DIRECTIVE PRINCIPLES OF STATE POLICY

DIRECTIVE PRINCIPLES OF STATE POLICY

CHARACTERISTICS AND IMPORTANCE OF DIRECTIVE PRINCIPLES OF STATE POLICY

Directive Principles of State Policy are enshrined in part IV of the Constitution (Article 36 – 51), representing a comprehensive program of ushering in social and economic democracy in the country. These principles have been described as ‘novel features’ of the constitution by Dr. B.R. Ambedkar, conscience of the Constitution. Granville Austin has described the Directive Principles and the Fundamental Rights as the “Conscience of the Constitution”.

Characteristics/Features of DPSP

• Ideals to be followed by the State: These are constitutional instructions to the State in legislative, executive and administrative matters that state should keep in mind.
• Limitation on arbitrary exercise of power: It is a check against political majority making attempts to hijack the spirit of the Constitution.
• Non-Enforceable: DPSP’s are not automatically enforceable in a court of law but are fundamental to the governance of the country [Article 37]. They become enforceable only through a legislation giving effect to some directive principles. For example – MGNREGA for Right to Work.
• Moral Obligation: DPSPs impose a moral obligation on the state authorities.
• Reflection of Preamble: The expression “Justice- social, economic, political” in Preamble is sought to be achieved through DPSPs.
• Positive obligations: DPSPs contain positive obligations of the state towards its citizens.
• Way to exercise power: DPSPs are another name for Instruments of instructions to the legislature and the executive as to how they should exercise their power [Dr. B.R. Ambedkar].

Importance of DPSP

1. Social Benefits
   • Equal society: Equality before law can be predicated meaningfully only in an equal society, i.e., in a society contemplated by Article 38 of the Constitution.
   • Socialist society: They were inserted with the aim of establishing a ‘socialist pattern in the society’ and not subscribe to either of the extremes – Individualism or Socialism.
   • Educative value: This educative value was for reminding those in power what the aim of the Indian polity is for people of India.
   • All-round development: It is a concerted effort to foster all-round development so as to establish socio-economic justice and democratic socialism in the country.

1. Governance
   • Fundamental in the governance of the country: The objective of the DPSPs is to better the social and economic conditions of society so people can live a good life.
   • Supplementary to Fundamental Rights: Fundamental rights are not to be read in isolation. They have to be read along with directive principles of State policy and fundamental duties [Javed v. State of Haryana].
   • Check on government: A citizen can use DPSPs as a measure of the performance of the government and can identify the scope where it lacks.
   • Important to maintain sanctity of Constitution: Not following a directive principle would directly or indirectly affect the Fundamental Right which is considered as one of the essential parts of the Constitution.
   • Objectives of State: DPSPs also lay down the objectives of the Indian State. They differentiate between a ‘Welfare State’ and ‘Police State’, their presence making India the former.
   • Economic democracy: Political democracy, without economic democracy, has no meaning.
2. Legal
   • Yardstick to judge the law: A person should know these provisions because ultimately these principles act as a yardstick to judge the law that governs them.
   • Restricts legislative power: It also constrains the power of the state to make a draconian law.
   • Interpretation of statutes: They help the Courts in the interpretation of various statutes to ensure they are not in conflict with DPSPs.
   • Policy formulation: Their primary function is to serve as a guideline for the government policy formation.
3. International obligations: DPSPs are forerunners of the U.N. Convention on Right to Development [Air India Statutory Corporation v. United Labour Union].

Why DPSPs are not justiciable?

• Financial issue: At the time of independence, India did not have sufficient financial resources to take on so many responsibilities.
• Post-independence issues: India, as a newly independent state, was struggling with other issues (e.g., partition and the aftermath refugee crisis) and making DPSPs justiciable would have put India in great difficulty.
• India’s backwardness and diversity: These were also a hindrance in implementing these principles at that time.

