DIRECTIVE PRINCIPLES OF STATE POLICY

2. The Directive Principles of State Policy (DPSP)

The concept of Directive Principles of State Policy (DPSP) originated from the Irish Constitution, inspired by the Spanish Constitution. In India, DPSP is enshrined in Part IV (Articles 36–51) of the Constitution. Article 37 outlines the application of these principles.

DPSP aims at ensuring socioeconomic justice and establishing India as a Welfare State. Unlike Fundamental Rights (FRs), DPSP is expansive and operates at a macro level, guiding state policies and laws. While Fundamental Rights restrict state action, DPSP provides affirmative directions for governance. They complement each other, with DPSP guiding the state in fulfilling its obligations towards citizens.

Classification of Principles

Directives based on Socialist Principles

• Article 38: Promotion of welfare by securing social, economic, and political justice, and minimizing inequalities.
• Articles 39: Policies towards securing adequate livelihood, common good in resource ownership, wealth distribution, equal pay, protection of workers, and prevention of exploitation.
• Article 41: Right to work, education, and public assistance.
• Article 42: Just and humane conditions of work and maternity relief.
• Article 43: Living wage and decent standard of life for workers.
• Article 43A: Participation of workers in industry management.
• Article 47: Nutrition, standard of living, and public health improvement.

Directives based on Gandhian Principles

• Article 40: Organization of village panchayats for self-government.
• Article 43: Promotion of cottage industries.
• Article 43B: Promotion of cooperative societies.
• Article 46: Promotion of weaker sections' educational and economic interests.
• Article 47: Public health improvement and prohibition of intoxicants.
• Article 48: Protection of cows, improvement of breeds.

Directives based on Liberal-Intellectual Principles

• Article 44: Uniform Civil Code.
• Article 45: Early childhood care and education.
• Article 48: Modern agriculture and animal husbandry.
• Article 48A: Environmental protection and conservation.
• Article 49: Protection of monuments.
• Article 50: Separation of judiciary from executive.
• Article 51: Promotion of international peace and security.

Amendments

• The 42nd Constitutional Amendment (1976) Introduced changes including free legal aid, worker participation in industry management, and environmental protection.
• The 44th Constitutional Amendment (1978) Added economic equality and eliminated the Right to Property from Fundamental Rights.
• The 86th Amendment Act of 2002 Made elementary education a fundamental right under Article 21 A.

3. The Fundamental Rights enshrined in the Indian constitution

The Fundamental Rights enshrined in the Indian Constitution are a set of rights guaranteed to all citizens of India, ensuring equality, justice, and liberty. These rights are listed in Part III (Articles 12–35) of the Constitution. 

Right to Equality (Articles 14–18)

• Article 14: Equality before law and equal protection of laws.
• Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
• Article 16: Equality of opportunity in public employment.
• Article 17: Abolition of untouchability.
• Article 18: Abolition of titles, except military and academic.

Right to Freedom (Articles 19–22)

• Article 19: Guarantees six freedoms:

• Article 20: Protection in respect of conviction for offences.
• Article 21: Protection of life and personal liberty.
• Article 21A: Right to education (Added by the 86th Amendment Act, 2002).
• Article 22: Protection against arrest and detention in certain cases.

Right against Exploitation (Articles 23–24)

• Article 23: Prohibition of traffic in human beings and forced labour.
• Article 24: Prohibition of employment of children in factories, etc.

Right to Freedom of Religion (Articles 25–28)

• Article 25: Freedom of conscience and free profession, practice, and propagation of religion.
• Article 26: Freedom to manage religious affairs.
• Article 27: Freedom as to payment of taxes for promotion of any particular religion.
• Article 28: Freedom from attending religious instruction or religious worship in certain educational institutions.

Cultural and Educational Rights (Articles 29–30)

• Article 29: Protection of interests of minorities.
• Article 30: Right of minorities to establish and administer educational institutions.

