CONSTITUTIONAL LAW

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The Unenforceable Directives in the Indian Constitution
by Joseph Minattur, Barrister-at-law

Cite as : (1975) 1 SCC (Jour) 17

For a quarter of a century, the Directive Principles in the Indian Constitution have been regarded as non-justiciable. How they came to be so regarded is not easy to understand, as nothing which leads to such a conclusion can be found in the constitutional document. But the fact, however, remains that they have been so held. In this brief note an attempt is made to evaluate and re-appraise the notion of non-justiciability attributed to these principles.

On November 1, 1947, the Drafting Committee of the Constitution inserted into their draft two clauses taken from Sir B. N. Rau's draft of the Constitution. One of them which was inserted as Clause 30-B read:

The principles of policy set forth in this part are intended for the guidance of the State. While these principles are not cognizable by any Court, they are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.1

In Rau's draft, the clause which was numbered 10 had a marginal heading which read:

Application of the principles set forth in Chapter II (Cf. Irish Constitution, Article 45)

From this reference to the Irish Constitution, it is clear from where the clause was derived.

Article 45 of the Irish Constitution provides:

The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas Irish Parliament. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively and shall not be cognizable by any Court under any of the provisions of the Constitution.

The words "not cognizable by any Court" in Rau's draft are bodily borrowed from the Irish Constitution.

About three months later on January 20, 1948, the Drafting Committee revised a few clauses of the draft. Clause 33-B was revised as follows:

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 in making laws.

It requires more than average dumbness to assume that the change from 'cognizable' to 'enforceable' was made in a fit of absentmindedness and that the eminent legal luminaries who formed the majority of the members of the committee were innocent of the different implications of the two expressions.

It may be mentioned that at least one member of the Constituent Assembly used the expression non-justiciable in relation to Directive Principles.2 When Professor K. T. Shah referred to them as "mere expression of vague desire on the part of the framers",3 he also perhaps had the idea that they were intended to be non-justiciable. Our courts have always adhered to the view that when there is no ambiguity in the language used in a legal provision, there is no reason to resort to any outside guidance. The ordinary plain meaning of the words could be followed in interpreting a legal provision. There is no mystery about the word 'enforceable'. If one is inclined to look at the legislative history in relation to Article 37 of the Constitution, one finds that in the early drafts of Fundamental Rights and Directive Principles the distinction was drawn between justiciable and non-justiciable rights.4 In the later drafts of the clause which subsequently was adopted as Article 37, the word 'cognizable' was used. But in January 1948 this was changed to "enforceable".

Professor K.T. Shah introduced an amendment to turn Directive Principles into enforceable rights.5 His amendment read:

29. The provisions contained in this part shall be treated as the obligations of the State towards the citizens, shall be enforceable in such manner and by such authority as may be deemed appropriate in or under the respective law relating to each such obligation. It shall be the duty of the State to apply these principles in making the necessary and appropriate laws.

The amendment was not accepted. The speech of Professor Shibhan Lal Saxena, however, appears to clarify a few of the points raised in some of the amendments. He said:

Sir, this Article has been the subject of many amendments and the purpose of most of the amendments is that this Chapter should have some sort of binding force... ... ... What I really want is that these directive principles in this Chapter should not merely remain a pious wish. My honourable friend, Professor K.T. Shah, also wanted that these fundamental principles should guide the States in their legislation. I wish to assure him that the very fact that this Chapter forms part of the Constitution gives such a guarantee and it will surely be open to every Legislature to point out when an Act is brought before the Assembly that it is in conflict with the principles laid down in this Chapter. So the mere fact that they are being included in the Constitution shows that every Legislature will be found to respect these directive principles in the Constitution, and, therefore, any act which offends the Directive Principles shall be ultra vires. Although every citizen will not be able to go to a court of law for enforcement of these principles, yet the President of every Assembly will be within his rights to rule out any Bill and say that this Bill cannot be moved because it is against the fundamental directive principles of the Constitution itself.6

Professor Saxena supported the adoption of the Article and hoped that Professor Shah's amendment would not be pressed.

Because of some misunderstanding about the procedure adopted in the House, some members were not able to express their views on the clause before in it was adopted.7 Professor Saxena's speech centred on a vital point ; he stressed that a law passed in violation of directive principles should be regarded as ultra vires, though he conceded that under the present provision, a citizen would not be able to enforce a directive principle through a court of law. It is significant that his reference was to the citizen's inability to enforce the principle through legal action ; he did not say that a citizen was precluded from taking any legal proceedings at all when there was a contravention of a directive principle.

