D. Directive Principles
Principles of Governance
3.25.1 It
is only during the last two or three decades that there has been a perceptible
shift in intellectual discourse in the academia towards problems and principles
of good governance as contradistinguished from issues of government and
politics. Our founding
fathers, however, were far-sighted people. They realised even in the late 1940s
the difference and in article 37 specifically spoke of certain
"principles" being "fundamental" in the "governance of
the country". Also,
the State was enjoined "to apply these principles in making laws."
3.25.2 The founding fathers were conscious of
the fact that mere political democracy, i.e., getting the right to vote once in
five years or so was meaningless unless it was accompanied by social and
economic democracy. Political
equality was not possible unless men were made equal on the social and economic
plane as well. Right to
vote for a hungry and illiterate man without clothing and shelter meant
little. Dr. Ambedkar had
said:
"We do not want merely to lay down
a mechanism to enable people to come and capture power. The Constitution also wishes to lay
down an ideal before those who would be forming the government. That ideal is of economic
democracy."
3.25.3 The
Supreme Court has, in a number of judgements, referred to the importance of the
Directive Principles. It
has called these principles the “conscience” of the Constitution and also as
the core of the Constitution. These
principles are the “goals” to be achieved by Part III of the
Constitution. They are
intended to ensure “distributive justice” for removal of inequalities and
disabilities and to achieve a fair division of wealth amongst the members of
the society. The Supreme
Court held that the courts can look at the Directive Principles for the purpose
of interpretation of the fundamental rights. The courts will adopt that
interpretation which makes the fundamental rights meaningful and efficacious.
The courts have to make every attempt to reconcile the fundamental rights with
the Directive Principles remembering that the reason why the Directive
Principles were left by the founding fathers as non-enforceable was to give the
Government sufficient latitude to implement them.
3.25.4 The
Directive Principles are indeed the precursor to the Economic, Social and
Cultural Rights specified in the International Covenant on Economic, Social and
Cultural Rights, 1966 (ICESCR). They
reflect the consensus on the intrinsic necessity of these means and envisage
State action which would facilitate the transfer and distribution of power --
leading to transmission of power to the citizens and this is loosely called
“empowerment” of the people. Democracy
will become real when in practice there is sharing of power and responsibility
by all sections of the people and it becomes illusory when it is about pursuit
of power by the dominant sections alone. The Directive Principles cannot be
confined to mere rhetoric or to ad
hoc policies of electoral
appeasement or handouts.
3.25.5 The
comparable provisions of the Directive Principles of State Policy enshrined in
the Constitution of India and the ICESCR are given below :-
|
Articles
of the Constitution
|
Articles
of ICESCR
|
|
Article
39
|
Articles
3, 6 (1) and 7
|
|
Article
41
|
Article
6 and 7
|
|
Article
42
|
Articles
7 and 10.2
|
|
Article
43
|
Articles
11 (1), 11(2) and 15
|
|
Article
45
|
Articles
13 (1), (2)(a), (3) and (4) and 14
|
|
Article
47
|
Articles
12(1), (2), (a) to (d)
|
|
Article
51
|
Articles
1.3 and 2 (1)
|
3.25.6 The
concept of a division among human rights is no longer accepted in contemporary
human rights discourse. Further,
recent constitutional changes in the East European states have set at naught
some of the reasons for the divide. Again,
the description of the Civil and Political rights as ‘negative’ rights which
prohibit the State from interfering with rights of the individuals and the
description of the Economic, Social and Cultural rights as ‘positive’ rights
which require affirmative action by the State is not accepted by jurists any
longer. The theory that the former rights are justiciable and the latter rights
are not justiciable has not also been accepted by scholars. The existence of any basis for such
division is described as a 'myth' and inaccurate generalization
[1].
