Welfare State and Distributive Justice under the Constitution
The Directive Principles of the State Policy contained in Part IV (Arts. 36 to 51) of the Constitution of India set out the aims and objectives to be taken up by the States in the governance of the country. This novel feature of the Constitution is borrowed from the Constitution of Ireland which had copied it from the Spanish Constitution.
The idea of Welfare State envisaged by our Constitution can only be achieved if the States endeavour to implement these policies with a high sense of moral duty.
There was a time, known as the laissez fair era, when the State was mainly concerned with the maintenance of law and order and defence of the country against external aggression. Such a restrictive concept of the State no longer remains valid.
The makers of the Constitution had realised that in a poor country like India, political democracy would be useless without economic democracy. Accordingly they incorporated a few provisions in the Constitution with a view to achieve amelioration of the socio-economic condition of these masses.
Today we are living in an era of Welfare State which seeks to promote the prosperity and well-being of the people. The Directive Principles strengthen and promote this concept by seeking to lay down some socio-economic goals which the various Governments in India have to strive to achieve.
The Directive Principles are designed to usher in a social and economic democracy in the country. These Principles obligate the State to take positive action in certain directions in order to promote the welfare of the people and achieve economic democracy. These Principles give directions to the legislature and the executive in India regarding the manner in which they should exercise their power.
In a number of pronouncements, the Supreme Court of India has insisted that these Directive Principles seek to introduce the concept of a Welfare State in the country.
The main object of incorporating the Directive Principles appear to have been to set the standards of achievements before the Legislature and Executive, the local and other authorities, by which their success or failure can be judged. It was also hopped that those failing to implement the directives might receive a rude awakening at the polls. It should, however, be noted that the Directive Principles do not impose any particular brand or pattern of economic or social order. They lay down the goals which may be achieved through various means and which have to be devised from time to time.
The Preamble, the Fundamental Rights and the Directive Principles can be characterized as the trinity of the Constitution.
The Directive Principles seek to give certain directions to the legislatures and Governments in India as to how, and in what manner and for what purpose, they are to exercise their power. But, these Principles are specifically made non-enforceable by any Court of law. Art.37 of the Constitution states: “The provisions contained in this part shall not be enforceable by any Court, but the Principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles”.
The reason behind the non-enforceability and non-justifiability of these Principles is that they have positive obligations on the State. While taking positive action, Government functions under several restraints, the most crucial of these being that of financial resources. The Constitution makers therefore, taking a pragmatic view refrained from giving teeth to these Principles. They believed more in an awakened public opinion, rather than in Court proceedings, as the ultimate sanction for the fulfilment of these Principles. Nevertheless the Constitution declares that the directive principles though not enforceable by court, are fundamental in governance of the country, and the State has been placed under an obligation to apply them in making laws and use its administrative machinery for the achievement of these Directive Principles.
The Courts do not however enforce a Directive Principle, as such as it does not create any justifiable right in favour of an individual . A Court will not issue an order or a writ of mandamus to the Government to fulfill a Directive Principle.
But the Courts are nevertheless, bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goal set out in the Directive Principles of State Policy . Again, the Supreme Court has observed in Meenakshi Mills that ordinarily any restriction so imposed which has the effect of promoting or effectuating a directive principle can be presumed to be a reasonable restriction in public interest.
The Directive Principles guide the exercise of legislative power but do not control the same. However, the values underlying the Directive Principles, viz., welfare of the poor and weaker sections of the society, have crept in interpretation of economic legislation by the judiciary and this is a substantial gain.
The Directive Principles may be classified into the following heads:
- Social and Economic Charter.
- Social Security Charter.
- Community Welfare Charter.
Art. 38(1) provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice² social, economic and political shall inform all the institutions of national life. This directive only reaffirms what has already been said in the Preamble according to which the function of the Republic is to secure to all its citizens social, economic and political justice.
The Constitution (44th Amendment) Act, 1978 inserted a new Directive Principle in Art. 38 i.e., clause (2) to Art. 38 which provides that the State shall, in particular, strive to minimize inequalities in income and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. The new clause aims at equality in all spheres of life. It would enable the State to have a national policy on wages and eliminate inequalities in various spheres of life.
Art. 39 specifically requires the State to direct its policy towards securing economic justice by implementaing the following principles:
- Equal right of men and women to adequate means of livelihood.
- Distribution of ownership and control of the material resources of the community to the common good.
- To ensure that the economic system should not result in concentration of wealth and means of production to the common detriment.
- Equal pay for equal work for both men and women.
- To protect health and strength of workers and tender age of children and to ensure that they are not forced by economic necessity to enter avocations unsuited to their age or strength.
- That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood or youth are protected against exploitation and against moral and material abandonment.
Uniform Civil Code – Article 44 requires the State to secure for the citizen a Uniform Civil Code throughout the territory of India. In the historic judgment of Sarla Mudgal v. Union of India24, the Supreme Court directed the Prime Minister Narasimha Rao to take a fresh look at Art. 44 of the Constitution which enjoins the State to secure a Uniform Civil Code. According to the Court it is an imperative for the protection of the oppressed as well as for the promotion of national unity and integrity. The Court directed to the Union Government through the Secretary to Ministry of Law and Justice to file an affidavit by August, 1995 indicating the steps taken and efforts made by the Government towards securing a Uniform Civil Code for the citizen of India.
- Article 48 directs the State to take steps to organize agriculture and animal husbandry on modern and scientific lines. In particular, it should take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle.
- Article 48-A requires the State to take steps to protect and improve the environment and to safeguard the forests and wildlife of the country. In M.C. Mehta (II) v. Union of India30, the Supreme Court, relying on Art.48A gave directions to the Central and the State Governments and various local bodies and Boards under the various statutes to take appropriate steps for the prevention and control of pollution of water.
- Article 49 requires the State to protect every monument or place or object of artistic or historic interest (declared by or under law made by the Parliament), to be of national importance from spoilation, disfigurement, destruction, removal, disposal or export. Pursuant to this, the Parliament has enacted the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951.
- Article 50 requires the State to take step to separate the Judiciary from the Executive in the public services of the State. Art. 50 is based on the bedrock of the principle of independence of the judiciary31. There shall be a separate judicial service free from executive control. The separation of the judiciary from the executive is regarded as a very essential element for proper administration of justice in the country by promoting the rule of law.
- Article 51 provides that the State should strive to (a) promote international peace and security, (b) maintain just and honourable relations between nation; (a) foster respect for international law and treaty obligations in the dealings of organized people with one another, and (d) encourage settlement of international disputes by arbitration.