It is also important to note that no voice was raised against his pointed reference to a piece of legislation which would be ultra vires as violative of a directive principle. The members of the Drafting Committee who were present did not point out that his explanation regarding the importance to be attached to the Directive Principles was wrong. If silence is interpreted to mean agreement, the Constituent Assembly may be regarded as having agreed to his proposition that a law passed in violation of a directive principle is ultra vires the Constitution.

All that can be gathered from the legislative history is that the Drafting Committee first thought that the Directive Principles should not be cognizable in a court of law. Later on they appeared to have changed their mind and were content with laying down the proposition that they were to be unenforceable by a court of law. The debates in the Constituent Assembly do not shed any further light except that one member thought that the Directive Principles were non-justiciable rights. His remark that "They shall not be enforceable in a court of law",8 immediately following his reference to the non-justiciable rights would probably indicate that he attributed a narrow and restricted connotation to the term "justiciable". In these circumstances it may be wise in this particular context to follow the orthodox ways of our judiciary and look at the ordinary plain meaning of the words used in the constitutional provision.9

II

The plain, ordinary meaning of the words "shall not be enforceable by any court" does not preclude recourse to a court for a declaratory judgment. All that a court of law is restrained from doing is the enforcement of the Directive Principles. In a declaratory judgment there is no enforcement contemplated. It has been said that a judgment has in general nothing whatever to do with the means of enforcing the liability which it declares.10

Its declaratory, determinative, and adjudicatory function is its distinctive characteristic. While it must be given final effect by all officials of the State and cannot be reviewed or revised by administrative or executive authorities, it is the fact that it constitutes an official, final, binding and unchangeable declaration of the rights of the parties, constituting res judicata, which gives it its character in the judicial process.11

So much for judgements in general. Now executory judgements may be distinguished from declaratory judgements. Executory judgements declare the respective rights of the parties and also contain an order to the defendant to act in a certain way. If this order is disregarded, it could be enforced through levying execution against the defendant's property or by imprisoning him for contempt of court. Declaratory judgements do not contain any order which can be enforced against the defendant. They merely proclaim the existence of a legal relationship or the absence of it. For instance, the court may declare that a particular person is an Indian citizen and not a Pakistani or Bangladesh national.12

It may not be necessary to dilate upon the effectiveness, or lack of it, of declaratory judgements. Experience proves that public authorities can be reasonably expected to respect a mere declaration made by a court of law. As Professor Zamir puts it :

A declaration made by the Court is not a mere opinion devoid of legal effect; the controversy between the parties is thereby determined and becomes a res judicata. Hence if the defendant subsequently acts contrary to the declaration, his act will be unlawful. The plaintiff may then again resort to the court, this time for damages to compensate him for loss suffered or for a decree to enforce his declared right. Apprehensive of such consequences, the defendant will usually yield to the declaratory judgement.13

Borchard has pointed out that :

The Court in rendering a judicial declaration of rights thus becomes an instrument not merely of curative but also of preventive justice.14

A great advantage that declaratory judgement has over executory judgement has been emphasised by Lord MacDermott. After pointing out that this remedy has certain important advantages compared with certiorari and prohibition, he says that :

the declaration being a statement of rights without order or direction for translating them into practice, the courts are not hampered by considerations of enforceability or conflict and are correspondingly freer to examine the issues fully and to reach a conclusion against the executive if that is warranted.15

III

There can be no difference of opinion to the proposition that a law in violation of a directive principle is unconstitutional. Dicey has said that by the term 'constitutional' is meant "in conformity with the principles of the Constitution".16 And what are the principles of the Indian Constitution? Are they to be looked for in provisions which lay down who should collect the income tax or how a governor is to be appointed? Are they not to be found set out in clear terms in the Preamble, in the Fundamental Rights and in the Directive Principles? The Directive Principles in our Constitution embody some of the principles of the Constitution and it follows, therefore, that a law passed in violation of the Directive Principles is unconstitutional. And it is open to an aggrieved person to seek a declaration to that effect from a court.17 It is true that the declaration thus obtained cannot be enforced by a court, that is, the public authorities cannot be restrained from enforcing the law that is declared unconstitutional, if they proceed to enforce it, as the courts are precluded under the provisions, from enforcing their declaration. The public authorities may also refuse to recognize the declaration as res judicata and enforce the unconstitutional law on any number of subsequent occasions. In all these instances, courts will be powerless to enforce their declaration, because in the first place there is a constitutional prohibition against its enforcement and secondly a declaratory judgement, by the very definition of it, is not intended to be enforced. In spite of these infirmities that may be ascribed to a declaratory judgement in this exceptional context, one may not be far too wrong in assuming that a declaratory decision by a superior court will be accorded great respect and disarming effect by the public authorities.

