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Judicial Evolution of Directive Principles of State Policy

Directive Principles of State Policy as the etymology suggests are the principles which act as a direction for the state while it formulates policy for the governance of the country. The non-justifiability of these principles has always been a point of contention. However, no matter how many questions are being raised on its utility, they enjoy a special position in our constitution and the same has been reiterated time and again by the Hon'ble Supreme Court.

This paper is an attempt to critically analyse the journey of Directive Principles from being moral homily to their harmonious construction with legal obligations of the state. For the same, the author has tried to explore the objective of the constitution framers and the transition in the approach of the Indian Supreme Court over the years.

Initially the state used to play a negative role. It primarily functioned as a police state which was concerned only with protecting the nation from external aggression, maintenance of law and order, dispensing justice to its citizens and collecting taxes. However, in the 20th century, the citizens became much more enlightened about their rights. Thus, a need was felt that the state shall be more than a police state. It shall help in alleviating poverty, regulating individual enterprise and most importantly bringing about social justice. This led to the establishment of the social welfare state.

Today is an era of welfare state, seeking to promote the prosperity of the people. Even the Constitution makers had also realized the role of state is much wider than that was in a laissez faire era, where the state was mainly focused upon defense of the country. This intend is clearly visible in the Preamble of our Constitution.

The Constitution of India, in its preamble, reflects the resolve to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship and equality of status and of opportunity and fraternity assuring the dignity of the individual.[i] The Directive Principles of State Policy strengthen this objective by prescribing the socio-economic goals which every government should strive to achieve. The Directive Principles are theorized as a yardstick in the hands of the people to check the performance of the government.

Genesis of the Directive Principles

In the draft Constitution prepared by the Constituent Assembly, Part III was inclusive of both Fundamental Rights (herein after FR) and Directive Principle of State Policy (herein after DPSP). DPSP which were a part of chapter 3 from Article 31 to 41, were for the guidance of the state, while FR were in Chapter 2 from Article 11 to 30 to guarantee basic rights to its people.

Sir BN Rao, the Constitutional Advisor had a detailed discussion with President Devalera of Ireland on the relationship of DPSP with FR under the Irish Constitution.[ii] In lieu of the discussion he suggested that in case of any inconsistency, DPSP should be given primacy over the FR and for that he recommended certain amendments in the draft.

The minutes of the Drafting Committee shows that the committee was divided on it and the one for making Directive Principles non-justiciable override who wanted to make it justiciable. Thus, to demarcate a separation in the nature and effect of the two, Part III of our constitution was entitled as Fundamental Rights and part IV was entitled as Directive Principles of State Policy.
However, Dr. BR Ambedkar, the chairman of the Drafting Committee, clarified the intention of the Drafting Committee. He said- �If it is said that the Directive principles have no legal force. I am prepared to admit that they have no sort of binding force at all. Nor am I prepared to concede that they are useless because they have no binding force in law�who should be in power is left to be determined by the people. But whoever captures power will not be free to do what he likes with it. In the exercise of it, he will have to respect these instruments of instructions called Directive Principles. He may not have to answer for their breach in a Court of Law. But he will certainly have to answer for them before the electorate at election time.� [iii]

Inter-relationship between Directive Principles of State Policy and Fundamental Rights

Initially, the Directive Principles didn't have much legal value and were more akin to moral. The Constitutional Courts in India preferred a strict and literal interpretation of the Article.37 which specifically mentions that Directive Principles are not enforceable by any court. The Supreme Court in many of its earlier judgments reflected this notion. In the case of State of Madras v. Champakam Dorairajan, [iv] where a government order conflicted with Article 29(2), a FR, was declared invalid, although the government did argue that it was made in pursuance of Article 46, a Directive Principle.

The SC held that:
�The directive principles of the state policy which were expressly made unenforceable by a court cannot over-ride the provisions of Part III which are enforceable by appropriate writs, orders or directions under Article 32.

The Directive Principles have to conform to and run subsidiary to the chapter on Fundamental Rights.� The court even cautioned that if DPSP would be allowed to override, then the FR would be reduced to �mere rope of sand' which was certainly not the intent of the constitution makers.

Though, DPSP are considered as fundamental in the governance of the country and state is duty bound to take them as guiding light in framing laws, but a government cannot be compelled to fulfil a Directive Principle by an order or a Writ of mandamus.[v]

The Supreme Court has again reiterated that �this court has no power to give directions for the enforcement of the Directive Principles of State Policy.�[vi]Therefore, a legislation cannot be challenged on the ground of being inconsistent with the Directive Principles.

Harmonisation of DPSP and FR

With the efflux of time, there was a change in the perception of judiciary with regards to Directive principles. The courts have started giving a good deal of value to them and not just considering them as mere theoretical ideas. For example, in Re Kerala Education Bill case, [vii] Das CJ adjudicated for a harmonious interpretation of DPSP and FR.