3.25.7 The
Vienna World Conference on Human Rights, 1993 reaffirmed that the Civil,
Political and the Economic, Social and Cultural Rights are ‘universal,
interdependent and indivisible.’ The European Social Charter 1961 (revised charter
1996) and Protocols; the American Convention on Human Rights, 1969 (effective
from 1978); the African Charter of Human Rights and Peoples’ Rights, 1981
(effective from 1986) and finally the Human Rights Act, 1998 (UK) (which
incorporates several provisions of the European Convention) and the South
African Convention, 1996 deal with Civil, Political and Economic, Social and
Cultural Rights covering the whole gamut of rights.
3.25.8 The
Father of the Nation, Mahatma Gandhi stated in the Second Round Table
Conference in London, long before the UN Declaration of Human Rights, 1948 that
his aim was "to establish a political society in India in which there
would be no distinction between high class of people and low class of people,
that women should enjoy the same rights as men; and dignity, justice, social,
economic and political, would be ensured to the teeming millions of India.”
3.25.9 In the Annual Report of the National
Human Rights Commission 1997-98, this is what is stated about our country:
“It is said that one third of the world’s poor are Indians, who
lacked clean drinking water, basic sanitation and minimum standards of health
care, food and nutrition….Persistence of such a situation constitutes a failure
of governance which had urgently to be remedied for it is on the pillars of
good governance that promotion of human rights in the final analysis rests.”
Justiciability and Enforceability
3.26.1 The judiciary is not suited, according
to several writers to enforce some of the ICESCR rights. Where the resources of
the nation are involved and a question of priority arises, the remedy cannot be
judicial. However, the concept here is not “justiciability” at the
instance of individuals in courts of law, but the concept is one of
“enforceability” which means that the State must “recognize”, and “take steps”,
by adopting “legislative” or other measures for the “full realisation” and “to
the maximum of the State's available resources, both “individually and through
international assistance and co-operation”. These are the words actually used by
the ICESCR and have been the subject matter of voluminous literature. These rights are described as
“entitlements” of the people and give rise to “obligations” on the part of the
State parties. The
enforcement must first be of the “minimum core obligations” as stated in Para
10 of the General Comment No.3 of 1990 of the U.N. Committee on Economic,
Social and Cultural Rights.
3.26.2 It
is felt that an appropriate mechanism must be devised to oblige the State to
take action step by step and progressively for the realisation of these rights
to the maximum within the resources of the State.
3.26.3 The
Commission recommends that the heading of Part IV of the Constitution should be
amended to read as “DIRECTIVE PRINCIPLES OF STATE POLICY AND ACTION”.
Right to Social Security and to Work
3.27.1 Article
41 directs the State to make effective provision for securing the right to
work, to education and to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved want. This is social security in its widest
sense. It is a measure of
the distance the country still has to travel to build a good society. The present situation, as revealed by
successive UNDP reports, is one of hardship and deprivation for very large
sections of our people. Poverty
eradication continues to be a major challenge for social and economic policy. The ‘trickle-down’ theory did not work
but neither did the direct anti-poverty programmes.
3.27.2 Safety nets like the Public Distribution System (PDS), the
Integrated Rural Development Programmes, and the targeted programmes for women
and children have also not had the measure of success that was hoped for. Even the step up in growth rates
following the introduction of the new economic strategy of liberalization has
not succeeded in generating substantial increases in employment that alone would reduce poverty and
increase the sense of security among the people. It is clear that a many-sided
approach has to be developed to increase growth rates, to structure labour
intensive projects spread through the length and breadth of the country and to
help the vulnerable sections of the people to take advantage of government
programmes intended for their welfare.
3.27.3 The
Commission, therefore, recommends the initiation of a strategic Plan of Action
to create a large number of employment opportunities in five years to realize
and exploit the enormous potential in creating such employment
opportunities. The
components of this plan may include:
(1) Improvement of productivity in
agriculture that will activate a chain of activities towards increased income
and employment opportunities.
