The Directive Principles as the Social Justice Programme

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and against moral and material abandonment.

Article 39 is the densest directive on this paper. Clause (a) is the textual ancestor of the right to livelihood; clause (d) is equal pay; clause (e) is the ancestor of both the bonded labour and the child labour legislation; and clause (f) is the ancestor of the juvenile justice legislation.

Article 39A: equal justice and free legal aid

The State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Article 39A was inserted by the Forty-second Amendment, and it is the directive most directly about access rather than about substance. For a disadvantaged group, access is usually the binding constraint, so the article matters more than its position suggests.

Articles 40 to 43

Article 40: the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. The ancestor of Part IX and of the Panchayats extension legislation of 1996.

Article 41: the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Article 42: the State shall make provision for securing just and humane conditions of work and for maternity relief.

Article 43: the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and in particular shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.

Article 43 is the most generous promise in the Constitution and the least delivered, and saying both halves is the honest position.

How the directives actually operate

Four routes, and a candidate should be able to name them.

As an aid to construction. Where a statute is capable of two readings, the one that advances a directive is preferred.

As a measure of reasonableness. A restriction on a fundamental right imposed to give effect to a directive is more readily held reasonable, which is how the two Parts are reconciled rather than opposed.

As content for article 21. A directive read into the right to live with dignity becomes enforceable, which is the route that produced the rights to livelihood, shelter, health, food and education.

And as the justification for a preference. Article 46 is the reason a reservation is treated as advancing equality rather than departing from it.

Worked example

Her Q1's second half, and any question about social justice.

Open with article 37, and give the three consequences, ending on the article 21 route.

Give article 38(2) and stress that it names inequality amongst groups.

Give article 39 clause by clause, and attach each clause to the statute it produced.

Give article 39A, and say access is usually the binding constraint.

Give articles 40 to 43, and be honest about article 43.

Close on the four routes by which a directive operates.

What it does NOT mean

It does not mean the directives are aspirational only. They are fundamental in governance and the State has a duty to apply them.

It does not mean a directive can be enforced. Article 37 is explicit, and the route is through article 21.

And it does not mean Part III and Part IV conflict. The settled position is that they are complementary and neither has primacy over the other.

Quick revision

• Article 37: Part IV is not enforceable by any court, but the principles are fundamental in the governance of the country and it is the duty of the State to apply them in making laws.
• Article 38(1) a social order in which justice, social, economic and political informs all institutions; 38(2) minimise inequalities in income and eliminate inequalities in status, facilities and opportunities, amongst groups as well as individuals.
• Article 39: (a) adequate means of livelihood for men and women equally; (b) material resources distributed to subserve the common good; (c) no concentration of wealth; (d) equal pay for equal work; (e) health and strength of workers and the tender age of children not abused, and no one forced by economic necessity into unsuitable avocations; (f) children to develop in freedom and dignity and be protected against moral and material abandonment.
• Article 39A, from the Forty-second Amendment: equal opportunity in the legal system and free legal aid so that justice is not denied by reason of economic or other disabilities.
• Article 40 village panchayats as units of self-government; 41 public assistance in unemployment, old age, sickness and disablement, within the limits of economic capacity; 42 just and humane conditions of work and maternity relief; 43 work, a living wage, a decent standard of life, leisure, and cottage industries.
• Four routes by which a directive operates: as an aid to construction; as a measure of reasonableness; as content for article 21; and as the justification for a preference.

Test yourself

1. What does article 37 provide, and what follows? Article 37 provides that the provisions of Part IV shall not be enforceable by any court, but that the principles laid down are nevertheless fundamental in the governance of the country and that it shall be the duty of the State to apply these principles in making laws. Three consequences follow. No court will grant a remedy for a breach of Part IV as such, so a petition founded on article 46 alone must fail. But the principles are not decoration: they are declared fundamental in governance and the State has a duty to apply them, so they inform the construction of statutes and the assessment of whether a restriction on a fundamental right is reasonable. And they enter Part III through article 21, because a directive read into the right to live with human dignity becomes enforceable in substance while remaining unenforceable in form. That third consequence is the single most important structural fact about Indian social rights and is the whole subject of the module on judicial activism.

2. Set out articles 38 and 39. Article 38(1) requires the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Article 38(2) requires the State in particular to strive to minimise the inequalities in income and to endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. That second clause is the directive addressed to disadvantaged groups as such, and it should be quoted in any question about the constitutional scheme because it names inequality amongst groups and not merely amongst individuals.

Article 39 requires the State to direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood; that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; that there is equal pay for equal work for both men and women; that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; and that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Article 39 is the densest directive on this paper. Clause (a) is the textual ancestor of the right to livelihood, clause (d) is equal pay for equal work, clause (e) is the ancestor of both the bonded labour and the child labour legislation, and clause (f) is the ancestor of the juvenile justice legislation.

3. What do the remaining directives provide, and how do directives actually operate? Article 39A, inserted by the Forty-second Amendment, requires the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity and in particular to provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities; it is the directive most directly about access rather than about substance, and for a disadvantaged group access is usually the binding constraint.

Article 40 requires the State to organise village panchayats and endow them with the powers necessary to function as units of self-government, and is the ancestor of Part IX and of the Panchayats extension legislation of 1996. Article 41 requires the State, within the limits of its economic capacity and development, to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 42 requires provision for securing just and humane conditions of work and for maternity relief. And article 43 requires the State to endeavour to secure to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and to promote cottage industries in rural areas; it is the most generous promise in the Constitution and the least delivered, and an honest answer says both halves.

Directives operate by four routes. As an aid to construction, so that where a statute admits of two readings the one advancing a directive is preferred. As a measure of reasonableness, so that a restriction on a fundamental right imposed to give effect to a directive is more readily upheld, which is how the two Parts are reconciled rather than opposed. As content for article 21, which is the route that produced the enforceable rights to livelihood, shelter, health, food and education. And as the justification for a preference, since article 46 is the reason a reservation is treated as advancing equality rather than departing from it.