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Concept of Welfare State and Its Relevance in Indian Scenario(Save as .pdf)

Published : January 17, 2011 | Author :shraddha ojhaCategory :Constitutional Law| Total Views : 10261 | Unrated Print| Email to friend

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An Articleon

Administrative Law:

Concept of Welfare State and Its

Relevance in Indian Scenario

INTRODUCTION TO THE TOPIC

Administrative discretion in simple words is toknow through law what is just and it helps indetermining whether an action is necessary ornot regarding the certain events and happenings

shraddha ojhaShraddha Ojha, i am astudent of 5 year law

course of B.A., L.L.B (Hons.). Iam studying in Nirma

university, Ahmedabad. and alsopursuing my company secretarycourse.

View articles | Contact author

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in the modern world scenario. Officials haveauthority to act coupled with certain restrictions

and accountability.

UNDERSTANDING WELFARE STATE

A welfare state is a concept of government where the state

plays a key role in the protection and promotion of the

economic and social well-being of its citizens. It is based onthe principles of equality of opportunity, equitable

distribution of wealth, and public responsibility for those

unable to avail themselves of the minimal provisions for a

good life. The general term may cover a variety of forms ofeconomic and social organization.[1]

There are two main interpretations of the idea of a welfare

state:

A model in which the state assumes primaryresponsibility for the welfare of its citizens. This

responsibility in theory ought to be comprehensive,

because all aspects of welfare are considered and

universally applied to citizens as a "right".

Welfare state can also mean the creation of a "socialsafety net" of minimum standards of varying forms of

welfare.[2]

In the strictest sense, a welfare state is a government that

provides for the welfare, or the well-being, of its citizens

completely. Such a government is involved in citizens lives

at every level. It provides for physical, material, and social
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needs rather than the people providing for their own. The

purpose of the welfare stateis to create economic equality or

to assure equitable standards of living for all.[3]

The welfare state provides education, housing, sustenance,healthcare, pensions, unemployment insurance, sick leave

or time off due to injury, supplemental income in some

cases, and equal wages through price and wage controls. It

also provides for public transportation, childcare, social

amenities such as public parks and libraries, as well as

many other goods and services. Some of these items are

paid for via government insurance programs while others

are paid for by taxes.

TWO FORMS OF THE WELFARE STATE

There are two ways of organizing a welfare state:

According to the first model the state is primarily

concerned with directing the resources to the people most

in need. This requires a tight bureaucratic control over the

people concerned, with a maximum of interference in their

lives to establish who are "in need" and minimize cheating.

The unintended result is that there is a sharp divide between

the receivers and the producers of social welfare, between

"us" and "them", the producers tending to dismiss the whole

idea of social welfare because they will not receiveanything of it. This model is dominant in the US.[4]

According to the second model the state distributes welfare

with as little bureaucratic interference as possible, to all

people who fulfill easily established criteria (e.g. having


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children, receiving medical treatment, etc). This requires

high taxing, of which almost everything is channeled back

to the taxpayers with minimum expenses for bureaucratic

personnel. The intendedand also largely achievedresult

is that there will be a broad support for the system sincemost people will receive at least something. This model was

constructed by the Scandinavian ministers Karl Kristian

Steincke and Gustav Mller in the 30s and is dominant inScandinavia.[5]

THEORY OF WELFARE STATE

The genesis and development of the concept of the welfare

state lay in the interaction of ideas, mainly, conservatism,

liberalism and socialism, in the unique British historical

setting of a qualitative change from administrative to

ameliorative legislation. The formative period of the

concept involved an interesting application of empiricism

and ideology to the problem of poverty. The welfare state,

conceived within the liberal framework, involved a social

consensus on a wide spectrum of socio economic policies.

Two sociological factors largely contributed to the growth

of the concept: first, increasing prosperity that produced a

revolution of rising expectations; and second, the hope and

the fear generated by the newly acquired manhoodfranchise. The faith in piecemeal social engineering, bereft

of dogma, set the precedent for expanding municipal

activity and governments interest in social reform. This,

indeed, was an ominous beginning.[6]


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State help and self- help, in this context, became the two

focal points of the principled discussion on the subject of

the welfare state. Herbert Spencers liberalism, anapotheosis of self help, as a deductive system, had deeper

implications for welfare state activity. The notion that

Spencer was opposed to welfare state is a false one. His

doctrine of non- intervention and positivistic connotation,

prima facie inconsistent with laissez- faire, but consistent

with the view of state help as complimentary to self-

help.[7]

In economics, laissez-fairedescribes an environment in

which transactions between private parties are free from

state intervention, including restrictive regulations, taxes,

tariffs and enforced monopolies.[8]

The phrase is French and literally means "let do", but it

broadly implies "let it be", or "leave it alone."

