5g. Polity - Directive Principles

7/23/2019 5g. Polity - Directive Principles

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Chapter in Detail:

Fundamental Rights (Part III of the Indian Constitution) that were discussed in the earlier chapter

are the bedrock of political democracy. They ensure that democracy preails and the roots of

democracy run deep. They are essential for indiidual deelopment ! essential for an indiidualto attain full intellectual" moral and spiritual deelopment.

Ques. 1 : A welfare state is not possible without socio-economic democracy. Discuss the

statement within the framework of Directie !rinciple"

Ans.Political democracy" howeer" remains fragile unless the socio!economic foundations arestrengthened with policies that aim to establish a welfare state. #elfare $tate is a goernment

that takes primary responsibility for the welfare of the people" particularly those who are weak

and ulnerable. It is a state that aims to minimi%e disparities and ensure e&uitable deelopment.Indiidual rights can be effectiely en'oyed and become meaningful only when social security

and economic well being are ensured. emocracy as a political process can only surie when itis sustained with supportie socio!economic order. Thus" the directie principles aim at creatinga new socio!economic order to proide a firm foundation to political democracy in India

irectie Principles of $tate Policy are contained in Part I of the Indian Constitution in *rt.+,!

-. These are instructions/directions gien to all present and future goernments in India!federal

and state goernments to make policies and legislation incorporating these principles. P$Ps"thus guide public policy.

Ques. # : $race the forces which influenced the incorporation of Directie !rinciples into

the constitution"

*ns. The concept of irectie Principles as incorporated in the Constitution of India" isinfluenced b arious factors. Firstly" P$Ps as an idea was borrowed from the constitution of

Ireland. $econdly" 0oernment of India *ct" 1+- contained a set of such 2Instruments of

Instructions3. Thirdly" the leadership of the freedom struggle representing liberal democraticideas of the west chose to include them in the Indian Constitution as moral guidelines for the

public policy of the welfare state. That is" P$Ps were intended to help the 0oernment play a

positie role in rebuilding India as a model democracy with socialist content. Fourthly" the

contemporary socialist ideas had impacted the framers of the constitution. For e4ample" theP$Ps related to worker welfare. Fifthly" the Constituent *ssembly was influenced by the ideas

of 5ahatma 0andhi like Panchayatra'" promotion of illage industries etc.

It is necessary to note that in Part III of the Indian Constitution! Fundamental Rights someimportant economic and social rights are not included" such as right to work" right to education"

social security etc. These rights find place in the irectie Principles.

Constitution of India declares that P$Ps are 2fundamental in the goernance of the country3

(*rt.+,). 6oth the 7egislature and the 84ecutie should apply P$Ps while making andimplementing policies in social and economic spheres.


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Ques. % : Directie !rinciples are mi&ture of socialistic and 'andhian principles. (&amine"

*ns. P$Ps are ery comprehensie in their scope to include almost all aspects of socio!

economic change. They guide $tate actiity in political" economic" social" enironmental"educational" cultural and international areas.

$he D!)!s can be broadly classified into the followin*

cate*ories

$ocialistic

0andhian

$ocial

International

9thers

D!)!s and )ocialism

$ocialism is a worldiew in which the 0oernment makes policies that aim to minimi%e

ine&ualities. 0oernment does so by public ownership of means of production. The aim is to

preent concentration of wealth in a few hands. It grants right to work to the people and actielyinterenes in the socio!economic affairs in faour of poor and ulnerable like elderly and

women.$ocialist policies are necessary in an underdeeloped country like India with large section of thepopulation being poor.

D!)!s that are socialistically oriented are

*rt. +:

*rt +1

*rt. ;

*rt. ; legislate on right to

work and education> liing wage which is e&ual for e&ual work> care of the weaker sections. Thestate is mandated to legislate for securing right to work" right to education and right to public

assistance in case of unemployment" old age" sickness and

disablement.

'andhian !rinciples

The philosophy of 5ahatma 0andhi centres around empowerment of people throughdecentrali%ation of political power to illages and economic power to the illage industries. It is

embodied in the traditional Indian institutions of participatory goernance called Panchayatra'

and ?agarapalika bodies. The economic democracy that 0andhian ideals speak of is based oncottage and illages industries as they are labour!intensie> help in dispersal of power

geographically and also in terms of economic benefits> and preent concentration of wealth.Further" 0andhi'i adocated banning of cow slaughter and banning consumption of into4icatingsubstances.

