purposes and part of the basic structure.

Fundamental duties are not enforceable. No sanction attaches to article 51A.

And the philosophy is not borrowed whole from anywhere. The rights chapter owes much to the American and Irish models and the directives to the Irish, but the combination, with an entrenched remedy, is the Indian contribution.

Quick revision

• Four elements: the Preamble's ends of justice, liberty, equality and fraternity assuring the dignity of the individual; Part III's enforceable rights with art 13; Part IV's unenforceable but fundamental directives with art 37; and art 32's entrenched remedy.
• Three characterisations: dignity rather than liberty alone; transformative rather than conservative; and founded on distrust of State power.
• The division mirrors the two Covenants of 1966, made in India sixteen years earlier.
• Softened by reading Part IV into art 21, by using Part IV to judge reasonableness, and by harmonious construction.
• Art 51A: fundamental duties, unenforceable, inserted by the 42nd Amendment 1976 and added to in 2002.
• Criticism: the division is unstable; the transformation has been slow; private power is untouched; and the Emergency exposed the design.

Test yourself

1. State the four elements of the philosophy. The Preamble, which states the ends; Part III, which confers enforceable rights against the State; Part IV, which states directives that are not enforceable but are fundamental in governance and a duty of the State to apply in making laws; and article 32, which entrenches the remedy as itself a fundamental right.

2. Quote the operative words of article 37 and say why they matter. 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; they matter because they make a directive principle a duty without a judicial sanction rather than mere advice.

3. What international parallel does the Part III and Part IV division have? The division between the International Covenant on Civil and Political Rights, with its immediate obligation to respect and ensure, and the International Covenant on Economic, Social and Cultural Rights, with its obligation of progressive realisation to the maximum of available resources.

4. Give three ways in which the division has been softened. By reading the directive principles into article 21 to give content to the right to life; by using them to judge the reasonableness of a restriction on a Part III freedom; and by the rule of harmonious construction that the two Parts are complementary and neither subordinate.

5. Give two criticisms of the philosophy. That the division between enforceable and unenforceable has been eroded by judicial interpretation rather than by amendment, which raises questions about the judicial role; and that Part III binds the State while much of the inequality the Constitution set out to transform is enforced privately.