Relationship between DPSP and FRs

• State of Madras vs Champakan Dorairajan (1951): The Supreme Court held that if a law contravenes a Fundamental Right, it would be void, but the same is not true for the DPSPs. This implies that Fundamental Rights are on a higher pedestal than DPSPs.
• I.C. Golaknath vs State of Punjab (1967): Fundamental Rights cannot be curtailed by the law made by Parliament.
• 25th Constitutional Amendment Act, 1971: It inserted Article 31C. It provided that if a law is made to give effect to DPSPs in Article 39(b) and 39(c) and in the process, the law violates Article 14, 19, or 31, then the law should not be declared unconstitutional and void merely on this ground.
• Kesavananda Bharati vs State of Kerala: The Supreme Court held that Parliament can amend any part subject to the basic structure of the Constitution. Clause 2 of Article 31-C was declared unconstitutional and void as it was against the basic structure, but Clause 1 was declared valid.
• 42nd Constitution Amendment, 1976: It widened the scope of Article 31C to cover all the directive principles laid down in the Constitution.
• Minerva Mills vs Union of India (1980): The Constitution is founded on the bedrock of balance between Fundamental Rights and DPSPs. To give absolute primacy to one over the other would disturb the harmony of the Constitution. This harmony and balance is an essential feature of the basic structure of the Constitution.
• Unnikrishnan vs State of Andhra Pradesh (1993): Fundamental Rights and Directive Principles are not exclusive to each other, and Fundamental Rights are the means through which the goals enumerated in Part IV are achieved.
• Present Order of Precedence:
  1. Fundamental Rights (FR) except Articles 14 & 19
  2. DPSP’s Articles 39(b) and 39(c)
  3. FR Articles 14 & 19
  4. DPSPs except 39(b) & 39(c)

Criticism

• Can be ignored by Government: As DPSPs are neither justiciable nor enforceable, any responsible government or any legislature elected on the basis of universal adult suffrage can ignore these principles.
• Moral principles: DPSPs try to impose morals on the citizens, something that is arguably outside the scope of law. For example, DPSPs contain a provision that calls for the ban on alcohol, and this provision certainly tries to impose certain morals on the people.
• Lack of consistency: Directives are neither properly classified nor logically arranged. Relatively unimportant issues mix with the most vital economic and social questions. It combines reason and science with provisions based purely on sentiment and prejudice [to N. Srinivasan].
• Non-enforceable: Their non-enforceable nature leaves their implementation to the discretion of the government of the day.
• Sentimental value: They contain merely the vision of constitution makers without any instrumentalities to achieve it.

Constitutional Conflict

• Dismissal of State Government: The Centre can give directions to the states with regard to the implementation of these principles, and in case of non-compliance, can dismiss the state government.
• Rejection of Bill: When the Prime Minister gets a bill (which violates the Directive Principles) passed by the Parliament, the President may reject the bill on the ground that these principles are fundamental to the governance of the country. The same constitutional conflict may occur between the governor and the chief minister at the state level.

The directive principles play an ideal before the lawmakers, guiding them as they frame policies and laws. They are essentially a code of conduct for the legislature and administrators of the country. They show the path to the leaders of the country, leading towards the ideals of the constitution embodied in the Preamble: “Justice, Social, Economic, Political; liberty, equality, and fraternity”.

UNIFORM CIVIL CODE

A Uniform Civil Code provides for one law for the entire country, applicable to all religious communities in personal matters such as marriage, divorce, inheritance, and adoption. It is based on the presumption that no connection exists between religion and law in modern civilization.

Constitutional Provisions: Article 44: “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”