$he aboe elements of 'andhian ideolo*y are found in the D!)!s in the followin* Articles

of the Constitution

*rt. ;@( Panchayatra')

*rt. ;+ (illage and cottage industries)

*rt. ;, (prohibition)

*rt. ;: (banning of cow slaughter)

D!)!s and )ocial +nte*ration

P$Ps encompass a wide range of $tate actiity. They impose social obligations on federal andthe $tate 0oernments which are to be enacted into law.

0ender disparities> caste e4ploitation> inter!religious diergences on ital areas of social life like

marriage and succession> backwardness of certain social sections like the alits are some of the

social areas in need of change. #hile Fundamental Rights addressed some of the aboe problemson a 'usticiable basis (*rt. -" *rt. = and *rt.,)" P$Ps contain instructions to the 0oernment

to eradicate these social imbalances with public policy!

Protection and deelopment of children (*rt. +1 and ;-)

*rt. ;< (maternity relief)


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*rt. ;; (uniform ciil code)

*rt. ;= (welfare of weaker sections)

*rt. ;, (improement of health standards)

+nternational ,elations

Indian foreign policy" since Independence" has stood for peace in the world and multilateralism.9ur initiation of the non!alignment as the bedrock of foreign policy to defuse global tensions and

build a independent and stable base for national deelopment is a classic e4ample. 9ur support

for decoloni%ation" opposition to apartheid and adocacy of democrati%ation of Anited ?ations

and uniersal and non!discriminatory disarma!ment are consistent with *rt. - which says thefollowingB

$he state shall:

Promote international peace and security

*im at the settlement of international disputes by arbitration.

*lso aim at maintaining 'ust and honourable relations with other countries.

Thus" seeking international peace and cooperation is a Constitutional directie.

thersThere are other irectie Principles which deal with important areas of goernance likeseparating the 'udicial powers from e4ecutie so that there is no arbitrary administration and ciil

liberties are safe (*rt.-@). *lso" preseration of cultural and historical sites (*rt. ;1) #orkers

participation in management (*rt. ;+*) and enironmental directies (*rt. ;:*) are othere4amples.

Characteristics of D!)!s

*mplification of Preamble

$ocio!economic 'ustice

0uidelines for public policy

?on!'usticiable


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D!)!s (laborate on !reambular alues

$ocialist democracy is enshrined in the Preamble to the Indian Constitution In fact" the word

Dsocialist was incorporated into the Preamble by the ;


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$he reason for makin* the D!)!s non 0usticiable are the

followin*:

8conomic resources may not permit. For e4ample" right to work.

$ocial and political deelopment may not be ade&uate. For e4ample" uniform ciil code.

*dministratie and economic constraints For e4ample" free and compulsory education for

children in @ years after the commencement of the Constitution (*rt.;-).

Ques. : +n li*ht of the increasin* *oernance deficit do you think that directie

principles should be made 0usticiable" )upport your ar*ument with suitable e&amples"

*rt. += 2the $tate3 has the same meaning as in Part III (Fundamental Rights).*rt.+,. P$Ps are not enforceable by any court (in case of non!implementation" courts can not

be moed)" but the principles therein laid down are fundamental in the goernance of the countryand it shall be the duty of the $tate to apply these principles in making laws.

*rt.+:. $tate to secure a social order for the promotion of welfare of the people

The $tate shall secure a social order in which 'ustice" social" economic and political" shall

inform all the institutions of national life.

The $tate shall" minimi%e the ine&ualities not only among indiiduals but also amongst

groups of people

*rt.+1. Certain principles of policy to be followed by the $tateB! The $tate shall" in particular"direct its policy towards securing

The right to an ade&uate means to lielihood>

That the ownership and control of the material resources of the community are so

e&uitably distributed that

Concentration of wealth is preented

That there is e&ual pay for e&ual work for both men and women>

Children are not forced by economic necessity to enter aocations unsuited to their age or

strength>

That children are gien opportunities arid facilities to deelop in a healthy manner and in

conditions of freedom and dignity and that children are protected against e4ploitation.


