cpc

directive principles must be justiciable

Advocate

Directive Principles of State Policy shall Enforceable in Courts of law

 

Article 37 of Constitution lays down that the provisions contained in Part IV of Constitution 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 provisions in making laws.

 

For a long time in the legal history of post independence era the debate as to whether the Directive Principles are enforceable in the Court of law or not is taking the shape of which one of these two parts of Constitution shall have primacy over the other.  More than 200 judgments were delivered when there was conflict between Parliament and Judiciary with regard to repealing of Fundamental right to property and introduction of Article 31C of the Constitution.  Though Article 37 lays down that the Directive principles are not justiciable, when the Parliament makes a law with regard to any matter in pursuance of achieving the objects of Directive principles the matter rests squarely on Judiciary when any litigation arises with respect to the law which is made by parliament to enforce the Directive principles.  Hence review and interference of Courts is unavoidable.

 

Many Jurists seem to have differed with the view (including Justice Krishna Iyer in Municipal Council Ratlam vs. Vardichand) that Directive principles are not justiciable.  Daring and insightful as he is, Justice Krishna Iyer pronounced in this judgment:

 

Where Directive Principles have found statutory expression in Do's and Don'ts the court will not sit idly by and allow municipal government to become a statutory mockery. The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice. The dynamics of the judicial process have a new `enforcement' dimension not merely through some of the provisions of the Criminal Procedure Code (as here) but also through activated tort consciousness. The officers in charge and even the elected representatives will have to face the penalty of the law if what the Constitution and follow up legislation direct them to do are defied or denied wrongfully. The wages of violation is punishment, corporate and personal.

 

The Bench comprising of distinguished Jurists Justice Krishna Iyer and Justice O. Chinnappa Reddy upheld the decision of Senior Divisional Magistrate in this case directing the Municipal Council Ratlam to take corrective measures to clean up the mess created by slum dwellers and nearby Industrial establishments which of flowing in the form of Nala on the road adjacent to dwelling houses.  The Directions given under powers available under S.133 of Criminal Procedure Code if not followed would be met with punishment under S.188 of the said Code.  The decision of the Sessions court that the Courts have no power to direct the State to comply with the orders relating to affirmative action which are in the nature of implementing the Directive principles of State Policy was overwhelmingly overruled by the High Court of Madhya Pradesh and the Supreme Court as well. 

 

Similar opinion was echoed by the Supreme Court in Minerva Mills case :

 

When the State makes a law for giving effect to a Directive Principle, it is carrying out a constitutional obligation under Article 37 and if it were to be said that the State cannot make such a law because it comes into conflict with a Fundamental Right, it can only be on the basis that Fundamental Rights stand on a higher pedestal and have precedence over Directive Principles. But, as we have pointed out above, it is not correct to say that under our constitutional scheme, Fundamental Rights are superior to Directive Principles or that Directive Principles must yield to Fundamental Rights. Both are in fact equally fundamental and the courts have therefore in recent times tried to harmonise them by importing the Directive Principles in the construction of the Fundamental Rights. It has been laid down in recent decisions of this Court that for the purpose of determining the reasonableness of the restriction imposed on Fundamental Rights, the Court may legitimately take into account the Directive Minerva Mills Ltd. & Ors vs Union Of India & Ors on 31 July, 1980 Principles and where executive action is taken or legislation enacted for the purpose of giving effect to a Directive Principle, the restriction imposed by it on a Fundamental Right may be presumed to be reasonable. I do not propose to burden this opinion with reference to all the decided cases where this principles has been followed by the Court, but I may refer only to one decision which, I believe, is the latest on the point, namely, Pathumma v. State of Kerala, where Fazal Ali, J. summarised the law in the following words: "one of the tests laid down by this Court is that in judging the reasonableness of the restrictions imposed by clause (5) of Art. 19, the Court has to bear in mind the Directive Principles of State Policy". So also in the State of Bihar v. Kameshwar Singh, this Court relied upon the Directive Principle contained in Art. 39 in arriving at its decision that the purpose for which the Bihar Zamindary Abolition legislation had been passed was a public purpose. The principle accepted by this Court was that if a purpose is one falling within the Directive Principles, it would definitely be a public purpose.

 

…………. Minerva Mills & Ors vs. Union of India & Ors.

 

In the case of Municipal Council Ratlam, in fact, the Magistrate is not proposing any affirmative action to be undertaken by the State.  Sometimes the punitive action imposed by court manifests as corrective measures and such corrective measures cannot be challenged under the garb of Article 37.  Even the Sessions Court was right in its perspective that the Court has no business to direct the public authorities to take affirmative action under the garb of imposing a punishment.  In the opinion of Sessions Court S.133 of Cr.PC is intended not to punish the Public authorities and Public Authorities are outside the purview of that Section so far as it relates to giving directions to undertake affirmative action.  Interestingly many directions were given by the Supreme Court to monitor the progress of work to be taken up by the Municipal Council Ratlam and it had gone to the extent of choosing the amount of expenditure and the scheme to initiative corrective measures.  Courts are already burdened with thousands of litigations and it is not advisable that they step into the shoes of Executive to take up policy initiatives and also to monitor and follow up the executive action.  That apart, the issue of how far the Sessions Court is right in saying that a Public authority is not under the purview of Courts so far as S.133 of Cr.PC is concerned must be addressed. 

 

Article 300 gives locus standi to the citizens to sue the state.  Hence, even if any public authority is responsible for any public nuisance he is under the purview of Courts to be adjudicated for his commissions and omissions. In that view of matter it is not correct to say that Public authorities are exempted from the purview of S.133 of Cr.PC.  However, if the true essence of that Section is to be imported to arrive at the decision, the Sessions Court is right in saying that Public authorities cannot be mandated to take up affirmative action in view of Article 37 of the Constitution. 

