Contents
DIRECTIVE PRINCIPLES OF STATE POLICY
Views of Constitutional and political
experts on ‘Directive Principles of State Policy’:
Types of Directive Principles of State
Policy’
Liberal–Intellectual Principles:
Cases Involved with respect to FRs and
DPSP
Features of the Fundamental Duties
By Simple Majority of Parliament:
By Special Majority of Parliament:
By Special Majority of Parliament and
Consent of States:
Elements of the Basic Structure
Cases with respect to Basic structure
Effects of National Emergency:
Effect on the Centre–state Relations:
Effect on the Life of the Lok Sabha and
State Assembly:
Effect on the Fundamental Rights:
Effects of Financial Emergency:
Introduction: The phrase ‘Directive Principles of State Policy’
denotes the ideals that the State should keep in mind while formulating
policies and enacting laws. It includes the legislative and executive organs of
the central and state governments, all local authorities and all other public
authorities in the country.
The Directive Principles are non-justiciable in nature, that is, they are not
legally enforceable by the courts for their violation. Therefore, the
government cannot be compelled to implement them.
They aim at providing social and economic justice of
the people.
Views of
Constitutional and political experts on ‘Directive Principles of State Policy’:
K.T. Shah: ‘A cheque on
a bank payable only when the resources of the bank permit.’
Nasiruddin: ‘No better
than the new year’s resolution which are broken on the second of January’.
T.T.
Krishnamachari: “A veritable dustbin of sentiments.”
K.C. Wheara: Manifesto of
aims and aspirations.
B.N. Rao: Moral
precepts for the authorities of the state. They have at least an educative
value.
M.C.
Chagla: “If all these principles are fully carried out, our
country would indeed to be a heaven on earth.”
Based on the nature of principles DPSP’s are divided
in to 3 types
Article 38: To promote the welfare of the people by securing a
social order permeated by justice, social, economic and political, and to minimise
inequalities in income, status, facilities and opportunities.
Article 39: To secure
(a)
The right to adequate means of livelihood for all
citizens;
(b)
The equitable distribution of material resources of
the community for the common good;
(c)
Prevention of concentration of wealth and means of
production;
(d)Equal pay for
equal work for men and women;
(e)
Preservation of the health and strength of workers
and children against forcible abuse;
(f)
Opportunities for healthy development of children.
Article 39 A: To promote equal justice and to provide free legal
aid to the poor.
Article 41: To secure the right to work, to education and to
public assistance in cases of unemployment, old age, sickness and disablement.
Article 42: To make provision for just and humane conditions
for work and maternity relief.
Article 43: To secure a living wage, a decent standard of life
and social and cultural opportunities for all workers.
Article 43 A: To take steps to secure the participation of
workers in the management of industries.
Article 47: To raise the level of nutrition and the standard of
living of people and to improve public health.
Article 40: To organise village Panchayats and endow them with
necessary powers and authority to enable them to function as units of self
government.
Article 43: To promote cottage industries on an individual or
co-operation basis in rural areas.
Article 43B: To promote voluntary formation, autonomous
functioning, democratic control and professional management of co-operative
societies.
Article 46: To promote the educational and economic interests
of SCs, STs, and other weaker sections of the society and to protect them from
social injustice and exploitation.
Article 47: To prohibit the consumption of intoxicating drinks
and drugs which are injurious to health.
Article 48: To prohibit the slaughter of cows, calves and other
milch and draught cattle and to improve their breeds.
Article 44: To secure for all citizens a uniform civil code
throughout the country.
Article 45: To provide early childhood care and education for
all children until they complete the age of six years.
Article 48: To organise agriculture and animal husbandry on
modern and scientific lines.
Article 48A: To protect and improve the environment and to
safeguard forests and wild life.
Article 49: To protect monuments, places and objects of
artistic or historic interest which are declared to be of national importance.
Article 50: To separate the judiciary from the executive in the
public services of the State.
Article 51: To promote international peace and security and
maintain just and honourable relations between nations; to foster respect for
International law and treaty obligations, and to encourage settlement of
international disputes by arbitration.
Champakam Dorairajan case (1951)
Golaknath case (1967)
Kesavananda Bharati case (1973)
Minerva Mills case (1980).
In 1976, the Fundamental Duties were added in the
Constitution on the recommendation of Sardar Swaran Sing Committee [42nd Constitutional
Amendment Act]. The fundamental duties are 11 in number.
Ten duties were included in the Indian Constitution
by the 42nd Amendment Act 1976 and the Eleventh duty was added by the 86th
Amendment Act, 2002. There is no provision in the Constitution for direct
enforcement of any of these duties nor any sanction to prevent their violation.
According to Article 51 A, it shall be the duty of
every citizen of India:
1.
To abide by the Constitution and respect its ideals
and institutions, the National Flag and the National Anthem.