The problem of the period was to search some criteria for

judging the compatibility, or otherwise, of the various

schemes of state welfare, vis a vis the idea of self help. The

problem of the period was to search some criteria for

judging the compatibility, or otherwise, of the variousschemes of state welfare, Vis a Vis the idea of self help.[9]

The process of laying the foundations of the concept of the

welfare state, the British political system acquired a

remarkable capacity of preserving its liberal identity against

the alien ideas of French and German socialism and
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Bismarckian model of the welfare state. British resistance

to utopian ideals and adaptation to new challenges and

responsibility was phenomenal. Political leaders of all hues

and complexions were falling prey to democratic

compulsions and were redefining their ideals. In relation tomatters affecting the labour and the poor, they were

abandoning their pitched positions in response to

pragmatism. Transport, banking, agriculture, industry,

trade; in a word, a large segment of economy, were subject

to regulation.[10]

Although there never was at any time a laissez- faire state,

as the existence of Elizabeth Poor Law and factorylegislation indicate, it is true that the era of collectivism-

a mistaken term for regulatory capitalism- started in the

1870s whose first lasting effect could be seen in an

increased legislative activity at the national level in the last

decade of the last century. By the time Great War

intervened, the statutes had covered many areas of social

reform and the pattern of change had set in, more

spectacularly, by the peoples budget, a landmark in the

march towards the welfare state.[11]

The seeds of the concept lay in the problem of poverty. Its

incidence and range assumed the form of the recurring

Condition of England Question, which called for empirical

investigation and verification. The basic element in the

growth of the concept of the welfare state, however, was the

two-fold realization of, one, the inadequacy of private

charity, philanthropy and the poor law to meet the pressingdemands of the poor who had acquired the new voting

power; and two, the increasing capacity of the public

exchequer to bear welfares burdens. The state helped, to the

extent it was practicable, both in the formulation and

solution of the felt and publicized problems of want,


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disease, ignorance, squalor and misery, in the backdrop of

the widespread fear of an impending revolution, which

added urgency to efforts for solving these problems.[12]

The interaction of empiricism and ideology- conservative,liberal and socialist- predicated the concept of the welfare

state, embodying a consensus on a wide spectrum of socio-

economic policies. The development had been distinctive in

several ways. It occurred in a free society where men

projected their interests and ideas into the arena of conflict

and where governments tended to take decisions by

discussions and empirical investigation of problems. The

welfare state evolved in response to the peculiar conditionsof a maturing economy, laissez- faire attitude and traditionsof enlightened self- interest.[13]

DIRECTIVE PRINCIPLE OF STATE POLICY

AND WELFARE STATE

The Directive Principles of State Policy is guidelines to the

central and state governments of India, to be kept in mind

while framing laws and policies. They are enumerated in

part iv of the constitution of India. i.e. directive principles

of state policy. They are the instruments of instructions in

the governance of the country. The directive principles laydown certain economic & social policies to be pursued by

the various governments in India. They are classified as

social & economic charter, social security charter&community welfare charter.[14]
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These provisions, contained in Part IV o

theConstitutionof India, are not enforceable by any court,

but the principles laid down therein are considered

fundamental in the governance of the country, making it the

duty of the State to apply these principles in making laws toestablish a just society in the country. The principles have

been inspired by the Constitution of Ireland"

href="http://en.wikipedia.org/wiki/Constitution_of_Ireland

#Directive_Principles_of_Social_Policy">Directive

Principles given in theConstitutionof Ireland and also by

the principles ofGandhism; and relate tosocial

justice,economic welfare,foreign policy, and legal and

administrative matters.[15]

It is by enacting directive principles of state policy in part

IV of the constitution that we endeavored to create a

welfare state.[16]

In a sense the directive principles of state policy epitomize

the ideals, the aspirations, the sentiments, the precepts, and

the goals of our entire freedom movement. In another sense,

they represent a compromise between the ideals and reality.In the initial stages of the constitution making there was a

strong current of opinion to make the directive principles as

much justifiable as the fundamental rights. But it dawned

on the constituent assembly that it would not be practicable

to make the positive rights justifiable. Thus ultimately the

non- justifiable directive principles were enacted in part IV

of the constitution. T.T.Krishnamachari called the non-

justifiable directive principle as a veritable dustbin ofsentiment sufficiently resilient to permit any individual ofthis house to ride his hobby- horse into it.[17]

