May 20, 2002


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Ashwin Mahesh

Justice without justiciability?

The National Commission to Review the Working of the Constitution presented its report to Parliament at the end of March. In matters relating to the fundamental rights of citizens, many of the commission's recommendations are praiseworthy, and Parliament must be diligent in following through.

Other recommendations, however, fall short of the wisdom that should have resulted from a yearlong exercise. In pressing forward with the 'socialist' nature of the Constitution -- a political after-thought to the original document dating from senseless plans to hatao garibi -- members of the commission have repeatedly urged the impractical on many counts. The most telling failure, however, lies in the commission's myopia in judging the Directive Principles of State Policy.

Articles 36 to 51, together known as the Directive Principles of State Policy, contain exhortations to the government to press forward in particular directions. These include the enaction of a uniform civil code, obtaining universal education for all children, ensuring a living wage for all employment, and other compelling goals of the good society.

But even while urging these inspiring objectives the framers of the Constitution allowed an easy exit door -- by exempting the Directive Principles from the force of law. That is, these may very well be the goals of the Government of India, but their achievement, or even active pursuit, is neither required by law nor actionable in the courts. And predictably, one Lok Sabha after another has found this exemption convenient cover for its political leaden-footedness.

Even prior to the term of the commission, I observed that meaningful reform of the Constitution could be obtained by the simple act of making the Directive Principles actionable in the courts. Therefore, when the commission began its work in earnest, I hoped that a portion of its energies would be reserved to the question of actually achieving the Directive Principles, and the matter of examining whether their unjusticiable nature has rendered them impotent. Sadly, not so. The Directive Principles proudly claim to be fundamental to the nature of the Constitution, the courts themselves regard the Principles as the "conscience" of the Constitution, and yet a commission to review the Constitution has passed them by with only the smallest consideration.

The commission was clearly not unmindful of the need to examine whether the Directive Principles should be made actionable. However, members chose to rely upon an old legal distinction between that which is "justiciable", ie that remedy to obtain stated goals can be sought in the courts, and that which is "enforceable", ie, that the State shall feel obliged to "take steps" towards ensuring these ends. This distinction descends from various international treaties overseen by the United Nations, an organisation whose own democratic credentials are dubious at best, and also from various European models of assuring citizens' rights. No matter the merit of those efforts, their value in judging the performance of the Indian Constitution should not have been regarded as final. Such pre-judgement defeats the very purpose for which the commission was created, namely to review how well the Constitution has worked!

Consider, especially, that in a nation of governments marked by apathy towards the suffering of millions, the academic nature of the distinction between the justiciable and the enforceable is immediately evident. The commission nonetheless chose not to confront this failing. Instead, it merely recommends that "an appropriate mechanism must be devised to oblige the State to take action", and even at this juncture left an escape hatch open. Namely, that the word "obligation" itself shall be interpreted to mean no more than a minimum set of core obligations -- notice the use of a word in describing what the word itself means! -- that the State shall simply attempt to meet to the maximum of its available resources.

Having assured themselves such, the members continue with recommendations now rendered toothless by their self-denial. The very first suggestion in this section reads: "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'." The current heading of the section is 'Directive Principles Of State Policy', meaning that the addition of the words 'and action' is the critical difference being urged. The dilution of the obligation that governments act on these principles as a key malady of the existing document clearly did not escape the commission. And yet, all it produced was a superficial change to the title!

Other recommendations within this section (pertaining to the Directive Principles) are consistent with the listless nature of the review in dealing with these articles. A strategic plan of action should be initiated to further employment, and such a plan may include some key areas identified by the commission. An education commission to report on progress towards universal education should be established. The State shall endeavour to get the growth rate of the population under control. An interfaith mechanism to promote civil society should be set up. Review bodies for how well certain rights are guaranteed and schemes to ensure them implemented should be set up. A huge data-gathering exercise should be undertaken to study all this stuff! And so on and on...

Frankly, the whole series of recommendations regarding the Directive Principles could easily have been rewritten in a few words. As in "more should be done, and more people should be given jobs to do this, and more information should be collected as to how this can be done". But not a word as to the remedies available to citizens if nothing is done. Not a word as to the measures by which these various bodies to be constituted can be said to have made progress. A government bureaucracy charged with the task of establishing the department of doing actually nothing could not have come up with a more thorough list of useless suggestions to achieve what the framers called the 'fundamental' nature of our Constitution.

The trouble with such superficial consideration of these important Principles is that the recommendations, taken in their entirety, appear shallow. Amidst some really inspiring stuff regarding the rights of all citizens, we find buried this nonsense about what we ought to do and how well we ought to try to do it, but nothing about what the State and the citizens are required to do, or the legal remedies for failing to do them. The Constitution is very much a legal document, and to absolve portions of it from contractual obligations between parties is simply to concede that the legality inherent in the book is not fully intended.

In pursuing a merely intellectual consideration of how the State shall be obliged and how those limited obligations may be satisfied, the commission has failed to ensure that the provisions made in the Directive Principles shall be of service to the nation. While splitting hairs between the justiciable and enforceable, the commission has lost sight of justice itself.

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Postscript: This criticism pertains only to those recommendations in the section on the Directive Principles. There is, admittedly, much in the commission's report that is praiseworthy, including the material relating to the Fundamental Rights of citizens, as noted above. Also, note that in an earlier column on the Directive Principles (in Jan 2001), I used the word "enforceable" to mean "actionable in the courts" and did not make the distinction that the commission has used between the State's obligations, and legal standing therefor.

Ashwin Mahesh

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