Articles 37, and 38 of the Constitution read as under:-
“37. Application of the principles contained in this Part. — 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.
38. State to secure a social order for the promotion of welfare of the people.—
(1) 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 justice, social, economic and political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour 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.
Article 37 states that the provisions contained in Part-IV of the Constitution (Directive Principles of State Policy) 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. Although Prof. K.T. Shah, a member of the Constituent Assembly, sought for the Directive Principles being enforceable and proposed devising a suitable mechanism for that purpose, the said suggestion was turned down and the draft Article 29 was added as Article 37 of the Constitution.
In State of West Bengal vs. Subodh Gopal Bose, AIR 1954 SC 92 (“Subodh Gopal Bose”), this Court held that the Directive Principles of State Policy are not justiciable or enforceable by any Court; nevertheless, there is a duty cast on the courts to interpret the Constitution and the laws in furtherance of the Directive Principles as under Article 37 it has been stated that they are fundamental in the governance of the Country. Thus, it was held that there can be no law which can be in conflict with the Directive Principles of State Policy, although, the Articles in Part-IV by themselves cannot be enforced per se in a court of law.
It is well-known that the Directive Principles of State Policy have been borrowed from the Irish Constitution. Article 45 of the Irish Constitution provides that the application of the Principles of Social Policy shall not be cognizable by any Court, that the said principles are intended for the general guidance of the Irish National Parliament. Further the application of the social policy in making of laws shall be the care of the Irish National Parliament exclusively.
Similarly, Article 37 of the Constitution of India states that the Directive Principles shall not be enforceable by any Court but they are fundamental in the governance of this Country and it shall be the duty of the State to apply the Directive Principles in making laws. Also, there is a metamorphosis of this provision vide Minerva Mills decided by this Court by interpreting the same as per the intention of the framers of the Constitution.
Moreover, as between fundamental rights and Directive Principles of State Policy, it is a settled position of law that the fundamental rights are enforceable whereas the Directive Principles are to be considered while interpreting Part-III of the Constitution and they are not per se enforceable. The Directive Principles are primarily aimed at securing social and economic freedoms by appropriate State action. They are the social conscience of the Constitution; they are the goals and aims sought for achieving a welfare State in India.
However, while considering a challenge to a violation of fundamental rights the Directive Principles could be considered and it is only when, to achieve the goals or the aims sought to be promoted through the Directive Principles, if there is a violation of the fundamental rights inasmuch as there is a violation of Articles 14, 15 or 16, that the means of achieving the goals could be struck down.
Thus, fundamental rights ought to be interpreted in light of the Directive Principles and the latter should, whenever and wherever possible, be read into the former. It is also said that fundamental rights and Directive Principles are supplementary and complementary to each other and the provisions in Part-III should be interpreted having regard in such a way to the Preamble and the Directive Principles of the State Policy in Part-IV.
It is said that fundamental rights and Directive Principles of the State Policy are the two-wheels of the chariot and are an aid to make social and economic democracy a truism vide Jilubhai vs. State of Gujarat, AIR 1995 SC 142 (“Jilubhai”). What is of significance is that the court must give a proper and meaningful interpretation to the Directive Principles so as to harmonize them with the objectives enshrined in the Preamble of the Constitution, namely, Justice – political, social and economic with individual rights in the context of Part-III and Part-IV of the Constitution respectively.
While in the initial years of the enforcement of the Constitution, fundamental rights were given primacy, however, there has been a clear shift in the judicial thinking in considering Directive Principles being fundamental to the governance of the Country by courts when laws are challenged on the keystone of there being an apparent violation of the fundamental rights.
Article 38
The thrust of Article 38 is to promote the welfare of the people by the State by securing and protecting as effectively as it may, a social order in which social, economic and political justice shall inform all the institutions of national life. This Article positions the Indian state as being beyond than what is meant for the maintenance of law and order. The Indian State being a welfare State must pursue social, economic and political justice which must inform all institutions of the national life.
While clause (1) of Article 38 is general in nature, clause (2) inserted by Section 9 of the Constitution (Forty-fourth Amendment) Act, 1978 w.e.f. from 20.06.1979 is illustrative of the content of the ideal in clause (1) of Article 38. Clause (2) of Article 38 states that States shall, in particular, strive to minimise the inequality in income and endeavour to eliminate the inequality in status, facilities and opportunities, not only among individuals but also among groups of people, residing in different areas or engaged in different vocations. Article 38 envisions social justice for enhancing human dignity in an egalitarian, social, economic and political democracy. The said Article essentially speaks of the social and economic revolution which is an example of the Constitution of India’s transformative vision.
The State takes the responsibility in bringing about a welfare State, a just “social order” where “justice – social, economic and political” prevails and where there is equity, equality and non-discrimination by bringing about “equality of status and of opportunity”, as enumerated in the Preamble of the Constitution. Thus, Article 38 is a keystone for the implementation of the Directive Principles.
Reference
Property Owners Association v. State of Maharashtra (2024)