The affirmative and positive outlook of Supreme Court could also be admired in the landmark judgment of Golakhnath v. State of Punjab [viii], where it was held that:
the FR and DPSP forms the integrated scheme which was elastic enough to respond to the changing needs of the society.

There was a time, when YV Chandrachud, CJ in Minerva Mill case [ix] went up to the extent that he considers Directive Principles are the ends to which fundamental rights are striving at. Since then it has become a judicial strategy to make a balance between the two and not give preference to one at the cost of the other.

Primacy of DPSP over FR

The history of case law of Supreme court judgment reflects that how the balance of apex court is tilting in the favour of Directive Principles while treating FR as a means of achieving it. By reading FR with DPSP, several DPSP has been inculcated in the domain of FR. The biggest beneficiary of this approach is Article 21.

One of the landmark instances of this is Article 21 A. When after the case of Unnikrishnan v. State of Andhra Pradesh,[x] the Parliament by 86th Constitutional Amendment added Article 21 A as Right to Education which was a DPSP under Article 41 and Article 45 of the Indian Constitution. The ambit of Article 21 considering Directive Principles is so broadened by the Hon'ble SC that now it includes Right to health and social justice[xi], Right to shelter[xii] and Right to privacy[xiii].

Even the Supreme Court in the case of Har Shankar v. Deputy E and T. Commission, went on to the extent that in the prohibition of intoxicating drinks and drugs u.A.47, it included all narcotics. Even in the case of State of Gujarat v. Mirzapur Moti Kassab Jamat, [xiv] the total ban on cow slaughter by State of Gujarat was upheld by the apex court, thus, giving primacy to A.48 r/w A.37 over A.19(1)(g).

However, the Hon'ble Supreme Court diluted its opinion of Mirzapur Moti Kassab Case in the case of Akhil Bharat Goseva Sangh v. State of Andhra Pradesh, [xv] and held that those cattle which are of no use for agriculture or milk can be used as food.

The landmark step was taken in this reference through the 25th Constitutional Amendment. In 1972, A. 31 C was enacted giving primacy to A.39(b) and (c) over A.14, 19 and 31. The same has been upheld by the SC in the case of Kesavanand Bharti v. State of Kerala.[xvi] Justice Mathew abutted this claim and went up to the extent of saying that it is sometimes imperative to give supremacy to Directive Principles over Fundamental Rights in order to build a social order.

The next step in the direction of giving primacy to Directive Principle was taken in 1976 when all DPSPs were sought to give precedence over Article 14,19 and 31 by the 42nd Amendment.[xvii] But the Supreme Court did not uphold this amendment. [xviii]

Overall after analyses of the case laws it can be concluded that the main theme of the court's pronouncement is to ensure a balance between the Directive Principles and the Fundamental Rights and not to give primacy to one over the other. The goals set out in DPSP are to be achieved without abrogation of Fundamental Rights. The principle was reiterated in the case of IR Coelho v. State of Tamil Nadu, [xix] where it was held that the Constituent Assembly left it up to the government to adopt a middle path between individual liberty and public good. The �bed rock of balance' between DPSP and Fundamental Rights can be tilted in favour of the public good but not completely overriding individual liberty. This balance is basic structure of the constitution.[xx]

  1. MP Jain, Indian Constitutional Law (8th edn., Lexis Nexis)1466, para.9
  2. Shiv Rao, op.cit.vol. III p. 233 et seq
  3. CAD; Vol. vii, p.41
  4. AIR 1951 SC 226
  5. Ranjan Dwivedi v. UOI, AIR 1982 SC 624
  6. Lily Thomas v. UOI, AIR 2000 SC 1650
  7. AIR 1958 SC 956
  8. AIR 1967 SC 1643
  9. Minerva Mill v. UOI, AIR 1980 Sc 1789
  10. AIR 1993 SC 2178
  11. Consumer Education and Research Centre v. UOI, AIR 1998 SC 922
  12. Chameli Singh v. State of UP, AIR 1998 SC 1051
  13. KS Puttaswamy v. UOI, (2017) 10 SCC 1.
  14. (2005) 8 SCC 534
  15. (2006) 4 SCC 162
  16. IR Coelho v. State of Tamil Nadu, AIR 2007 SC 861
  17. MP Jain, Indian Constitutional Law, Lexis Nexis, 8th edn.,1466, para.9
  18. Minerva Mill Ltd. v. UOI, AIR 1980 SC 1789
  19. AIR 2007 SC 861
  20. Minerva Mill Ltd. v. UOI, AIR 1980 SC 1789

    Award Winning Article Is Written By: Ms.Akanksha Awasthi

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