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*rt. +1 *. 8&ual 'ustice and free legal aid. The $tate shall secure that the operation of the legal

system promotes 'ustice" on a basis of e&ual opportunity" and shall" in particular" proide free

legal aid to ensure that opportunities for securing 'ustice are not denied to any citi%en by reasonof economic or other disabilities.

*rt. ;@. 9rganisation of illage panchayats.! The $tate shall take steps to organi%e illagepanchayats ad endow them with such powers and authority as may be necessary to enable them

to function as units of self!goernment.

*rt. ; Right to work" to education and to public assistance in certain cases. The $tate shall"

within the limits of its economic capacity and deelopment" make effectie proision for

securing the right to work" to education and to public assistance in cases of unemployment" oldage" sickness and disablement" and in other cases of undesered want.

Ques. 2 : Directie !rinciples are an important moral input in *oernance policy3.

Discuss"

*ns. Public policy is essentially the policy of the 0oernment. Public policy is made by the

7egislature but 84ecutie and udiciary also contribute to it. Public policy aims at socio!economic change which in a deeloping country like India is largely aimed at remoing the

hardships of the weak. It also has enironmental dimension. udiciary considers P$Ps as an

important moral input in goernment policy. In fact" the $upreme Court" starting fromGeshaananda 6harati case erdict in 1,+ ruled that P$Ps can be a source of reasonable

limitation on Fundamental Rights in pursuit of public interest.

P$Ps influence a wide gamut of goernment policies economic policies like agrarian reform>banking and ta4ation policy> employment generation> political decentrali%ation> closing gender

disparities> factory legislation> unifying personal laws> pre!school child care> eniron!mental"

stability> prohibition> and diesting the e4ecutie of its 'udicial responsibilities and powers.

Ques. 4 : 5,('A is a poster pro*ramme of the *oernment that *ies ri*ht to work a

le*al carnotation. Do you think that to sole the problem of unemployment and make

5,('A moe effectie6 *oernment should make ri*ht to work a fundamental ri*ht"

*ns. In a country with high leel of unemployment" there is a need for right to work as a

measure of social 'ustice. *rt. ;I commits the 0oernment to it. Eoweer" *rt. ; says that rightto work can be gien within the limits of

economic capacity and deelopment. In other words" if the goernment has resources and the

deelopment paradigm permits the same" the right can be gien> It. will help create assets>remoe poerty> lead to better use of human resources> and social indicators will improe.

The ?ational Rural 8mployment 0uarantee *ct


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*rt ;+. 7iing wage" etc." for workers. The $tate shall endeaour to secure" by suitable

legislation or economic organisation or in any other way" to all workers" agricultural" industrial or

otherwise" work" a liing wage" conditions of work ensuring a decent standard of life and fullen'oyment of leisure and social and cultural opportunities and" in particular" the $tate shall

endeaour to promote cottage industries on an indiidual or co!operatie basis in rural areas.

7iing wage means the wage necessary for a person to achiee certain specific standard of

liing. It is different from minimum wage which is set by law and may not meet the re&uirementsof a liing wage.

*rt ;+. * Participation of workers in management of industries.The $tate shall take steps" by

suitable legislation or in any other way" to secure the participation of workers in the managementof undertakings" establishments or other organisations engaged in any industry..

*rt. ;;. Aniform ciil code for the citi%ens.! The $tate shall endeaour to secure for the citi%ens

a uniform ciil code throughout the territory of India.

Ques. 7 : A secular society can be established only throu*h enactin* uniform ciil code.

Do you a*ree" )upport your ar*ument with suitable e&amples"

*ns. B Personal laws B Personal laws relate to marriage diorce" maintenance" succession" and

adoption> they also hae ta4 and other implications. * secular and democratic society re&uires

the common law that fosters national and social integration.

*rt. ;; directs that 2the $tate shall endeaour to secure for the citi%ens a uniform ciil codethroughout the territory of India.3

,ationale for the 8CC

$he reasons *ien for introduction of the 8CC are the followin*

$eparate personal laws will foster sub!national identities

Intra and inter religious differences in inheritance" marriage etc are against social

harmony

*s there is a common criminal law" there should be common ciil code as well

*t the same time" Constitution does recogni%e the fact that ACC can only be introduced on

oluntary demand but not imposed" in the long term social and national interest. It is felt that

with social and political deelopment" ACC could be gradually implemented as different

religions will olunteer to adopt it. 9therwise" it may be seen as an imposition and re'ected. Thatis the reason for its introduction as a P$P which is non!binding.