2.
To cherish and follow the noble ideals that inspired
the national struggle for freedom;
3.
To uphold and protect the sovereignty, unity and
integrity of India;
4.
To defend the country and render national service
when called upon to do so;
5.
To promote harmony and the spirit of common
brotherhood amongst all the people of India transcending religious, linguistic
and regional or sectional diversities and to renounce practices derogatory to
the dignity of women;
6.
To value and preserve the rich heritage of the
country’s composite culture;
7.
To protect and improve the natural environment
including forests, lakes, rivers and wildlife and to have compassion for living
creatures;
8.
To develop scientific temper, humanism and the
spirit of inquiry and reform;
9.
To safeguard public property and to abjure violence;
10.
To strive towards excellence in all spheres of
individual and collective activity so that the nation constantly rises to
higher levels of endeavour and achievement;
11.
To provide opportunities for education to his child
or ward between the age of 6 to 14 years. This duty was added by the 86th
Constitutional Amendment Act 2002.
Features of the
Fundamental Duties
Following points can be noted with regard to the
characteristics of the Fundamental Duties:
1.
Some of them are moral duties while others are civic
duties. For instance, cherishing noble ideals of freedom struggle is a moral
precept and respecting the Constitution, National Flag and National Anthem is a
civic duty.
2.
They refer to such values which have been a part of
the Indian tradition, mythology, religions and practices. In other words, they
essentially contain just a codification of tasks integral to the Indian way of
life.
3.
Unlike some of the Fundamental Rights which extend
to all persons whether citizens or foreigners1, the Fundamental Duties are
confined to citizens only and do not extend to foreigners.
4.
Like the Directive Principles, the fundamental
duties are also non-justifiable. The Constitution does not provide for their
direct enforcement by the courts. Moreover, there is not legal sanction against
their violation. However, the Parliament is free to enforce them by suitable
legislation.
Amendment procedure of
Indian constitution is rigid like in USA as well as flexible like in UK. It is
a synthesis of both. The Parliament
cannot amend those provisions
which form the ‘basic structure’ of the Constitution. This was ruled by the
Supreme Court in the Kesavananda Bharati case (1973).
Amendment procedures are mentioned in the Article 368 of the
constitution.
Step 1: Initiated in either house of parliament either by a
minister or a private member (Other than Ministers who heads departments).
Step2: Bill must be passed in both the houses by more than 50
percent of the total membership of the house and a majority of two-third
members of the house present and voting.
Step3: In case of disagreement, a joint sitting of the two houses
for purpose of deliberation and passage of the bill.
Step4: After duly passed by both the Houses of Parliament and
ratified by the state legislatures, where necessary, the bill is presented to
the president for assent.
Step5: After the
president’s assent, the bill becomes an Act.
The Constitution can be amended in three ways:
(a) Amendment
by simple majority of the Parliament
(b) Amendment
by special majority of the Parliament
(c) Amendment
by special majority of the Parliament and the ratification of half of the state
legislatures.
By Simple Majority of Parliament:
A number of provisions in the Constitution can be amended by a
simple majority of the two Houses of Parliament outside the scope of Article
368. These provisions include:
1.
Admission or establishment
of new states.
2.
Formation of new states
and alteration of areas, boundaries or names of existing states.
3.
Abolition or creation of
legislative councils in states.
4.
Second
Schedule—emoluments, allowances, privileges and so on of the president, the
governors, the Speakers, judges, etc.
5.
Quorum in Parliament.
6.
Salaries and allowances of
the members of Parliament.
7.
Rules of procedure in
Parliament.
8.
Privileges of the
Parliament, its members and its committees.
9.
Use of English language in
Parliament.
10.
Number of puisne judges in
the Supreme Court.
11.
Conferment of more
jurisdictions on the Supreme Court.
12.
Use of official language.
13.
Citizenship—acquisition
and termination.
14.
Elections to Parliament
and state legislatures.
15.
Delimitation of
constituencies.
16.
Union territories.
17.
Fifth
Schedule—administration of scheduled areas and scheduled tribes.
18.
Sixth
Schedule—administration of tribal areas.
By Special Majority of Parliament:
The majority of the provisions in the Constitution need to be
amended by a special majority of the Parliament, that is, a majority (that is,
more than 50 per cent) of the total membership of each House and a majority of
two-thirds of the members of each House present and voting.
The provisions which can be amended by this way include:
(i) Fundamental
Rights;
(ii) Directive
Principles of State Policy;
(iii) All
other provisions which are not covered by the first and third
categories.
By Special Majority of Parliament and
Consent of States:
Those provisions of the Constitution which are related to the
federal structure of the polity can be amended by a special majority of the
Parliament and also with the consent of half of the state legislatures by a
simple majority. If one or some or all the remaining states take no action on
the bill, it does not matter; the moment half of the states give their consent,
the formality is completed. There is no time limit within which the states
should give their consent to the bill.