(2) Integrated horticulture that will
include production of fruits, vegetables and flowers, cut-flowers for export
and medicinal plants as well as establishment of bio-processing industries
aimed primarily at value-addition of agricultural products.
(3) Intensification of animal
husbandry programs and production of quality dairy products.
(4) Integrated Program of Intensive
Aquaculture including use of common property resources like village ponds and
lakes.
(5) Afforestation and Wasteland
Development to bring an additional 12 million hectares under forest plantation
and contribute to rural asset building activity.
(6) Soil and Water Conservation to
support afforestation and Natural Resource Conservation towards eco-friendly
agriculture.
(7) Water Conservation and Tank
Rehabilitation.
(8) Production and use of organic
manures through vermiculture and other improved techniques and production of
organic health foods from them.
3.27.4 The State
should provide opportunity to every person to gain his living by work which he
freely chooses or accepts – which shall include the technical and vocational
guidance and training programmes, polices and techniques to achieve steady
economic, social and cultural development and full and productive employment
under conditions safeguarding fundamental political and economic freedom to the
individual. The right to
work does not mean that everybody is to be employed by the State. It only means
that the State has to develop “employment opportunities” both in the public and
private sector
[1].
3.27.5 The resource
requirement for the implementation of this plan can be met by integrating the
plethora of government programmes and changing their focus towards employment
generation and income enhancing activities. Institutionally, this plan of action
can succeed only if programmes are people-oriented and developed in a
participatory mode. A
change in mindset where people are regarded as “partners in development” rather
than “beneficiaries” is necessary.
3.27.6 The
foregoing considerations suggest a complete change in emphasis insofar as
growth strategy is concerned. What
is important is how work, productive work, will enhance incomes for the individual
and the community. It is
essential to make a beginning toward making the right to work the integral
component of growth and development strategy. The Commission has carefully examined
the relevant economic data on the subject and has come to the conclusion that a
realistic approach to the right to work is not only desirable, it is entirely
feasible.
Right to
Health
3.28.1 The right to health has been treated
by the Supreme Court as part of the right to ‘life’ in article 21
[1]. But, the right to health is not a
right to be ‘healthy’. It
means a right both to certain ‘freedoms’ and ‘entitlements’. The freedoms include the right to
control ones’ health and body, including sexual and reproductive freedom and
the right to be free from interference, such as by non-consensual medical
treatment and experimentation. Entitlements
include a right to a system of health protection with equality of opportunity
to enjoy the highest attainable level of health – a right to the enjoyment and
availability of facilities, good services and conditions such as physical
accessibility, economic accessibility and information accessibility. It must be qualitative and should include the right to healthy
working conditions and preventive medicine.
3.28.2 The State has to “respect, protect and
fulfill" its obligations in these areas for children, adults and those in
old age
[1]. As of today, free medical treatment in
government hospitals is totally inadequate. Nor is it available always in close
neighbourhood. It is not
possible to deal extensively with the pathetic conditions of medical care
provided by government hospitals in our country. It is a fact of life that the poorer
and weaker sections of society are unable to afford the extraordinary expense involved
in the medical care provided by private hospitals. There is, therefore, an
urgent need to see that, progressively, the State allocates adequate funds in
this behalf[3].
Right to
Food and Freedom from Hunger, Clothing and Housing or Shelter
3.29.1 The State must
recognize the right of everyone to an adequate standard of living for himself
and his family, including adequate food, clothing and housing and to the
continuous improvement of living conditions; the State shall also have to
recognize the right of
everyone to be free from hunger. It
shall then have to initiate programmes to improve methods of production,
conservation and distribution of food by making full use of technical and
scientific knowledge, by disseminating knowledge of the principles of nutrition
and by developing or reforming agrarian system in such a way as to achieve the
most efficient development and utilization of natural resources; and to take
into account, the problem of both food-importing and food-exporting countries
and to ensure an equitable distribution of world food supplies in relation to
need.