8en though personal laws are not codified in India" there hae been many attempts at reforming

these laws. For e4ample" $pecial 5arriage *ct" 1-; under which men and women hae same


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rights as it is religion!neutral. Two" progressie erdicts of the courts also made personal laws

more gender sensitie.

Ques. 9 : !roidin* for %% per cent reseration to women in le*islatie assemblies is

meanin*less untill personal laws e&istin* in +ndia are made more pro*ressie and

faourable to women.; (&amine"

*ns. Personal laws hae been un'ust to women.

The Eindu $uccession *ct makes proision for a Eindu Andiided Family to ensure thatproperty remains with the male line of descent. * son gets a share e&ual to that of his father> a

daughter gets only a share in her fathers share. $he cannot reside in the family home unless she

is single or diorced" and cannot claim her share of property as long as the men of the familycontinue to lie in it. * womans right to agricultural property is also similarly restricted to

2preent fragmentations of landholdings.3 The law is changed as detailed ahead.

$ome 5uslim personal laws hae been codified in the $hariat *ct 1+," the issolution of

5uslim 5arriages *ct" 1+1 and the 5uslim #omen (Protection of right on iorce) *ct" 1:=

under the 5uslim Personal 7aws" womens right to property is limited to half of what theirbrothers get. The 1+, *ct categorically denies women any right to agricultural land. Polygamy

among 5uslims remains an issue. 5uslim personal law makes the man the sole guardian of achild.

Personal laws applicable to Christians were the earliest to be codified. The Indian iorce *ct

was amended

to gie women and men e&uality in seeking diorce. Eoweer" the Roman Catholic Church doesnot accept diorce under the Indian iorce *ct.

Thus" the personal laws of different religions in India do in'ustice to women and need changes. It

is one of the reasons for adopting ACC.Eindu $uccession *ct B


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Ander the amended law" the daughter is gien a share in the ancestral property.

If a person can be the member of the coparcenary the ne4t stage is that he or she can become the

Garta of the family. * Garta is the head of the family and hence it would be possible fordaughters to occupy this role. Currently only male members can occupy this specific position.

This change can be &uite significant in terms of social e&uations. Eoweer all this relates to onlycoparcenary property. In case of other property there is no restriction on the ability of anyone to

will away the self ac&uired property in any manner that they desire.

8CC and )upreme Court

In $hah 6ano case (1:-) a 5uslim woman claimed for maintenance from her husband under

$ection


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liing and to improe public health" and" in particular" the $tate shall endeaour to bring about

prohibition of the consumption e4cept for medicinal purposes of into4icating drinks and of drugs

which are in'urious to health.

*rt ;:. 9rganisation of agriculture and animal husbandry.! The $tate shall endeaour to organise

agriculture and animal husbandry on modern and scientific lines and shall" in particular" takesteps for presering and improing the breeds" and prohibiting the slaughter" of cows and cales

and other much and draught cattle.

*rt. ;:* Protection and improement of enironment and safeguarding of forests and wild life.

The $tate shall endeaour to protect and improe the enironment and to safeguard the forests

and wild life of the country.

*rt. ;1. Protection of monuments and places and ob'ects of national importance. It shall be theobligation of the $tate to protect eery monument or place or ob'ect of artistic or historic

interestsdecared by or under law made by Parliament to be of national importance" from

spoliation" disfigurement" destruction" remoal" disposal or e4port" as the case may be.

*rt -@. $eparation of 'udiciary from e4ecutie. The $tate shall take steps to separate the 'udiciaryfrom the e4ecutie in the public serices of the $tate.

Ques. < : $he increasin* scope for 0udicial actiism has blurred the lines between

0udiciary and e&ecutie and may not *ood for the federalism;. (&amine the statement

critically"

*ns. The need for the separation are

It is necessary for independence of 'udiciary

It helps in speciali%ation

$uch separation helps in better goernance as there will be more checks and balances

based on the doctrine of separation of powers

Rule of law also demands that the separation take place as otherwise the 'udiciary may

not be impartial

Ciil rights arc better protected

In practical terms" diesting the 'udicial functions of the 84ecutie means that that a magistratewho tries a case must not be in direct administratie subordination to anyone connected with the

prosecution or the defense.