The following provisions can be amended in this way:
1.
Election of the President
and its manner.
2.
Extent of the executive
power of the Union and the states.
3.
Supreme Court and high
courts.
4.
Distribution of
legislative powers between the Union and the states.
5.
Any of the lists in the Seventh
Schedule.
6.
Representation of states
in Parliament.
7.
Power of Parliament to
amend the Constitution and its procedure (Article 368 itself).
K C Wheare said there is a ‘Strikes a good balance between
flexibility and rigidity’. Also he has admired the variety of amendment
procedures contained in the Constitution of India. He said, ‘this variety in
the amending process is wise but rarely found’.
According to Granville Austin, ‘the amending process has proved
itself one of the most ably conceived aspects of the Constitution. Although it
appears complicated, it is merely diverse’.
Elements of the Basic Structure
1.
Supremacy of the
Constitution
2.
Sovereign, democratic and
republican nature of the Indian polity
3.
Secular character of the
Constitution
4.
Separation of powers
between the legislature, the executive and the judiciary
5.
Federal character of the
Constitution
6.
Unity and integrity of the
nation
7.
Welfare state
(socio-economic justice)
8.
Judicial review
9.
Freedom and dignity of the
individual
10.
Parliamentary system
11.
Rule of law
12.
Harmony and balance
between Fundamental Rights and Directive Principles
13.
Principle of equality
14.
Free and fair elections
15.
Independence of Judiciary
16.
Limited power of
Parliament to amend the Constitution
17.
Effective access to
justice
18.
Principle of reasonableness
19.
Powers of the Supreme
Court under Articles 32, 136, 141 and 142
1.
Shankari Prasad v. Union
of India, (1951)
2.
Golak Nath v. State of
Punjab, (1967)
3.
Kesavananda Bharati v.
State of Kerala, (1973)
4.
Minerva Mills v. Union of
India, (1980)
5.
Waman Rao v. Union of
India, (1981)
These provisions are
mentioned in part XVIII of the constitution from article 352 to 360. These
provisions enable the central government to meet any abnormal situation
effectively.
During an Emergency, the Central government becomes all powerful
and the states go into the total control of the Centre. It converts the federal
structure into a unitary one without a formal amendment of the Constitution.
The Constitution stipulates three types of emergencies:
1.
An emergency due to war,
external aggression or armed rebellion2 (Article 352). This is popularly known
as ‘National Emergency’. However, the Constitution employs the expression
‘proclamation of emergency’ to denote an emergency of this type.
2.
An Emergency due to the
failure of the constitutional machinery in the states (Article 356). This is
popularly known as “President’s Rule”. It is also known by two other
names—“State Emergency” or “constitutional Emergency”. However, the
Constitution does not use the word “emergency” for this situation.
3.
Financial Emergency due to
a threat to the financial stability or credit of India (Article 360).
President can declare
a national emergency when the security of India or a part of it is threatened
by war or external aggression or armed rebellion.
Ø Can
declare a national emergency even before the occurrence of the event.
Ø The
President can also issue different proclamations on grounds of war, external
aggression, armed rebellion, or imminent danger.
When a national emergency is declared on the ground of ‘war’ or
‘external aggression’, it is known as ‘External Emergency’. On the other hand,
when it is declared on the ground of ‘armed rebellion’, it is known as
‘Internal Emergency’. The 44th Amendment Act of 1978 substituted the words
‘armed rebellion’ instead of ‘internal disturbance’.
In the Minerva Mills case
(1980), the Supreme Court held that the proclamation of a national
emergency can be challenged in a court.
The enforcement of Emergency must be approved by both the Houses
of Parliament within one month from the date of its issue. if the proclamation
of emergency is issued at a time when the Lok Sabha has been dissolved or the
dissolution of the Lok Sabha takes place during the period of one month without
approving the proclamation, then the enforcement of emergency survives until 30
days from the first sitting of the Lok Sabha after its reconstitution, provided
the Rajya Sabha has in the meantime approved it.
Every resolution approving the proclamation of emergency or its
continuance must be passed by either House of Parliament by a special majority
that is, (a) a majority of the total membership of that house, and (b) a
majority of not less than two-thirds of the members of that house present and
voting.
A proclamation of emergency may be revoked by the President at any
time by a subsequent proclamation. Such a proclamation does not require the
parliamentary approval. The 44th Amendment Act of 1978 also provided that,
where one-tenth of the total number of members of the LokSabha give a written
notice to the Speaker (or to the president if the House is not in session), a special
sitting of the House should be held within 14 days for the purpose of
disapproving the continuation of the proclamation.