3.29.2 It is
well-known that while the godowns of the Food Corporation of India are
overflowing and even rotting with excess food grains, there are reports of
starvation deaths across the country. Further, quite a good percentage of food
grains are lost due to inadequate conservation and also during
distribution. This must be
avoided by introducing proper systems.
3.29.3 The
State must ensure right to housing or shelter. The Government of India formulated the
National Housing Policy 1988, 1994, and the National Housing and Habitat
Policy, 1998. There are various schemes for weaker sections, slum developments,
etc.
[1]. As already stated, this right has been
recognized by the Supreme Court of India as part of the right to life under
article 21[4].
3.29.4 The Commission is convinced that the realization of the
right to food, clothing and housing requires the State to prepare long range
and short range plans for proper allocation of necessary funds.
Right to Education
3.30.1 Article 45
under the Directive Principles had envisaged free and compulsory education
within ten years for all children till the age of 14. The national goal of
universalisation of elementary education has still not been reached. Education for all remains an objective
with the target date being pushed forward after every review. Increase in literacy rates to 72 per
cent by 2007 and to 80 per cent by 2012, and universal access to primary
education by 2007, have been set as goals in the approach paper to the Tenth
Plan.
3.30.2 It should also be laid down in article
45 that the State shall make provision for education beyond the age of fourteen
years within the limits of its economic capacity and stage of development.
New Challenges to Education Policy
3.31.1 We live in an age of rapid
social, economic and technological change. Educational policy and programmes have
to reflect the changed requirements in content and techniques of delivery.
There has been a paradigm shift from a teaching to a learning process. Information and communication
technology have to be harnessed to the goal of achieving education for
all. The need for autonomy,
continuous review, flexibility and clarity have to be built into policy. The educational system should impart
moral and ethical values essential for good citizenship.
3.31.2 Autonomy for the education budget
should be ensured. Some
sanctity should be attached to the core provisions, such as teachers’
salaries. There is a strong
case for constitutional protection for the service conditions of
teachers. Moreover, there
is need to insulate educational institutions from needless litigation.
3.31.3 The Commission recommends
that an independent National Education Commission should be set up every five
years to report to Parliament on the progress of the constitutional directive
regarding compulsory education and on other aspects relevant to the knowledge
society of the new century. The model of the Finance Commission may be usefully
looked into.
Control of Population
3.32 The
Commission noted with concern that proper planning and monitoring of the
socio-economic development of the country is considerably hampered and
neutralized by the exponential growth of population.
The Commission, therefore, recommends that
the following article should be added as a directive principle of state policy
after article 47 of the Constitution:
“Art.
47A. Control of
Population:- The State shall endeavour to secure control of population by means
of education and implementation of small family norms.”
Right to Culture
3.33.1 Article 49 of the Directive Principles
requires the State to protect monuments and places and objects of national importance. For the purpose of protecting culture
in all its facets and in developing it, the State has to set apart necessary
resources.
3.33.2 More than five decades of experience
with the working of our Constitution and the laws has borne out that democracy
in a meaningful sense, depends on a pluralistic ethos permeating the
polity. Our national life
must be accommodative of the myriad variegations that make up the unique mosaic
of India's society. The
framework of our many and elaborate structures of government must exemplify the
architecture of an inclusive society and one of the means is to promote civil
society initiatives for inter-religions and social harmony.
3.33.3 All considered, as advised by
experience and by present and emerging needs, it is felt that a mechanism may
be brought into being which can advance the cause of inter-faith harmony and
solidarity. This can be
done under the auspices of the National Human Rights Commission.
Promotion of Inter-Religious harmony and
inter-faith values
3.34.1 Past experience
indicates that in sensitive areas and localities of the country where
inter-religious conflicts have sprung up out of trivial incidents resulting in
conflagration, extensive damage to life and property. The setting up of “Mohalla Committees” with the participation of
prominent members of different communities to take note of early warning
symptoms and alerting the administration in preventing them have produced
enduring beneficial results. In
particular, the endeavours made in Bhiwandi, in the State of Maharashtra, after
the tragic riots there, have emphasised the value of such measures.