 

Here, the nuances of justiciable parameters are not clearly laid down by the Supreme Court.  That needs to be cleared. 

 

Let me illustrate with an example for the sake of simplicity.

 

A residential colony with all facilities of drainage sewerage etc and all wealthy people having toilets is being made filthy by residents by allowing children to defecate on streets.  And several traders are assembling there to sell fruit and vegetables and dumping their wastes on road.  It is not happening because of the recklessness of the Municipal Council.  In such case it is not the in the purview of S.133 to mandate the Muncipal Council to clean up.  However if accumulation of filth and waste is a result of negligence on the part of Municipal Council then it is in the purview of S.133 of Cr.PC.  In such cases Article 37 is no defence. 

 

There is no dichotomy between Fundamental rights and Directive Principles of State Policy.  The platitude that Directive Principles are not justiciable cannot be held in a straightjacket.  Both are supplementary to one another.  If a good legislation is made by parliament to bridge the gap between haves and have-nots it will promote the Fundamantal right to equality. If a Court directs the State to ensure equal pay for equal work then the consequence is also affirmative action because the enforcement of negative obligation in itself manifest as an affirmative action to bring socio economic equality. 

 

In Ratlam case, the Municipal Council argued that the people who bought houses in that colony have bought them knowing fully well that there is largescale pollution in the form of Nala on the road.  And there are no funds available with it to clean up. Here the question is - How far the Courts can enforce the Directive principles of State policy? Article 37 imports a constraint on Judiciary for the very reason that on matters relating to availability of state finances, courts cannot adjudicate.  In simple words, in a country of 100 people no one can argue in a court of law, that 50 people are getting salary of 100000 rupees per annum and 50 are getting only 50000 rupees per annum and hence the government should tax the people getting salary of 100000 per annum to the extent of 25000 per annum and pay them.  That is what exactly the constraint on judiciary in Article 37 aims at. 

 

However in a country of 100 people if the government is ensuring that 50 are earning 100000 per annum and remaining 50 are earning only 50000 per annum, then it is for courts to correct this anomaly.  In other words if the Socio economic disparity is because of inequitable legislation then Courts must step in to implement the Directive principles. 

 

In Ratlam case, for instance, the Court cannot hold back saying the Municipal Council should not take up affirmative action if the Municipal Council is spending the available funds to construct a fly over in a Posh colony ignoring the plight of people in Slums.  If there are no funds available at all, then Article 37 is a defence.  If there are funds available with the State and they are being utilized to meet the luxuries of one segment of population ignoring the basic needs of another segment of population then Article 37 is no defence.

 

In the state of things that we are placed in today, it cannot be said that the State is impoverished and lacking in funds.  Though a large segment of population is below poverty line, the exchequers of government are replenished with money, the economy as far as government exchequer is concerned is not as bad as it was in sixties and seventies.  In this situation, how the State spends its funds in its executive action cannot be questioned in courts is an archaic and futile argument and should be given up.  Whenever a policy or legislation gives effect to a disparity, a fundamental right is violated one way or other at place or other.  Hence the constraint imposed in Article 37 on courts must be liberalized and Courts must look into the way the funds are being spent by State in order to ensure that one segment of population do not profligate at the cost of another segment of population.  This is not to say that judiciary must step in the shoes of executive.  Wherever socially conscious groups and citizens file cases citing examples of discriminatory state spending giving rise to glaring disparities between one segment of population and another, courts must shed the inhibitions relating to Article 37 and liberally look into the aspect of pattern of State expenditure – whether it is in the direction of achieving the Directive principles of State policy or not and whether deviation from the Directive principles led to violation of fundamental rights of (groups) of citizens.  Where fundamental rights are violated enmasse it cannot be safe argument to say that I will only sit in judgment of violation of individual rights.  . 

 

 

 

 

 

 

 

 

 
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Advocate

A residential colony with all facilities of drainage sewerage etc and all wealthy people having toilets is being made filthy by residents by allowing children to defecate on streets.  And several traders are assembling there to sell fruit and vegetables and dumping their wastes on road.  It is not happening because of the recklessness of the Municipal Council.  In such case it is not the in the purview of S.133 to mandate the Muncipal Council to clean up.  However if accumulation of filth and waste is a result of negligence on the part of Municipal Council then it is in the purview of S.133 of Cr.PC.  In such cases Article 37 is no defence. 

 

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S.133 Cr.PC


Conditional order for removal of nuisance. (1) Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate specially empowered in this of behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-

 

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
 
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Here what is interesting to note is the underlined words in S.133 Cr.PC which supports the above passage in the earlier message.  Is Defecation in public place a LAWFUL USE BY THE PUBLIC? No.  It cannot be.  If it is not lawful use by the public, the Court has no business to direct the Municipality to clean it up. 
 
 
And secondly even if it is assumed that it is lawful use because poverty-struck population cannot have any other go, who are the people responsible for the cleaning up of the filth in the street.  Easier to say it is Municipality, but more specifically who are the people?  The Municipal Commissioner will not clean up, nor the Mayor.  It is Class 4 employees, the sweepers of roads who do the job.  Their fundamental right to life is not violated (Right to Life includes Right to Wholesome Environment)?
 
 
Sometimes poverty riddles even the distinguished jurists.
 
 
But what is appreciable is the Supreme Court did not strictly go by rule book, and had given a judgment which appeals to the common sense of a prudent man.  In my view justice is what appears as justice to a prudent man or a man of ordinary intelligence, rather than to a hyper-technical mind which can endlessly debate about the nuances in laws and loses its sight of a simplistic and wholesome view of what many would appreciate as justice.  Justice is what appears as justice to a human eye, done not by giving a overburdened look with a hyper-technical mind. 
 
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