A proclamation of Emergency has drastic and wide ranging effects
on the political system. These consequences can be grouped into three
categories:
1. Effect on the Centre–state relations,
2. Effect on the life of the Lok Sabha and State assembly, and
3. Effect on the Fundamental Rights.
During a national emergency, the executive power of the Centre
extends to directing any state regarding the manner in which its executive
power is to be exercised.
During a national emergency, the Parliament becomes empowered to
make laws on any subject mentioned in the State List. Although the legislative
power of a state legislature is not suspended, it becomes subject to the
overriding power of the Parliament.
While a proclamation of national emergency is in operation, the
President can modify the constitutional distribution of revenues between the
centre and the states. This means that the president can either reduce or
cancel the transfer of finances from Centre to the states.
While a proclamation of National Emergency is in operation, the
life of the Lok Sabha may be extended beyond its normal term (five years) by a
law of Parliament for one year at a time (for any length of time). However,
this extension cannot continue beyond a period of six months after the
emergency has ceased to operate
Similarly, the Parliament may extend the normal tenure of a state
legislative assembly (five years) by one year each time (for any length of
time) during a national emergency, subject to a maximum period of six months
after the Emergency has ceased to operate.
Articles 358 and 359 describe the effect of a National Emergency
on the Fundamental Rights. Article 358 deals with the suspension of the
Fundamental Rights guaranteed by Article 19, while Article 359 deals with the
suspension of other Fundamental
Rights (except those guaranteed by Articles 20 and 21).
Centre government takes over the government of a state under
Article 356 in case of failure of constitutional machinery in state. This is
popularly known as ‘President’s Rule’. It is also known as ‘State Emergency’ or
‘Constitutional Emergency’.
Imposition of President Rule in 2 cases:
1.
Government of a state
cannot be carried on in accordance with the
provisions of the Constitution.
2.
State fails to comply with
or to give effect to any direction from the Centre.
A proclamation imposing President’s Rule must be approved by both
the Houses of Parliament within two months from the date of its issue. If
LokSabha is not in session, then it should be approved within 30 days from the
sitting of the Lok Sabha, in the mean time Rajya Sabha approves it.
The President’s Rule continues for a period of six months. It can be
extended for a maximum period of three years with the approval of the
Parliament, every six months.
Continuation of president’s rule can be passed by either House of
Parliament only by a simple majority, that is, a majority of the members of
that House present and voting.
The President acquires the following extraordinary powers when the
President’s Rule is imposed in a state:
1.
He can take up the
functions of the state government and powers vested in the governor or any
other executive authority in the state.
2.
He can declare that the
powers of the state legislature are to be exercised by the Parliament.
3.
He can take all other
necessary steps including the suspension of the constitutional provisions
relating to anybody or authority in the state.
Powers of parliament when president rule is in force:
1.
The Parliament can
delegate the power to make laws for the state to the President or to any other
authority specified by him in this regard.
2.
The Parliament or in case
of delegation, the President or any other specified authority can make laws
conferring powers and imposing duties on the Centre or its officers and
authorities.
Article 360 empowers the president to proclaim a Financial
Emergency if he is satisfied that a situation has arisen due to which the
financial stability or credit of India or any part of its territory is
threatened.
A proclamation declaring financial emergency must be approved by
both the Houses of Parliament within two months from the date of its issue.
However, if the proclamation of Financial Emergency is issued at a time when
the Lok Sabha has been dissolved during the period of two months without
approving the proclamation, then the proclamation survives until 30 days from
the first sitting of the LokSabha after its reconstitution, provided the Rajya
Sabha has in the meantime approved it.
A proclamation of Financial Emergency may be revoked by the
president at anytime by a subsequent proclamation. Such a proclamation does not
require the parliamentary approval.
(a) The reduction of salaries and allowances of all or any class
of persons serving in the state; and
(b) The reservation of all money bills or other financial bills
for the consideration of the President after they are passed by the legislature
of the state.
(c)The President may issue directions for the reduction of
salaries and allowances of all or any class of persons serving the Union and
also the judges of the Supreme Court and the high court.
|
Article No. |
Description |
|
352 |
Proclamation of Emergency |
|
353 |
Effect of Proclamation of Emergency |
|
354 |
Application of provisions relating to
distribution of revenues while a Proclamation of Emergency is in operation. |
|
355 |
Duty of the Union to protect states against
external aggression and internal disturbance. |
|
356 |
Provisions in case of failure of constitutional
machinery in states |
|
357 |
Exercise of legislative powers under proclamation
issued under Article 356 |
|
358 |
Suspension of provisions of Article 19 during
Emergencies |
|
359 |
Suspension of the enforcement of the rights
conferred by Part III during Emergencies |
|
359A |
Application of this part to the state of Punjab
(Repealed) |
|
360 |
Provisions as to Financial Emergency |