Socialist ideals and percepts of national movement found

expression in a number of articles.Article39 embodies the
http://www.legalserviceindia.com/constitution/const_home.htmhttp://www.legalserviceindia.com/constitution/const_home.htmhttp://www.legalserviceindia.com/constitution/const_home.htmhttp://www.legalserviceindia.com/constitution/const_home.htmhttp://www.legalserviceindia.com/constitution/const_home.htmhttp://www.legalserviceindia.com/constitution/const_home.htmhttp://www.legalserviceindia.com/constitution/const_home.htmhttp://www.legalserviceindia.com/constitution/const_home.htmhttp://en.wikipedia.org/wiki/Gandhismhttp://en.wikipedia.org/wiki/Gandhismhttp://en.wikipedia.org/wiki/Gandhismhttp://en.wikipedia.org/wiki/Social_justicehttp://en.wikipedia.org/wiki/Social_justicehttp://en.wikipedia.org/wiki/Social_justicehttp://en.wikipedia.org/wiki/Social_justicehttp://en.wikipedia.org/wiki/Welfare_economicshttp://en.wikipedia.org/wiki/Welfare_economicshttp://en.wikipedia.org/wiki/Welfare_economicshttp://en.wikipedia.org/wiki/Foreign_policyhttp://en.wikipedia.org/wiki/Foreign_policyhttp://en.wikipedia.org/wiki/Foreign_policyhttp://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn15http://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn15http://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn15http://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn16http://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn16http://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn16http://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn17http://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn17http://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn17http://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalserviceindia.com/articles/articles.htmlhttp://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn17http://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn16http://www.legalservicesindia.com/article/article/concept-of-welfare-state-and-its-relevance-in-indian-scenario-507-1.html#_ftn15http://en.wikipedia.org/wiki/Foreign_policyhttp://en.wikipedia.org/wiki/Welfare_economicshttp://en.wikipedia.org/wiki/Social_justicehttp://en.wikipedia.org/wiki/Social_justicehttp://en.wikipedia.org/wiki/Gandhismhttp://www.legalserviceindia.com/constitution/const_home.htmhttp://www.legalserviceindia.com/constitution/const_home.htmhttp://www.legalserviceindia.com/constitution/const_home.htm


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percepts of national movement thus: 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. The socialist ideals of thenational movement and the national goals are embodied in

article 39 which runs:

The state shall, in particular, direct its policy towards

securing:-

i. That the citizens, men and women equally, have theright to an adequate means to livelihood;

ii. That the ownership and control of the material

resources of the community are so distributed as best

to sub serve the common good;

iii. That the operation of the economic system does not

result in the concentration of wealth and means of

production to the common detriment.

iv. That there is equal pay for equal work for both men

and women;

v. That the health and strength of workers, men and

women, and the tender age of children are not abused

and that citizens are not forced by economic necessity

to enter avocations unsuited by their age or strength;

and

vi. Those children are given opportunities and facilities

to develop in a healthy manner and in conditions of

freedom and dignity and childhood and youth are

protected against exploitation and against moral

abandonment.[18]
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ECONOMIC AND SOCIAL RIGHT

The constituent assembly finding it difficult to placecertain economic and social rights in the list of

fundamental rights placed them in the category of

directive principles. In this way the following rightsfound a place among the directive principles:

i. Right to adequate means of livelihood: article39(a);

ii. Right against economic exploitation: article39(b);

iii. Right of both sexes to equal pay for equal work:article 39 (d);

iv. Right to work;

v. Right to leisure and rest: article 43;

vi. Right to public assistance in case ounemployment, old age or sickness: article 42;

vii. Right to education: article 41;

viii. Right to just and humane conditions of work:

article 42;

ix. Right to maternity relief: article 42; and

x. Right to compulsory and free education of

children: article 45.[19]
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THE MANEKA GANDHI CASE AND

THEREAFTER

Simultaneously, the judiciary took upon itself the task of

infusing into the constitutional provisions the spirit of socialjustice. This it did in a series of cases of whichManeka