*ccording to the 7aw Commission (;th Report" 1-:)"... separation means officers will deote

their time entirely to 'udicial duties and this fact leads to ellicicricy in the administration of'ustice.3


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To essential feature of the scheme for the separation since Independence was the transfer of

purely 'udicial functions like trial of criminal cases from the collector and subordinate

magistrates to a new set of officers who were no longer to be under control of the collector.Preiously" under the CrPC and other releent codes" the functions of a magistrate fell into three

classes

2police3 functions" e.g. the handling of unlawful assemblies

administratie functions" e.g. issuance of licenses for firearms and similar functions> and

'udicial functions" e.g. the trial of criminal cases.

#hen separation was effected" the 'udicial functions were transferred to courts. Thus" e4ecutiemagistrates and 'udicial magistrates were separated. The former were gien functions like

sanction of prosecution etc while 'udicial functions were with the latter.

8arlier" administration and control oer all the 5agistrates Courts in the district had been estedin the istrict 5agistrate who was also the eputy Commissioner. #hen the CrPC was amendedby states and the separation was made" the 5agistrates Courts" came under the control of the

udicial istrict 5agistrate who also e4ercised general administration and superision oer

them.

*rt. -. Promotion of international peace and security. The $tate shall endeaour toJ

(a) promote international peace and security

(b) maintain 'ust and honourable relations between nations

(c) foster respect for international law and treaty obligations in the dealings of organised

peoples with one another> and encourage settlement of international disputes by

arbitration.

Ques. 1= : (&cept in the field of education6 Directie !rinciples hae been imple-mented

well.; Discuss"

*ns. $ince the commencement of the Constitution" there has been substantial legislation toimplement the P$Ps. *s detailed belowB

First amendment *ct is for implementing land reforms. It was followed by the ;th" ,th"


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Promotion of the cottage industries" has been one of the main aspects of the economic policy of

the goernment and there is in e4istence the Ghadi and the illage Industries Commission for the

purpose.The 0oernment

position as regards the uniform ciil code is that the matter being sensitie in the country with itssocial backwardness" unless the religious groups concerned come forward and oluntarily seek

the enforcement of the ACC" it is not desirable to implement the article. #omen are brought onpar with men in Eindu $uccession *ct that was amended in iolo*ical Diersity Act #==# is a law meant to achiee three main ob0ecties

The conseration of biodiersity>

The sustainable A$C of biological resources>

8&uity in sharing benefits from such use of resources.

The 8nironment Protection *ct. 1:=> the #ild 7ife *ct> The ?ational Forest Policy 1:: aresome e4amples for implementation of *rt. ;:*. In 11-" the Anion 0oernment established the

?ational 8nironment Tribunal. 0oernment is taking many steps for countering climate change.

The *rchaeological $urey of India is entrusted with the work of protection of the monuments

like the Ta' 5ahal. The surey took up the work of protecting the Puri temple from dilapidation.$eparation of 'udiciary from e4ecutie is being done by amending the CrPC.

The efforts of India to secure international peace are many like participation in the peacemaking

operations of the A? in west asia" 7iberia" etc are prime e4amples of contribution to in


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international peace and security. India pioneered ?on *ligned 5oement to defuse cold war

after the second world war.

Thus" e4cept in the field of education n" P$Ps were implemented well.

Ques. 11 : !articipation of workers in mana*ement has attained more si*nificance sinceliberalisation;. +n this conte&t brin* out the steps taken by the *oernment to ensure such

participation"

*ns. #orkers participation in management at arious leels like shop floor" plant and so on is

necessary for the following

to raise productiity

promote industrial peace and

create a sense of inolement amongst the workers

The Industrial Policy Resolution adopted by the 0oernment in 1-= declared that in a socialist

democracy" labour was a partner in the common task of deelopment" and should be made to

participate in it. It recommended oint 5anagement Councils to deal with all matters e4ceptmatters falling within the area of collectie bargaining such as wages" bonus" hours of work" etc.

The participation becomes een more important since liberali%ation as fast paced technological

changes need to be planned for and taken adantage of. It needs consultatie management where

workers must contribute to change management.

