The Contribution of the Directive Principles to Human Rights

The doctrinal move is always the same. Article 21 protects life; life means more than animal existence and includes the right to live with human dignity; a person cannot live with dignity without the thing the directive names; therefore the thing the directive names is within article 21 and enforceable by writ.

Its limit should be stated too. The court declares the right; it does not build the hospital. [The Limits: What a Court Cannot Do However Activist] takes that.

The honest assessment

Three things in favour.

Part IV supplied the agenda. Indian welfare legislation is recognisably an attempt to carry out articles 38 to 47, and the correspondence between directive and statute is close.

It supplied the vocabulary. Living wage, equal pay for equal work, free legal aid, public assistance, nutrition and public health are the Constitution's own words, and they set the terms of Indian political argument.

And it supplied the doctrinal bridge. Without Part IV there would have been nothing to read into article 21, and the second generation rights would have had no constitutional home at all.

Three things against.

It is unenforceable on its own, so a person denied a living wage has no remedy under article 43.

Progress has been uneven. Article 44's uniform civil code, article 47's prohibition and article 40's panchayats have had very different fates, and none of the differences is legal.

And the article 21 route is available only to those who can reach a court, which reproduces the access problem that runs through the whole of this paper.

The international frame

Part IV is, almost article for article, the Economic and Social Covenant written a decade and a half early.

Article 41 answers Covenant articles 6, 9 and 13; article 42 answers article 7 and article 10; article 43 answers article 7; article 47 answers articles 11 and 12; article 45 and 46 answer article 13.

And the obligation is described the same way. Article 41's words are within the limits of its economic capacity and development; article 2(1) of the Covenant speaks of achieving progressively the full realisation of the rights to the maximum of its available resources.

So the criticism that Part IV is unenforceable is a criticism that applies to the Covenant as well, and an answer that makes it should say so.

Worked example

Her Set 1 Q7(a), the contribution of the Directive Principles to the promotion of human rights.

Open with article 37, all three clauses, because the question is about a Part that is not enforceable.

Give the four channels as the structure of the answer.

Give the directive against statute table for channel one, four or five rows.

Give the article 21 table for channel four, four or five rows, and give the doctrinal move in one sentence.

Give the honest assessment, three for and three against.

Close on the Covenant parallel, including the matching language about resources.

What it does NOT mean

It does not mean the directives are enforceable. They are not, and everything above works through some other provision.

It does not mean every welfare statute traces to a directive. Many do; the claim should be that Part IV supplied the agenda, not that it is the sole source.

And it does not mean the article 21 route makes Part IV redundant. Only some directives have been read in, and the route needs a court.

Quick revision

• Four channels: mandate for legislation under article 37; construction of statutes and rights; defence under articles 31A, 31B, 31C; and content read into article 21.
• Directive to statute: 39(d) equal remuneration; 39(e) and (f) child labour, Juvenile Justice, POCSO; 39A legal services authorities; 42 maternity benefit; 46 Protection of Civil Rights and atrocities Acts; 47 food security; 48A environmental statutes.
• Read into article 21: livelihood from 39(a) and 41; shelter; health from 39(e), 41, 47; food from 39(a) and 47; legal aid from 39A; education from 41, 45, 46; clean environment from 48A with 51A(g).
• The doctrinal move: life is more than animal existence, includes the right to live with human dignity, dignity requires the thing the directive names, therefore it is within article 21.
• Three for: the agenda, the vocabulary, the doctrinal bridge. Three against: unenforceable alone, uneven progress, and access to a court.
• Covenant parallel: 41 to articles 6, 9, 13; 42 to 7 and 10; 43 to 7; 47 to 11 and 12. Within the limits of its economic capacity and development against to the maximum of its available resources.

Test yourself

1. Through what channels have the Directive Principles contributed to human rights in India? Four. First, as the mandate for legislation: article 37 makes it the duty of the State to apply the principles in making laws, and a great deal of Indian social legislation is enacted under that duty, with a close correspondence between directive and statute. Article 39(d) on equal pay produced the equal remuneration legislation; article 39(e) and (f) on children produced the child labour legislation, the Juvenile Justice Act 2015 and POCSO 2012; article 39A produced the legal services authorities legislation; article 42 produced maternity benefit legislation; article 46 produced the Protection of Civil Rights Act 1955 and the atrocities Act 1989; article 47 produced food security and public health legislation; and article 48A produced the environmental statutes.

Second, as an aid to construction: where a statute admits of two readings the one advancing a directive is preferred, and a directive colours the reasonableness inquiry under article 19 because a restriction serving an object the Constitution commends is more readily upheld. Third, as a defence: article 31C saves a law giving effect to article 39(b) or (c) from challenge under articles 14 and 19, article 31A saves estate acquisition laws, and article 31B with the Ninth Schedule validates specified enactments subject to the basic structure limit. Fourth, and largest, as the content read into article 21, which is what made the second generation rights enforceable in India.

2. Explain the doctrinal move by which a directive becomes enforceable, and give examples. The move is always the same and takes four steps. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Life has been held not to be confined to mere animal existence but to include the right to live with human dignity and all that goes with it, namely the bare necessaries of life. A person cannot live with dignity without the thing the directive names, whether that is a livelihood, shelter, medical care, food or legal representation. Therefore the thing the directive names is within article 21, and being within article 21 it is enforceable by writ under article 32 or article 226.

The examples are the whole of the second generation in Indian law. Livelihood came from articles 39(a) and 41; shelter from 39(a), 41 and 47; health and emergency medical aid from 39(e), 41 and 47; food from 39(a) and 47; free legal aid from 39A; education from 41, 45 and 46, before article 21A confirmed it by amendment; a clean environment from 48A read with the fundamental duty in article 51A(g); and just and humane conditions of work from 42 and 43. The limit of the technique should be stated in the same breath: the court declares the right and cannot build the hospital, so the declaration transfers the problem to administrations and budgets that no writ can enlarge.

3. Assess the contribution honestly, and place it against the international standard. Three points in favour. Part IV supplied the agenda: Indian welfare legislation is recognisably an attempt to carry out articles 38 to 47, and the correspondence is close enough that the statutes can be listed against the directives. It supplied the vocabulary: living wage, equal pay for equal work, free legal aid, public assistance, nutrition and public health are the Constitution's own words and they set the terms of Indian political argument. And it supplied the doctrinal bridge, because without Part IV there would have been nothing for the courts to read into article 21 and the economic and social claims would have had no constitutional home.

Three against. It is unenforceable on its own, so a person denied a living wage has no remedy under article 43 and must construct an article 21 case instead. Progress has been very uneven across the Part, with article 44's uniform civil code, article 47's prohibition and article 40's panchayats having entirely different fates for reasons that are political rather than legal. And the article 21 route is available only to those who can reach a court, which reproduces the access problem running through this whole paper.

Placed against the international standard, Part IV is very nearly the Economic and Social Covenant written fifteen years early: article 41 answers Covenant articles 6, 9 and 13, article 42 answers articles 7 and 10, article 43 answers article 7, and article 47 answers articles 11 and 12. Even the obligation is described in the same way, article 41 speaking of what the State may do within the limits of its economic capacity and development and article 2(1) of the Covenant of achieving progressively the full realisation of the rights to the maximum of its available resources. So the standard criticism that Part IV is unenforceable is one that applies with equal force to the Covenant itself, and an answer that makes the criticism should acknowledge as much.