Gandhi v. Union of India was a landmark. The case

involved the refusal by the government to grant a passport

to the petitioner, which thus restrained her liberty to

travel. In answering the question whether this denial could

be sustained without a predecisional hearing, the court

proceeded to explain the scope and content of the right to

life and liberty. In a departure from the earlier view, thecourt asserted the doctrine of substantive due process as

integral to the chapter on fundamental rights and emanating

from a collective understanding of the scheme underlying

articles 14 (the right to equality), 19 (the freedoms) and 21

(the right to life). The power the court has to strike down

legislation was thus broadened to include critical

examination of the substantive due process element in

statutes.[20]

Once the court took a broader view of the scope and content

of the fundamental right to life and liberty, there was no

looking back. Article21 was interpreted to include a

bundle of other incidental and integral rights, many of themin the nature of ESC rights.

In Francis Coralie Mullin the court declared:

The right to life includes the right to live with human

dignity and all that goes with it, namely, the bare

necessaries of life such as adequate nutrition, clothing and

shelter and facilities for reading, writing and expressing

oneself in diverse forms, freely moving about and mixing
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and commingling with fellow human beings. The

magnitude and components of this right would depend upon

the extent of economic development of the country, but it

must, in any view of the matter, include the bare necessities

of life and also the right to carry on such functions andactivities as constitute the bare minimum expression of the

human self.[21]

RIGHT TO WORK

Article41 of theConstitutionprovides that the State shall

within the limits of its economic capacity and development,make effective provision for securing the right to work, to

education and to public assistance in cases o

unemployment, old age, sickness and disablement, and in

other cases of undeserved want.Article38 states that the

state shall strive to promote the welfare of the people and

article 43 states it shall endeavor to secure a living wage

and a decent standard of life to all workers. One of the

contexts in which the problem of enforceability of such aright was posed before the Supreme Court was of large-

scale abolition of posts of village officers in the State of

Tamil Nadu in India. In negating the contention that such

an abolition of posts would fall foul of the DPSP, the courtsaid:[22]

It is no doubt true thatArticle38 andArticle43 o

theConstitutioninsist that the State should endeavor to find

sufficient work for the people so that they may put their

capacity to work into economic use and earn a fairly good

living. But these articles do not mean that everybody

should be provided with a job in the civil service of the

State and if a person is provided with one he should not be
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asked to leave it even for a just cause. If it were not so,

there would be justification for a small percentage of the

population being in Government service and in receipt of

regular income and a large majority of them remaining

outside with no guaranteed means of living. It wouldcertainly be an ideal state of affairs if work could be found

for all the able-bodied men and women and everybody is

guaranteed the right to participate in the production o

national wealth and to enjoy the fruits thereof. But we are

today far away from that goal. The question whether a

person who ceases to be a government servant according to

law should be rehabilitated by being given an alternative

employment is, as the law stands today, a matter of policyon which the court has no voice.[23]

But the court has since then felt freer to interfere even in

areas which would have been considered to be in the

domain of the policy of the executive. Where the issue was

of regularizing the services of a large number of casual

(nonpermanent) workers in the posts and telegraphs

department of the government, the court has not hesitated to

invoke the DPSP to direct such regularization. The

explanation was:

Even though the above directive principle may not be

enforceable as such by virtue ofArticle37 o

theConstitutionof India, it may be relied upon by the

petitioners to show that in the instant case they have been

subjected to hostile discrimination. It is urged that the State

cannot deny at least the minimum pay in the pay scales ofregularly employed workmen even though the Government

may not be compelled to extend all the benefits enjoyed by

regularly recruited employees. We are of the view that such

denial amounts to exploitation of labor. The Government

cannot take advantage of its dominant position, and compel
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any worker to work even as a casual laborer on starvation

wages. It may be that the casual laborer has agreed to work

on such low wages. That he has done because he has no

other choice. It is poverty that has driven him to that

state. The Government should be a model employer. Weare of the view that on the facts and in the circumstances of

this case the classification of employees into regularly

recruited employees and casual employees for the purpose

of paying less than the minimum pay payable to employees

in the corresponding regular cadres particularly in the

lowest rungs of the department where the pay scales are the

lowest is not tenable . . . It is true that all these rights cannot

be extended simultaneously. But they do indicate thesocialist goal. The degree of achievement in this direction

depends upon the economic resources, willingness of the

people to produce and more than all the existence of

industrial peace throughout the country. Of those rights the

question of security of work is of utmost importance.[24]

