Non-justiciability of Directive Principles

Also called: Article 37 · Topic: Directive Principles and Fundamental Duties · NCERT: Class 7, Ch 10 "The Constitution of India: An Introduction"; Class 11, Ch 2 "Rights in the Indian Constitution"; Class 11, Ch 8 "Local Governments"; Class 11, Ch 10 "The Philosophy of the Constitution"

Meaning

The non-justiciability of Directive Principles (Article 37) means two things. No court can force the State to carry out the Directive Principles of State Policy (DPSP) in Part IV. Yet the same Article calls these principles "fundamental in the governance of the country" and makes it the State's duty to apply them when it makes laws [2].

This is the main difference between Part IV and the Fundamental Rights in Part III. It explains why DPSP work as moral and political duties rather than legal ones. It also explains why critics called them "pious wishes" while defenders called them the "conscience of the Constitution".

Explanation

How Article 37 works: two halves of one sentence

• First half: "shall not be enforceable by any court" [2]
• Justiciable means a court can enforce it. Non-justiciable means it cannot.
• So no citizen can go to court and ask that the State be ordered to carry out a directive. For example, a citizen cannot sue to make the State provide a living wage (Art. 43).

• Fundamental Rights are different. A citizen can take them to the Supreme Court (Art. 32) or a High Court (Art. 226).

• Second half: "nevertheless fundamental in the governance of the country" [2]

• Non-justiciable does not mean unimportant.
• The State has a duty to apply these principles in making laws [2].

• The job of carrying them out belongs to the State, not the courts [2].

• Who is "the State" here?

• Under Art. 36, "State" in Part IV has the same meaning as in Art. 12.
• It covers the Union government and Parliament, the state governments and legislatures, and local and other authorities.

Why the framers made them non-justiciable

• Money: the newly independent State lacked the money to meet all these goals at once. It could not promise in court what its budget could not pay for.
• Free hands for future governments: the framers wanted to give policy direction without tying the hands of future governments.

• Ambedkar said economic democracy could be reached in many ways, such as socialism or communism. So the Constitution would not fix one economic path [3].

• Moral force: the framers trusted the moral weight of the directives.

• Voters as the real check: they expected voters to hold governments to account at elections.
• Class 7 NCERT in simple words:
• FRs are promises you can take to a judge.
• DPSP are goals that take time to reach as the country makes progress.

Where the idea came from

• Spain 1931 → Ireland 1937 → India 1950
• India took the idea from the Irish Constitution of 1937, Art. 45, "Directive Principles of Social Policy".

• Ireland itself had borrowed from the Spanish Constitution of 1931.

• Sapru Committee (1945): it first proposed splitting rights into justiciable and non-justiciable ones.

• B.N. Rau, the Constitutional Adviser, gave the same advice. This split later became Part III and Part IV.
• Instrument of Instructions: under the Government of India Act 1935, the British Government gave written orders to the Governor-General and Governors on how to use their powers.
• Ambedkar said the directives are "more or less" an Instrument of Instructions [3].
• The difference is who receives them. The directives are instructions to the Legislature and the Executive of free India [3].

Limits and effects of non-justiciability

• What it does not stop:
• Judges still use DPSP to interpret laws.

• Judges also use them to decide whether a limit on a Fundamental Right is "reasonable".

• What it does stop:

• It stops any court order that forces the State to act on a directive.

• The vague wording ("shall endeavour", "within the limits of its economic capacity") makes legal enforcement harder still.

• How a directive can become enforceable:

• Parliament can move a directive into Part III as a right, or pass a law to carry it out.
• Once that happens, the law or right can be enforced. The directive itself still cannot.

In the Constitution and practice

• Location: Article 37, Part IV (Arts. 36–51) of the Constitution.
• Drafting history:
• Article 37 was Draft Article 29 of the 1948 Draft Constitution.
• The Constituent Assembly adopted it without change on 19 November 1948 [2].

• One member moved an amendment to make the directives legally binding. The member warned that otherwise they would stay "merely pious wishes". The amendment failed [2].

• Ambedkar's defence (19 November 1948):

• The directives are an Instrument of Instructions to the Legislature and Executive [3].