#orks Committees hae been in e4istence since Independence" Industrial isputes *ct" 1;,empowered 0oernment to constitute works committees. The functions that the *ct isualised

for the #orks Committees included industrial peace" work enironment etc.

In 1,-" the Constitution was amended by the introduction of *rticle ;+* for workersparticipation in management.

Ques. 1# : $hou*h the ?undamental ,i*hts and Directie !rinciples constitute the

conscience of the constitution6 yet they always appear to be an collission path. Critically

e&amine"

*ns. The FRs and the P$Ps constitute the conscience of the Constitution. The purpose of theFRs! is to confer on indiiduals the rights necessary for their deelopment free from coercion.

P$Ps are essential for the welfare society. *ccording to ustice Chandrachud" the Constitution

aims to bring about a synthesis between the two and together they constitute" not indiidually"the conscience of the Constitution.

$ince commencement of the Constitution in 1-@" the ineitable tension between the FRs and the


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P$Ps surfaced. P$Ps could not be implemented without the FRs being restricted. For

e4ample" land redistribution in an une&ual society demanded that land be taken from those

haing in e4cess and gien to those in need of it.

Parliament has the obligation to promote 'ustice by implementing *rt.+1. #hen they conflicted

with the FRs! *rt. ; and 1" the laws were challenged in the $upreme Court most of the timeupheld the parliamentary action.

$upreme Court in the $hankari Prasad case" 1-< and $a''an $ingh case in 1=- said that *rt. +did not come in the way of parliaments power to limit the FRs. from the 0olaknath case 1=,"

howeer the earlier position was reersed and in the Geshananda 6harati case" the constituent

power of the Parliament was partly restored. In the ;< amendment *ct in 1,=" P$Ps weregien precedence oer the FRs and it was struck down in the 5inera 5ills case erdict (1:@)

for the following two reasons B!

. It remoes 'udicial reiew which is a basic feature of the Constitution


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#th Amendment Act

The Constitution


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In addition to the irecties that are found in Part Four of the Indian constitution" there are

certain other directies in other irecties in other Parts of the Constitution addressed to the state

and non!'usticiable like the rest. They are the following !

*rt.++- says that in resering 'obs for the $cheduled Caste and Tribes in0oernment" due

attention should be paid to efficiency in administrationB

*rt +- en'oins the state to promote the use of Eindi so that it may he deeloped as a

medium of communication.

*rt.+-@* en'oins the state and the local authorities to impart primary education to the

linguistic minorities in their mother tongue.

irectie Principles and Fundamental RightsB The differences

>oth ?,s and D!)!s are essential for a welfare state- democratic socialism. >oth aim at

buildin* human capital.

FRs are essentially indiidual rights. irectie Principles are in the nature of instruments

of instructions to the 0oernment of the day to undertake positie actions.

The fundamental rights are enforceable in the courts" hence are 'usticiable. 6ut the

irectie Principles are not enforceable in the courts thus they are non J 'usticiable.

usticiable means that if Fundamental Rights are iolated" the aggrieed indiidual can

moe the courts for the protection of their Fundamental Rights. ?on!'usticiable meansthat citi%ens can not go to court to secure implementation of the. irectie Principles are

made non!'usticiable as their implementation re&uires resources> society may not be

ready for their implementation! ACC> they need time for introduction! local selfgoernment institutions etc.

Fundamental Rights are facilities gien by the state to the people whereas irectie

Principles are directions gien by the constitution to the state.

Fundamental Rights aims at establishing political democracy in India while irectie.

Principles attempts to proide socio!economic foundations to Indian democracy.

Fundamental Rights and irectie Principles are not opposed but are complementary to each

other. 6oth ultimately aim at the welfare and the well!being of the people. #hile irectiePrinciples are non!'usticiable" it does not imply that they need not be implemented. They are

fundamental to the goernance of the country. FRs hae legal sanction while P$Ps en'oy moral

and political sanction. The real strength of irectie Principles is deried from a igilant publicopinion.

+n a nutshell6 the differences between ?,s and D!)!s are


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FRs are rights while P$Ps are directions to the 0oernment

FRs are enforceable ( 'usticiable) while P$Ps are not

FRs are essentially indiidual J centered while P$Ps are group!centered

FRs are aimed at creating political democracy while P$Ps aim for an inclusie society

that is enironment!friendly.

Documents

5g. Polity - Directive Principles