Right to Constitutional Remedies (Article 32)

4. About constitutional morality

Constitutional morality is a concept that goes beyond the written text of a constitution. It refers to the principles and values that underlie the constitution and guide the actions of both the government and the citizenry.

The key points about constitutional morality

• It emphasizes following the spirit or intent of the constitution, not just the letter of the law.
• It requires adhering to the norms of the constitution and avoiding actions that violate the rule of law or act arbitrarily.
• It fosters a commitment to democratic values enshrined in the constitution, like inclusivity and participation.
• It's not just about legal enforceability of rights, but also about a shared sense of responsibility towards upholding constitutional principles.

Examples of Constitutional Morality in Action

• Judges might use their discretion to interpret the Constitution in a way that upholds its underlying principles, even if the wording is not entirely clear.
• The government might enact policies that promote social justice or equality, even if not explicitly mandated by the constitution, but aligned with its spirit.
• Citizens might participate in peaceful protests or engage in public discourse to defend democratic principles enshrined in the Constitution.

Importance of Constitutional Morality

• It ensures the Constitution remains a living document that adapts to changing times while upholding its core values.
• It fosters a society where the government and citizens act by the Constitution's principles of fairness and justice.
• It reinforces democratic values like participation, tolerance, and respect for the rule of law.

Constitutional morality is not without its challenges

• There can be disagreements on how to interpret the spirit of the Constitution.
• It's not directly enforceable by courts, unlike fundamental rights.

5. What is the basic structure doctrine?

The doctrine of Basic Structure is a crucial concept in Indian Constitutional law. It essentially outlines that the Indian Constitution has certain fundamental features that cannot be abolished or drastically altered, even by amendments passed by the Parliament.

The key points of the Basic Structure Doctrine

• Established by the Supreme Court of India in the landmark case of Kesavananda Bharati v. State of Kerala (1973).
• To safeguard the core principles and character of the Constitution from being fundamentally changed by a temporary majority in Parliament.
• The phrase "basic structure" is not explicitly mentioned in the Constitution itself.

 Core features

The exact contours of the Basic Structure are not rigidly defined. However, various court judgments have identified some core features, including:

• The Constitution is the supreme law, and all other laws must be consistent with it.
• India is a union of states with a division of power between the centre and the states.
• The judiciary, legislature, and executive function independently to ensure checks and balances.
• The state treats all religions equally and does not promote any particular religion.
• India is a democracy where people elect their representatives and a republic where a head of state is elected.
• The basic human rights guaranteed to all citizens in Part III of the Constitution.

Impact of the Doctrine

• The doctrine empowers the judiciary to review constitutional amendments and strike down those that are deemed violative of the Basic Structure.
• It safeguards the essential character of the Constitution from being overridden by political majorities.
• It maintains a balance of power between the legislature and the judiciary.

Criticisms of the Doctrine

• The lack of a clear definition of the Basic Structure can lead to uncertainty during judicial review of amendments.
• Some argue that the doctrine gives the judiciary excessive power to invalidate legislative actions.

6.  How has the alcohol ban been justified by the states?

The justification for alcohol bans by states varies depending on the specific circumstances, socio-cultural factors, and policy objectives. 

• States often cite public health as a primary reason for implementing alcohol bans. Excessive alcohol consumption is associated with various health issues, including liver disease, cardiovascular problems, mental health disorders, and accidents. By banning or restricting alcohol sales, states aim to reduce alcohol-related health problems and promote public well-being.
• Alcohol abuse can lead to social problems such as domestic violence, crime, road accidents, and family breakdowns. States may justify alcohol bans as a means to address these social issues and maintain law and order within communities.
• In some states, alcohol bans are justified based on religious or cultural beliefs that prohibit or discourage alcohol consumption. For example, certain religious communities may consider alcohol consumption to be morally or spiritually unacceptable, and therefore advocate for its prohibition.
• States may implement alcohol bans to protect vulnerable groups such as minors, pregnant women, and individuals with addiction problems. Restricting access to alcohol can prevent underage drinking, fetal alcohol syndrome, and exacerbation of addiction issues.
• While less common, states may justify alcohol bans based on economic reasons. For example, alcohol-related healthcare costs, loss of productivity due to alcohol-related absenteeism, and expenses associated with law enforcement efforts to address alcohol-related crimes can impose a significant economic burden on society. By reducing alcohol consumption, states aim to alleviate these economic pressures.
• In democratic societies, alcohol bans may be justified based on the preferences and demands of local communities. If a majority of residents express concerns about the negative effects of alcohol consumption on their neighbourhoods, local authorities may consider implementing bans or restrictions in response to community feedback.