If the executive branch of the Government is intent on flouting the judgment of a court, it is always possible for it to do so, irrespective of the fact that the judgement is declaratory or executory. Instances have not been rare where a detainee who has been released from prison by order of the Court has been arrested at the gate of the prison and taken into custody again under the law providing for preventive detention. But there were more instances where the court's order was respected and the detainee released without being arrested at the prison gates. It may not be unreasonable to hope that a judgement which declares a law unconstitutional as violative of a directive principle will not, in general, be ignored by the Executive and that the law declared unconstitutional will not be enforced.

There is a further problem. A number of Directive Principles do not lend themselves to easy implementation. Many provisions in Part IV of the Constitution are hedged about by words such as : "The State shall, within the limits of its economic capacity and development" (Article 41); "The State shall endeavour" (Articles 43, 45, 47, 48, 51). "The State shall strive" (Article 38).

In such instances it will be difficult for the courts of law to decide what exactly, for instance, are the limits of the economic capacity of the State or whether the State has actually endeavoured or striven in a particular direction. There are, however, provisions which do not leave any scope for executive prevarication. Article 50, for instance, provides that the State shall take steps to separate the Judiciary from the Executive in the public services of the State. If a newly appointed Judicial officer is entrusted with work which normally falls within the ambit of the executive branch of the government it will not be difficult to see that the State has not take steps to separate the Judiciary from the Executive in this case. And a declaration to that effect by a Court should normally induce the Executive to remove the additional unconstitutional burden laid on the judicial officer.

At the present moment when the Directive Principles appear to assert their developing "rights" over the shifting fortunes of the Fundamental Rights, one need not be overtly pessimistic about the unenforceability of the Principles. For one thing, the government will be averse to adopting laws violative of the principles ; for another, if courts are inclined to hand down a declaratory judgement, the Executive will be hesitant, even if a little chagrined, to ignore it. Whatever be the infirmities attributed to popular Governments, dumbness is not one of them.

1. Quoted in K.C. Markandan, Directive Principles of State Policy, p. 29-80. See also CAD, V, p. 375 Appendix A. Return to Text
2. Ananthasayanam Ayyangar, CAD, VII, p. 475. Return to Text
3. K.T. Shah, moving his amendment to the effect that the Directive Principles should be made enforceable. He did not use the expression "justiciable", CAD, VII, 478-80. Return to Text
4. See Annexure I to the Draft Report prepared by Sir B.N. Rau in April 1947 on behalf of the Fundamental Rights Sub-committee. Chapter I enumerated the justiciable rights and Chapter II the non-justiciable rights. Return to Text
5. CAD, VII, 478. Return to Text
6. CAD, VII, p. 482. Return to Text
7. Ibid. p. 483. Return to Text
8. Ananthaswayanam Ayyangar, CAD, VII, 475. Return to Text
9. Justice Patanjali Sastri said in 1952 "The use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debate on the draft Constitution is unwarranted". (State of Travancore-Cochin v. Bombay Co. Ltd., 1952 SCR 1112, 1121). In 1972 Justice Beg observed: "It may be possible to look for legislative intention in materials outside the four corners of a statute where its language is really ambiguous or conflicting. But where no such difficulty arises, the mere fact that the intention of the law-makers sought to be demonstrated by what was said by some of them or by those advising them when the Constitution was on the anvil were really different from the result which clearly follows from the language used in the legislative provisions under consideration, could not authorize the use of such an exceptional mode of construction." S. Narayanaswami v. G. Pannirselvam, (1972) 3 SCC 717, 724. Return to Text
10. Black, A treatise on the Law of Judgements (1891) I. p. 1. quoted in E. Borchard, Declaratory Judgements, (2nd ed. 1941) p. 8. Return to Text
11. E. Borchard, Declaratary Judgements, (2nd ed. 1941) p. 10-11. Return to Text
12. See I. Zamir, The Declaratory Judgement, 1 (1962). Return to Text
13. Ibid., p. 8. Return to Text
14. Borchard, Declaratory Judgements, quoted in 1. Zamir, op. cit. p. 5. Return to Text
15. Lord MacDermott, Protection from Power under English Law, pp. 94-95. Return to Text
16. A. V. Dicey, Introduction to Study of the Law of the Constitution, p. 430 (8th ed. 1915). Return to Text
17. "The Court has power to make a declaration whenever it is just and convenient"-Lord Atakin in Simmonds v. Newport Abercon Black Vein Steam Coal Company, (1921) 1 KB 616, 630. Return to Text