Article 46, Article 47, and the Weaker Sections

And it is the textual peg for the right to health. The right to health and to medical care entered article 21 as part of the right to live with human dignity, and article 47 is the directive that supplies its content.

Articles 44 and 45, which complete the range

Article 44: the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

Article 44 is directly relevant to this paper, because personal law is where the disadvantage of women within a community is deepest, and because India's declarations to the Women's Convention on articles 5(a) and 16(1) correspond exactly to article 44's status as a directive rather than an obligation. [The Women's Convention, and the Standard It Sets] makes the point.

Article 45, as amended by the Eighty-sixth Amendment: the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.

Before the amendment article 45 covered children up to fourteen. When article 21A took the six to fourteen band into Part III, article 45 was recast to cover the years below six. That is the clearest instance in the Constitution of a directive being converted into a fundamental right, and it is a directly usable example on any question about whether social rights can be made enforceable.

The three articles read together

Article 44 addresses disadvantage within a community, and it is the least implemented.

Article 46 addresses disadvantage between communities, and it is the most cited.

Article 47 addresses disadvantage of condition, nutrition, standard of living and health, and it uses the strongest language.

And article 45 shows the exit route: a directive can become a right, and one has.

Worked example

Her Q1's second half.

Quote article 46 in full, and take its four working phrases in turn.

Give the three reasons it matters: warrant for preference, reach beyond the enumerated groups, and the protective limb.

Give article 47 and point out among its primary duties.

Give article 44 and connect it to India's declarations to the Women's Convention.

Give article 45 and the Eighty-sixth Amendment as the example of a directive becoming a right.

What it does NOT mean

It does not mean article 46 is enforceable. Article 37 applies to it like every other directive.

It does not mean weaker sections is a defined category. It is not, deliberately.

And it does not mean article 44 obliges a uniform civil code. It requires the State to endeavour.

Quick revision

• Article 46: promote with special care the educational and economic interests of the weaker sections, and in particular the Scheduled Castes and the Scheduled Tribes, and protect them from social injustice and all forms of exploitation.
• Four working phrases: weaker sections, the widest phrase in the Constitution and available where no other names a group; educational and economic interests; special care, which is more than evenhandedness; and a protective limb against social injustice and all forms of exploitation.
• Three reasons it matters: it is the warrant for preference where 15(4) and 16(4) merely permit; it reaches groups the enumerated provisions do not; and it carries protection as well as promotion.
• Article 47: the raising of nutrition and the standard of living and the improvement of public health are among its primary duties, stronger language than the rest of Part IV, plus prohibition of intoxicating drinks and injurious drugs except for medicinal purposes.
• Article 44: endeavour to secure a uniform civil code, and it corresponds exactly to India's declarations on articles 5(a) and 16(1) of the Women's Convention.
• Article 45, as amended by the Eighty-sixth Amendment: early childhood care and education until six, the band left behind when article 21A took six to fourteen. The clearest instance of a directive becoming a fundamental right.

Test yourself

1. What does article 46 provide, and which of its words do the work? It provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Four phrases do work. Weaker sections is the widest expression the Constitution uses for a disadvantaged group: it is undefined, it is not confined to caste, and it is capable of covering any group whose position is weak, so where a group is named nowhere else this is the phrase available to it. Educational and economic interests names the two fields on which almost every group on this paper is disadvantaged. Special care is not equal care: the article requires more than evenhandedness, which is why it is the directive most often cited as the affirmative justification for a preference. And the closing words, protect them from social injustice and all forms of exploitation, impose a protective obligation, making article 46 the directive counterpart of articles 17, 23 and 24 and of the protective criminal statutes.

2. Why does article 46 matter more than its position in an unenforceable Part suggests? For three reasons. It is the constitutional warrant for preference: articles 15(4), 16(4) and 335 permit special provision, whereas article 46 requires the State to promote with special care, so when a court is asked whether a preference is consistent with equality, article 46 supplies the affirmative case and not merely the permission, and that is why it is quoted so heavily in the reservation jurisprudence. It reaches groups the enumerated provisions do not: articles 15(4) and 16(4) speak of socially and educationally backward classes and of the Scheduled lists, whereas article 46's weaker sections is wider than both, so a group that has no list and no schedule still has a directive addressed to it. And it carries a protective limb as well as a promotional one: most of Part IV is about the provision of benefits, whereas article 46 ends with protection from social injustice and all forms of exploitation, which is exactly what the atrocities legislation, the bonded labour legislation and the child labour legislation deliver.

3. What do articles 44, 45 and 47 add? Article 47 requires the State to regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties, and in particular to endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Two observations follow: the words among its primary duties are unusual, because most directives use strive, endeavour or make provision, and this one describes the obligation as a primary duty, which is stronger language than the rest of Part IV uses; and it is the textual peg for the right to health, which entered article 21 as part of the right to live with human dignity and takes its content from this article.

Article 44 requires the State to endeavour to secure for the citizens a uniform civil code throughout the territory of India. It is directly relevant here because personal law is where the disadvantage of women within a community is deepest, and because India's declarations to the Women's Convention on articles 5(a) and 16(1), that she will abide by those provisions in conformity with her policy of non-interference in the personal affairs of any community without its initiative and consent, correspond exactly to article 44's status as a directive rather than an obligation.

Article 45, as amended by the Eighty-sixth Amendment, requires the State to endeavour to provide early childhood care and education for all children until they complete the age of six years. Before the amendment it covered children up to fourteen; when article 21A took the six to fourteen band into Part III as a fundamental right, article 45 was recast to cover the years below six. That is the clearest instance in the Constitution of a directive being converted into a fundamental right, and it is a directly usable example on any question about whether social rights can be made enforceable: they can, and one has been.

Read together, the four articles cover different kinds of disadvantage. Article 44 addresses disadvantage within a community and is the least implemented. Article 46 addresses disadvantage between communities and is the most cited. Article 47 addresses disadvantage of condition, in nutrition, standard of living and health, and uses the strongest language. And article 45 shows the exit route.