7. The precedence of DPSP over Fundamental Rights

In the Indian legal system, there is no explicit precedence of Directive Principles of State Policy (DPSP) over Fundamental Rights. However, the relationship between DPSP and Fundamental Rights is often understood in the context of their interpretation and application by the judiciary.

• Unlike Fundamental Rights, which are justiciable and enforceable by courts, DPSPs are non-justiciable as per Article 37 of the Indian Constitution. This means that courts cannot enforce DPSP against the government, and violations of DPSP cannot be challenged in court.
• While DPSPs are not directly enforceable, the Supreme Court has held that there should be a harmonious interpretation between DPSPs and Fundamental Rights. In other words, laws and policies formulated by the state should strive to achieve a balance between the goals outlined in DPSP and the rights guaranteed under Fundamental Rights.
• DPSP are considered as guidelines or directives for the government in formulating policies and laws. They reflect the socio-economic objectives that the state should strive to achieve. However, if there is a conflict between a directive principle and a fundamental right, the courts generally prioritize protecting the fundamental right.
• In certain cases, the state may impose reasonable restrictions on Fundamental Rights under specific circumstances, as provided for in the Constitution. However, any such restrictions must pass the test of reasonableness and proportionality. The courts play a crucial role in determining whether such restrictions are permissible.
• Over the years, the judiciary has evolved its interpretation of the relationship between DPSP and Fundamental Rights. While initially, there was a tendency to give primacy to Fundamental Rights, subsequent judgments have emphasized the importance of balancing the goals of DPSP with the protection of Fundamental Rights.

8. The best approach for a state- ban or regulation

Determining whether a state should implement a ban or regulation depends on various factors including the nature of the activity or substance being considered, societal norms and values, public health considerations, economic impacts, enforcement capabilities, and the effectiveness of alternative approaches. 

Banning

• Bans are often considered for activities or substances that pose significant risks to public health and safety, such as highly addictive drugs or hazardous materials. In such cases, a ban may be seen as the most effective way to mitigate these risks and protect public welfare.
• Banning may be justified based on cultural or moral objections to certain practices or substances. For example, bans on practices deemed morally reprehensible or harmful to societal values may be implemented to uphold community standards.
• In situations where there is an urgent need to address a pressing issue, such as a public health crisis or environmental emergency, a ban may be implemented as a swift and decisive measure to address the problem.
• Banning can be seen as a preventive measure to reduce the incidence of negative outcomes associated with a particular activity or substance. By prohibiting access or usage, the state aims to prevent harm before it occurs.

Regulation

• Regulation allows for a more nuanced and balanced approach to addressing complex issues. Rather than outright prohibition, regulations can impose restrictions, requirements, and standards to manage risks while still allowing for legitimate uses or activities.
• Regulations can be designed to minimize the harm associated with certain activities or substances while recognizing that complete elimination may not be feasible or practical. This approach focuses on harm reduction strategies such as education, harm prevention programs, and harm mitigation measures.
• Regulations can mitigate the economic impacts of bans by providing a framework for legal, regulated markets that generate revenue through taxes and licensing fees. This approach allows for the creation of legal businesses, job opportunities, and tax revenue while minimizing illicit markets.
• Regulations may be easier to enforce and comply with compared to outright bans, as they provide clear guidelines and standards for behaviour. Effective regulation requires robust enforcement mechanisms and public education campaigns to ensure compliance.