• They aim at economic democracy as well as political democracy [3].

• How directives have become law or rights in practice:

• 86th Amendment (2002, Act dated 12 December 2002): the old Art. 45 asked for free and compulsory education for children up to 14. That goal moved into Part III as the Fundamental Right in Art. 21A, so it can now be enforced. The new Art. 45 covers early childhood care and education for children below six [6][7].
• 42nd Amendment (1976) added three new directives, all still non-justiciable:
  • Art. 39A: equal justice and free legal aid. It later became the basis for free legal aid [4].
  • Art. 43A: workers' participation in the management of industries [5].
  • Art. 48A: protect and improve the environment and safeguard forests and wild life [8].

• Art. 40 → Panchayati Raj: the directive on village panchayats was later given effect through law.

• Critics' fears from the Assembly:

• K.T. Shah: "a cheque on a bank payable at the convenience of the bank".
• Naziruddin Ahmad: "New Year's resolutions".
• T.T. Krishnamachari: "a veritable dustbin of sentiments".
• K. Santhanam warned of friction in two places:
  • between the Centre and the states, if the Centre directs a state to apply DPSP;
  • between the President and the PM, if the President refuses to sign a bill that goes against the directives.

Don't confuse with

• Fundamental Rights (Part III): FRs can be enforced in court (Art. 32, Art. 226) and mostly limit what the State may do. DPSP cannot be enforced (Art. 37) and are duties that require the State to act.
• "Non-justiciable" vs "not binding on the State": courts cannot enforce DPSP. But Art. 37 still makes applying them a duty of the State and calls them fundamental in governance [2].
• Fundamental Duties (Part IVA): Fundamental Duties are duties of citizens. DPSP are duties of the State, as defined in Art. 36 and Art. 12.
• South Africa's socio-economic rights: South Africa's 1996 Constitution lets courts enforce rights such as housing, health care, food and water. India chose non-justiciable directives instead.

Prelims Hooks

• Art. 37: DPSP "shall not be enforceable by any court" but are "fundamental in the governance of the country". It was Draft Art. 29, adopted on 19 November 1948 [2].
• Art. 36: "State" in Part IV has the same meaning as in Art. 12.
• Sapru Committee (1945) first suggested splitting rights into justiciable and non-justiciable. The idea came from the Irish Constitution 1937 (Art. 45), which drew on Spain 1931.
• "Instrument of Instructions" (Ambedkar) refers to the orders given to the Governor-General and Governors under the Government of India Act 1935 [3].
• 86th Amendment (2002): education for ages 6–14 moved from a non-justiciable directive (old Art. 45) to an enforceable FR (Art. 21A) [6][7].
• Trap, match the critic:
• "cheque on a bank payable at the convenience of the bank" is K.T. Shah;
• "New Year's resolutions" is Naziruddin Ahmad;
• "dustbin of sentiments" is T.T. Krishnamachari;
• "conscience of the Constitution" (Parts III and IV) is Granville Austin.

Mains Points

• Non-justiciability was a deliberate choice, not a weakness:
• A poor new State could not promise in court what its budget could not pay for.
• The framers left the economic path open to future governments [3] and relied on moral force and voters.

• Art. 37 still puts a duty on the State to apply the directives when it makes laws [2].

• The line between Part III and Part IV keeps shifting:

• Art. 45 became Art. 21A (86th, 2002) [6][7].
• Art. 39A became the basis of free legal aid [4].

• This shows directives can grow into enforceable rights as the State's resources grow. South Africa's enforceable socio-economic rights point the same way.

• Should DPSP be made binding? (Class 11 NCERT debate)

• For: the poor need food, work and schooling more than abstract freedoms. A promise no court can enforce helps them little.
• Against: courts cannot create money or jobs. Binding duties could clash with the budget and with the choices of elected governments.
• Balanced view: even without courts, DPSP set an agenda for every government, guide judges and give voters a yardstick.

Related concepts

• Directive Principles of State Policy
• Instrument of Instructions
• Economic democracy
• Welfare state
• Classification of Directive Principles

Read more

• Directive Principles: origin, nature and purpose