Arguments in Favour of UCC

1. Social
   • Establishing a secular society: UCC will unlink law from religion, a highly desirable objective in achieving a secular and socialist society.
     • Example: Currently, differential justice is provided to women based on their personal laws, which violates the right to equality.
   • Equality: There are significant disparities among various religious regulations. Equal laws in areas such as marriage, inheritance, family, and land are necessary. UCC acts as a unifier, bringing all under one set of regulations and aiding in greater equity, legislative efficiency, and judicial consistency.
     • Example: While Muslims are permitted to marry multiple times in India, a Hindu or a Christian would face prosecution for the same.
   • Nature of Indian Society: A secular republic like India needs a common law for all citizens rather than differentiated rules based on religious practices.
   • Gender Parity: The rights of women are generally restricted under religious law, be it Hindu or Muslim. Triple talaq, priority given to men in terms of succession are some examples.
   • Young people’s aspirations: 55% of India’s population is comprised of people below 25 years of age. Their social attitudes and aspirations are based on universal principles of humanity, equality, and modernity.
   • To counter Communalism: Different personal laws promote communalism.
2. Political
   • Uphold rights: Many practices governed by religious tradition are contrary to the fundamental rights guaranteed in the Indian constitution. A UCC upholds the rights of an individual.
   • Constitutional mandate: The constitution has a provision for UCC in Article 44 as a DPSP. It will be constitutional obligations on the legislature to make legislations for the enforcement of UCC.
   • National Integration: UCC would make the dream of “One Nation, One Law” come true. India believes in one nation and hence no community shall claim separate religious laws.
   • Reduce Vote Bank Politics: The concept of a uniform civil code will also aid in reducing vote bank politics, which is practiced by most political parties during every election. If all religions are subject to the same laws, there will be no room for politicizing issues of discrimination, concessions, or special privileges.
3. Legal
   • Simplification of Indian legal system: UCC will lead to a reduction in litigation emanating from multiple personal laws.
   • Simplification of laws: There are many personal laws like the Hindu Code Bill, Shariat Law, etc., which create confusion, complexity, and inconsistencies in the adjudication of personal matters, at times leading to delayed justice or no justice.
   • Judicial orders: Courts have also opined that the government should move towards a Uniform Civil Code. For example, the Shah Bano case.
4. Economical
   • Secular economic policy: When religion becomes a private affair, economic policies affect every strata of society equally.
   • Equality of Opportunity: When public spaces are free from religious biases, there will be more equality in economic opportunities.

Arguments Against UCC

1. Social
   • Communal violence: The government should be sensitive and unbiased at each stage while dealing with the majority and minority communities. Otherwise, it might lead to communal violence.
   • Interference in personal matters: Religious beliefs and customs are private affairs, and interference in these matters will affect traditional practices and customs.
   • Threat to minority culture: UCC is considered by religious minorities as an encroachment on their rights to religious freedom.
2. Administrative
   • Practical difficulties: India is a country with diversity in religion, ethnicity, castes, etc. Hence, it is practically not feasible to come up with uniform rules for personal issues like marriage due to the cultural diversity.
   • Sensitive and difficult task: UCC in its true spirit must be created by borrowing from various personal laws, making gradual changes in each, and issuing judicial pronouncements. These are daunting tasks from a human resource perspective.
   • Time is not suitable yet: There are already controversies over beef ban, saffronization of school and college curriculum, love jihad, etc. At this time, the introduction of UCC would only make things worse.
3.  Political
   • Violation of religious freedom: The constitution provides for the right to freedom of religion of one’s choice. UCC would violate that right.

Challenges Involved in Implementation

1. Constitutional
   • Diverse personal laws: The customary practices among communities vary a lot. The vast diversity of the personal laws, along with the devotion to which they are adhered to, makes uniformity of any sort very difficult to achieve.
   • Fundamental rights violation: There is an apprehension that the UCC may be in conflict with the fundamental rights of freedom of conscience of free profession, practice, and propagation of religions (Article 26) and the freedom to manage religious affairs (Article 25).
2. Socio-Religious
   • Patriarchy: The patriarchal mindset of Indian society poses a big challenge in the implementation of UCC.
   • Opposition from the religious groups: This is one of the most trivial and obvious hurdles to bringing up the UCC. The fundamentalism, which is deep-rooted in many of the religions in India, doesn’t seem to vanish even in the 21st century.
   • Communalization: Different religious communities have their laws, which lead to the communalization of the UCC debate.
3. Political
   • Lack of political interest: Lack of political will due to the sensitivity and complexities involved in the issue. Political parties do not want to risk their support base.
   • Lack of opposition support: All political ideologies must merge to achieve this milestone.

Important Cases

1. Shah Bano Begum v/s Mohd. Ahmed Khan case, 1985: Shah Bano Begum, a 73-year-old woman, was divorced by her husband through Triple Talaq, denying maintenance.
   • The SC for the first time directed the Parliament to frame a UCC in the year 1985.
2. Sarla Mudgal v/s Union of India case, 1995: This case was based on the issue of bigamy or polygamy after a man converted to Islam.
   • The SC, once again, directed the need for a UCC in this case.
3. Daniel Latifi v/s Union of India case, 2001: The SC ordered that Muslim women be given maintenance after divorce by men even after the iddat period is over. This was in contrast to the Muslim Women (Protection of Rights on Divorce) Act.
4. Shayara Bano case, 2017: The SC in this case had declared the practice of Triple Talaq (talaq-e-bidat) as unconstitutional.

