The Preamble, Part III and Part IV

Article 13 is the enforcing provision, worked in [Article 13, and the Doctrine of Eclipse].

The rights themselves, grouped as the Constitution groups them:

Equality, articles 14 to 18: equality before the law and the equal protection of the laws; prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, with the enabling clauses in 15(3) and 15(4); equality of opportunity in public employment, with 16(4); abolition of untouchability; and abolition of titles.

Freedom, articles 19 to 22: the six freedoms with their reasonable restrictions; protection in respect of conviction for offences; protection of life and personal liberty; the right to education in article 21A; and protection against arrest and detention.

Against exploitation, articles 23 and 24: prohibition of traffic in human beings and forced labour; prohibition of the employment of children below fourteen in factories, mines or other hazardous employment.

Freedom of religion, articles 25 to 28.

Cultural and educational rights, articles 29 and 30, worked in [Human Rights of Minorities].

Remedies, articles 32 to 35.

What Part III contributes. Enforceable claims. A person may go to a court and have a law declared void or an act restrained.

What it cannot do. Three limits. It binds the State and, with stated exceptions, not private persons. It is largely negative, telling the State what not to do rather than requiring it to provide anything. And it can be suspended in its enforcement during an emergency, subject to articles 20 and 21.

Part IV: articles 36 to 51

Article 36 applies the definition of the State in article 12 to this Part.

Article 37 is the operative provision: the provisions of this Part shall not be enforceable by any court, but the principles 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.

The principles, grouped by what they are for.

Social and economic order. Article 38, 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 national life, and to minimise inequalities in income, status, facilities and opportunities. Article 39, the specific directives on livelihood, distribution of material resources, prevention of concentration of wealth, equal pay for equal work for men and women, the health and strength of workers, and the protection of children against abuse and exploitation. Article 39A, equal justice and free legal aid.

Labour and welfare. Articles 41 to 43A: the right to work, education and public assistance in cases of unemployment, old age, sickness and disablement; just and humane conditions of work and maternity relief; a living wage and conditions of work ensuring a decent standard of life; and the participation of workers in management.

Education and health. Article 45, early childhood care and education for children below six, as recast when article 21A was inserted; article 47, the duty to raise the level of nutrition and the standard of living and to improve public health.

Village panchayats, uniform civil code, cottage industries, environment and monuments. Articles 40, 44, 43B, 48A and 49.

Justice and international relations. Article 50, separation of the judiciary from the executive; article 51, promotion of international peace and security, including the endeavour to foster respect for international law and treaty obligations, which is the constitutional route by which the Covenants enter Indian reasoning.

What Part IV contributes. The positive obligations. Everything the State must build rather than refrain from doing, and the standard against which its legislation is measured.

What it cannot do. It cannot be enforced by a court as such, so a citizen cannot sue for a living wage or for public health.

The three read together

The most useful way to hold the three is as answers to three different questions.

The Preamble answers: what is this for? Dignity, equality, justice, liberty, fraternity.

Part III answers: what may the State not do to me? Enforceable, immediate, negative, against the State.

Part IV answers: what must the State do for us? Binding on legislation, progressive, positive, unenforceable in a court.

And article 51A adds a fourth: what do I owe? Unenforceable duties of the citizen.

An examiner rewards a candidate who can say why all four are needed. Rights alone produce a State that does nothing and violates nothing. Directives alone produce promises with no remedy. The Preamble alone produces aspiration. And a Constitution with rights but no remedy is the one described in [Civil Liberties in England].

A worked example

A State fails to provide primary schools in a district, and a child cannot go to school.

Under the Preamble? Nothing directly. It confers no right.

Under Part IV? Article 45 and article 41 speak to it, but by article 37 they are not enforceable by any court.

Under Part III? Article 21A, inserted by the 86th Amendment, makes free and compulsory education for children of six to fourteen a fundamental right, and the claim lies.

And before article 21A existed? The claim was made under article 21, the Court having read the right to education into the right to life by reference to the directive principles, which is the technique described in [The Constitutional Philosophy for the Protection of Human Rights].

What does that sequence show? That the directive principle came first, was read into article 21 by a court, and was then written into Part III by Parliament. The three Parts are stages of one process, not three separate compartments.

What it does NOT mean

The Preamble is not enforceable. It guides construction and is part of the basic structure.

Part III is not confined to citizens. Articles 14, 20, 21, 22, 25 and others apply to any person; articles 15, 16, 19, 29 and 30 are confined to citizens or to sections of them.

Part IV is not merely aspirational. Article 37 makes it a duty of the State in making laws.

And article 51A is not enforceable at all. No sanction attaches to it.

Quick revision

• Preamble: sovereign socialist secular democratic republic; justice social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; fraternity assuring the dignity of the individual and the unity and integrity of the Nation; adopted 26 November 1949; socialist, secular and integrity inserted in 1976; not a source of power, a key to interpretation, and part of the basic structure.
• Part III, arts 12 to 35: art 12 the State; art 13 inconsistent laws void; equality arts 14 to 18; freedom arts 19 to 22 with art 21A; against exploitation arts 23 and 24; religion arts 25 to 28; cultural and educational arts 29 and 30; remedies arts 32 to 35.
• Part IV, arts 36 to 51: art 37 not enforceable but fundamental in governance and a duty in making laws; social and economic order arts 38, 39 and 39A; labour and welfare arts 41 to 43A; education and health arts 45 and 47; art 50 separation of judiciary and executive; art 51 international law and treaty obligations.
• Art 51A: fundamental duties, unenforceable.
• The four answer four questions: what is this for; what may the State not do to me; what must it do for us; and what do I owe.

Test yourself

1. What are the three propositions about the legal effect of the Preamble? That it is not a source of power; that it is a key to the interpretation of ambiguous provisions; and that it is part of the Constitution and amendable, but that the values it declares form part of the basic structure.

2. Which article defines the State, and why does it matter? Article 12, which includes the Government and Parliament of India, the Government and Legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India; it matters because most of Part III operates only against the State.

3. Give the three limits of Part III. It binds the State and, with stated exceptions, not private persons; it is largely negative, telling the State what not to do; and its enforcement can be suspended during an emergency, subject to articles 20 and 21.

4. Which directive principle brings international human rights law into Indian reasoning? Article 51(c), the endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another.

5. What does the history of the right to education show about the relation between the Parts? That a directive principle in articles 41 and 45 was read into article 21 by the courts and was then written into Part III as article 21A by Parliament, so that the Parts are stages of one process rather than separate compartments.