Why the Social and Economic Rights Went into Part IV

It ranks the rights. Putting liberty in Part III and food in Part IV says, in the structure of the document, that one matters more than the other, which is the opposite of the Karachi Resolution's premise.

And it invites evasion. A government that has done nothing about a directive for seventy years faces no legal consequence at all.

The answer to the criticism

Four answers, and the last is the strongest.

Article 37 is not nothing. The duty to apply the principles in making laws is a real duty, and a great deal of Indian social legislation is enacted under it and defended by reference to it.

They are used to construe statutes and rights. A Part IV principle is regularly used to resolve an ambiguity, and article 39A on legal aid and article 47 on nutrition and public health have both done heavy interpretive work.

They defeat a challenge. Legislation implementing a directive is upheld against a Part III challenge more readily, and articles 31A, 31B and 31C were inserted to protect exactly that legislation.

And the boundary has been crossed anyway. The Supreme Court has read directive principle content into article 21 and thereby made it enforceable: livelihood, shelter, health, food and education all began in Part IV. [The Interrelationship of Fundamental Rights and Directive Principles] traces the doctrine, and [Education: From a Directive to Article 21A] is the case where the crossing was later confirmed by amendment.

What Part IV contains

The heads worth knowing, and [The Contribution of the Directive Principles to Human Rights] takes them in detail.

Article 51(c) is the one Module IV cannot do without, and [Article 51(c), and the Duty to Foster Respect for International Law] is where it is taken.

Worked example

Her Set 1 Q7(a) asks for the contribution of the Directive Principles to the promotion of human rights, and Set 2 Q7(a) asks for the interrelationship. Both need this chapter first.

Quote article 37 in full, all three clauses.

Give the four reasons the Assembly divided the list.

Name the Irish source, and say what was and was not borrowed.

Give the three criticisms, fairly.

Give the four answers, ending on the boundary having been crossed by article 21.

Do not argue that Part IV is as good as Part III. It is not, and the examiner will not believe it. Argue that the division was defensible in 1950 and has been substantially undone since.

What it does NOT mean

It does not mean the Directive Principles are unenforceable in every sense. They cannot found a writ on their own; they can construe a right, defend a statute and enter article 21.

It does not mean the Assembly thought them unimportant. Article 37 calls them fundamental in the governance of the country, which is deliberate language.

And it does not mean Part IV is a dead letter. Most Indian welfare legislation is enacted under it, and a large part of the Supreme Court's article 21 jurisprudence is Part IV content arriving by another door.

Quick revision

• Article 37, three clauses: not enforceable by any court; fundamental in the governance of the country; and the duty of the State to apply these principles in making laws.
• Four reasons for the split: resources, progressive realisation, institutional competence, democratic legitimacy.
• Source: the Constitution of Ireland 1937. India borrowed the form, not the content or the weight.
• Three criticisms: a right without a remedy; the ranking it implies; and the evasion it permits. Jennings called them pious aspirations.
• Four answers: the duty in making laws is real; they construe statutes and rights; they defend legislation, protected by articles 31A, 31B and 31C; and the boundary has been crossed by article 21.
• Key articles: 39(d) equal pay, 39A legal aid, 41 work and public assistance, 42 maternity relief, 43 living wage, 45 early childhood, 47 nutrition and public health, 48A environment, 51(c) international law.

Test yourself

1. What does article 37 say, and why does the whole article matter rather than its first clause? Article 37 provides that the provisions contained in Part IV shall not be enforceable by any court, but that the principles laid down there 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 clauses, and each does separate work. The first removes the remedy, so no writ lies to compel the State to provide a living wage or public assistance. The second gives the Part a constitutional status that ordinary policy documents do not have, describing the principles as fundamental in governance. The third imposes an affirmative duty on the State when it legislates.

Quoting only the first clause misreads the article and makes the rest of Indian constitutional development unintelligible. The second and third clauses are what allow a court to use a directive to resolve an ambiguity in a statute, to uphold welfare legislation against a Part III challenge, and eventually to read directive content into article 21 and thereby enforce it. A student who thinks Part IV is legally inert cannot explain why the right to livelihood, to shelter, to health, to food and to education are enforceable in India today, because every one of them began there.

2. Why did the Assembly put the economic and social claims in Part IV, and how fair are the criticisms? Four reasons. Resources: a right to work, a living wage, public assistance in old age and free legal aid all cost money that the Indian State in 1950 did not have, and a justiciable right the State cannot satisfy produces either judgments nobody obeys or a court effectively setting the budget. Progressive realisation: these claims are met by degrees over time rather than by a single act, so a court asked on a given day whether the right to health has been violated has no measurable standard to apply. Institutional competence: deciding how much of a limited budget goes to hospitals rather than schools is a judgment about priorities among competing goods, and courts have no method for making it. And democratic legitimacy: a programme of social transformation should be carried out by an elected legislature answerable for it, which is the same concern that produced the substitution of procedure established by law for due process.

The criticisms have force. A right without a remedy is not a right, and Jennings called the Principles pious aspirations. The division ranks the claims, saying in the structure of the document that liberty matters more than food, which reverses the premise of the Karachi Resolution that had put them in one list. And it invites evasion, since a government that has ignored a directive for seventy years faces no legal consequence. The fair conclusion is that the division was defensible in the conditions of 1950 and has been substantially undone since, mostly by the courts rather than by Parliament.

3. What did India take from the Irish Constitution, and what did it not take? India took the device: a set of directives addressed to the legislature, sitting beside justiciable rights in the same document and expressly excluded from the jurisdiction of the courts. The Constitution of Ireland of 1937 contains Directive Principles of Social Policy stated to be for the general guidance of the legislature and not cognisable by any court, and the Indian Part IV follows that form closely enough that the borrowing is not in doubt.

What India did not take was the content or the weight. The Irish provision is short and general; the Indian Part IV is long, specific and programmatic, naming a living wage, equal pay for equal work, free legal aid, maternity relief, nutrition, public health, the environment and the fostering of respect for international law. And article 37 gives it a status the Irish text does not claim, by declaring the principles fundamental in the governance of the country and by imposing a duty on the State to apply them in making laws. Those two additions are what later allowed Indian courts to give Part IV real interpretive force, so the borrowing is a starting point and not an explanation of what Part IV became.