Way Forward

1. Current Affairs Example
   • Goa has been described as the ‘shining example’ of the success of the Uniform Civil Code by the SC.
   • Goa is the only Indian state to have a UCC in the form of common family law.
2. Recommendations
   • “Piecemeal” approach: The social transformation from diverse civil code to uniformity shall be gradual and cannot happen in a day.
   • Major sensitization efforts: Efforts are needed to reform current personal law, which should first be initiated by the communities themselves.
   • Institutional overhaul: Current institutions need to be modernized, democratized, and strengthened for this change. Sincere efforts toward women empowerment have to be taken for all women of all religions.
   • Plural Harmony: Plural democracy is an identity of modern India. Therefore, efforts should be focused on harmony in plurality rather than blanket uniformity for flourishing Indian democracy.
   • Justice Desai Committee 2022: The Uttarakhand Governor has given his permission to establish an expert committee to check all the relevant laws that control personal matters for people living in Uttarakhand and to prepare a report on amendments in the present laws.
   • Law Commission’s recommendations: The commission stresses initiatives to reconcile the country’s diversity with universal arguments on human rights. It recommended the codification of all personal laws:

• So that the prejudices and stereotypes in all religions can be brought to light.
• They can eventually be tested against the anvil of the fundamental rights in the constitution.
• It could help arrive at certain universal principles.
• These may facilitate prioritizing equality instead of the imposition of UCC.

ESSENTIAL RELIGIOUS PRACTICE

The doctrine of “essentiality” was invented by the Supreme Court in the Shirur Mutt case in 1954. The court held that the term “religion” will cover all rituals and practices “integral” to a religion and took upon itself the responsibility of determining the essential and non-essential practices of a religion.

According to the recent Karnataka High Court verdict, wearing a hijab (headscarf) by Muslim women does not form a part of essential religious practices in the Islamic faith and is not protected under the right to freedom of religion under Article 25 of the Constitution.

Cases associated

• Amna Bint Basheer v CBSE (2016): Kerala High Court held that the practice of wearing a hijab constitutes an essential religious practice but did not quash the dress code prescribed by CBSE. It provided additional safeguards, such as examining students wearing full sleeves when needed.
• Fathima Tasneem v State of Kerala (2018): Kerala HC held that collective rights of an institution would be given primacy over the individual rights of the petitioner.

Need for essential religious practice doctrine

• Constitutional morality: It ensured that constitutional morality was given primacy over religious morality.
• Primacy of rule of law: It ensured that there will be primacy of rule of law rather than rule of religion, which helps in eliminating the possibility of conflict between different sections of society.
• Solution to unresolvable disputes: Indian polity for its plural nature will always be troubled by conflict between Article 14 and Article 25. The SC can use the doctrine to resolve present conflicts and the ones that may arise in the future.
• Balance with fundamental rights: In the Sabarimala case, the SC attempted to strike a balance between the two fundamental rights of the right to equality and the right to freedom of religion.

• Ensures social justice: Most religious practices and rituals, in a way, take away individual rights, which the doctrine is able to counter by upholding social justice.

Challenges of essential religious practice doctrine

• Incompetent authority to check: The doctrine has led the court into an area that is beyond its competence and given judges the power to decide purely religious questions.
• Inconsistency in determining essentiality: In some cases, they have relied on religious texts; in others, on the empirical behavior of followers; and in yet others, based on whether the practice existed at the time the religion originated.
• Interlinked customs: Providing constitutional protection only to those elements of religion which the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices.
• Counters freedom of religion: The essentiality test impinges on freedom of religion, which was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.
• Religious conflicts: The doctrine will lead to a situation where not everyone is equally content, and a uniform verdict can give rise to religious conflicts.
• Secularisation of Religions: Testing the essentiality of practices also amounts to the secularisation of religious practices and faiths, which may be seen as beyond the judicial or legislative scope.

Way Forward

• Case to case basis: On essential religious practice, the SC should go case by case rather than aiming for a grand unified theory so that each of these issues can be considered on their own ground with different redressal mechanisms.
• Bringing clarity on Article 13 & 25: The Sabarimala issue, combined with other cases such as FGM and Parsi women entry into Agyari, hoped to provide much-needed clarity on the intersection of essential legal practices and Article 13.