3.34.2 The Commission, therefore,
recommends the setting up of an inter-faith mechanism to promote such civil
society initiatives. In the Commission’s view, this can be done under the
auspices of the National Human Rights Commission set up under section 3 of the
Protection of Human Rights Act, 1993 which, inter alia, provides for the
participation of “the Chairpersons of the National Commission for Minorities,
the National Commission for Scheduled Castes and Scheduled Tribes and the
National Commission for Women” who shall be deemed to be the Members of the
Commission for the discharge of functions specified in clauses (b) to (j) of the
section 12 of the said Act. The
Chairpersons of the National Commission for Backward Classes and National
Commission for Safai Karamcharis should be co-opted to this body. This body could, in addition to its
other statutory functions, also function as mechanism for promotion of
inter-religious harmony. With an appropriate statutory enablement by way of
enlargement of section 12 of the said Act, the purpose could be achievedwithout
additional expenditure for setting up a separate mechanism. Section 12 of the
said Act could be amended by the addition of clause (k), which shall read as
under:
“(k)
promoting through civil society initiatives, inter-faith and inter-religious harmony and social
solidarity”.
By this simple
statutory enablement, with consequential
amendment in Section 3(3), the Chairpersons of all the aforesaid
Commissions who meet and interact would, in collaboration with the National
Foundation for Communal Harmony (established under the Ministry of Home
Affairs, Government of India), would be able to oversee the installation and
working of “Mohalla Committees”
and other civil society initiatives in sensitive areas which particularly
require promotion of inter-faith harmony.
Mechanism for realisation of Directive
Principles
3.35.1 The State should devise appropriate mechanisms for
realisation of Directive Principles. The Commission does not propose to
recommend a complaints procedure inasmuch as it is more concerned with a
procedure which will ensure proper allocation of resources for the realization
of the right to work, health, food, clothing, housing, education and culture.
Domestic bodies in various countries have different composition, membership and
powers.
3.35.2 In the view of the Commission,
there must be a body of high status which first reviews the state of the level
of implementation of the Directive Principles and Economic, Social and Cultural
Rights and in particular (i) the right to work, (ii) the right to health, (iii)
the right to food, clothing and shelter, (iv) Right to Education upto and
beyond the 14th year,
and (v) the Right to Culture. The
said body must estimate the extent of resources required in each State under
each of these heads and make recommendations for allocation of adequate
resources, from time to time. For
ensuring that the Directive Principles of State Policy are realized more
effectively, the following procedure is suggested:-
(i) The Planning Commission shall
ensure that there is special mention/emphasis in all the plans and schemes
formulated by it, on the effectuation/realization of the Directive Principles
of State Policy.
(ii) Every Ministry/Department of the
Government of India shall make a special annual report indicating the extent of
effectuation/realization of the Directive Principles of State Policy, the
shortfall in the targets, the reasons for the shortfall, if any, and the
remedial measures taken to ensure their full realization, during the year under
report.
(iii) The report under item (ii) shall
be considered and discussed by the Department Related Parliamentary Standing
Committee, which shall submit its report on the working of the Department
indicating the achievements/failures of the Ministry/Department along with its
recommendations thereto.
(iv) Both the above Reports i.e. (ii) and (iii) above shall be
discussed by the Planning Commission in an interactive seminar with the
representatives of various NGOs, Civil Society Groups, etc. in which the
representatives of the Ministry/Department and the Departmental Related
Parliamentary Standing Committee would also participate. The report of this
interaction shall be submitted to the Parliament within a time bound manner.
(v) The Parliament shall discuss the
report at (iv) above within a period of three months and pass a resolution
about the action required to be taken by the Ministry/Department.
3.35.3 A similar mechanism as mentioned
above may be adopted for the States.
Credibility of
Socio-economic Data
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