InBandhua Mukti Morcha v. Union of India, (1984) 3 SCC

161, a PIL by an NGO highlighted the deplorable condition

of bonded laborers in a quarry in Haryana, not very far from

the Supreme Court. A host of protective and welfare-

oriented labor legislation, including the Bonded Labour

(Abolition) Act and the Minimum Wages Act, were being

observed in the breach. In giving extensive directions to

the state government to enable it to discharge its

constitutional obligation towards the bonded laborers, the

court said:[25]

The right to live with human dignity enshrined inArticle21

derives its life breath from the Directive Principles of State

Policy and particularly clauses (e) and (f) ofArticle39

andArticle41 and 42 and at the least, therefore, it must

include protection of the health and strength of workers,
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men and women, and of the tender age of children against

abuse, opportunities and facilities for children to develop in

a healthy manner and in conditions of freedom and dignity,

educational facilities, just and humane conditions of work

and maternity relief. These are the minimum requirementswhich must exist in order to enable a person to live with

human dignity and no State has the right to take any action

which will deprive a person of the enjoyment of these basic

essentials. Since the Directive Principles of State Policy

contained in clauses (e) and (f) ofArticle39,Articles 41

and 42 are not enforceable in a court of law, it may not be

possible to compel the State through the judicial process to

make provision by statutory enactment or executive fiat forensuring these basic essentials which go to make up a life

of human dignity, but where legislation is already enacted

by the State providing these basic requirements to the

workmen and thus investing their right to live with basic

human dignity, with concrete reality and content, the State

can certainly be obligated to ensure observance of such

legislation, for inaction on the part of the State in securing

implementation of such legislation would amount to denialof the right to live with human dignity enshrined

inArticle21, more so in the context ofArticle256 which

provides that the executive power of every State shall be so

exercised as to ensure compliance with the laws made by

Parliament and any existing laws which apply in thatState.[26]

Thus the court converted what seemed a non-justifiable

issue into a justifiable one by invoking the wide sweep othe enforceable article 21. More recently, the court

performed a similar exercise when, in the context of articles

21 and 42, it evolved legally binding guidelines to deal with

the problems of sexual harassment of women at the work

place.[27]
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The right of workmen to be heard at the stage of winding up

of a company was a contentious issue. In a bench of five

judges that heard the case the judges that constituted the

majority that upheld the right were three. The justification

for the right was traced to the newly inserted article 43-A,which asked the state to take suitable steps to secure

participation of workers in management. The court

observed:

It is therefore idle to contend 32 years after coming into

force of theConstitutionand particularly after the

introduction of article 43-A in theConstitutionthat the

workers should have no voice in the determination of thequestion whether the enterprises should continue to run or

be shut down under an order of the court. It would indeed

be strange that the workers who have contributed to the

building of the enterprise as a centre of economic power

should have no right to be heard when it is sought to

demolish that centre of economic power.[28]

RIGHT TO SHELTER

Unlike certain other ESC rights, the right to shelter, which

forms part of the right to an adequate standard of living

under article 11 of the ICESCR, finds no corresponding

expression in the DPSP. This right has been seen as

forming part of article 21 itself. The court has gone as far

as to say, The right to life . . . would take within its sweep

the right to food . . . and a reasonable accommodation to

live in.[29]However, given that these observations were

not made in a petition by a homeless person seeking shelter,

it is doubtful that this declaration would be in the nature of

a positive right that could be said to be enforceable. On the
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other hand, in certain other contexts with regard to housing

for the poor, the court has actually refused to recognize any

such absolute right.[30]

In Olga Tellis v. Bombay Municipal Corporation, (1985) 3SCC 545 the court held that the right to life included the

right to livelihood. The petitioners contended that since

they would be deprived of their livelihood if they were

evicted from their slum and pavement dwellings, their evic-

tion would be tantamount to deprivation of their life and

hence be unconstitutional. The court, however, was not

prepared to go that far. It denied that contention, saying:

No one has the right to make use of a public property for a

private purpose without requisite authorization and,

therefore, it is erroneous to contend that pavement dwellers

have the right to encroach upon pavements by constructing

dwellings thereon . . . If a person puts up a dwelling on the

pavement, whatever may be the economic compulsions

behind such an act, his use of the pavement would become

unauthorized.[31]

Later benches of the Supreme Court have followed

the Olga Tellis dictum with approval. InMunicipal

Corporation of Delhi v. Gurnam Kaur,(1989) 1 SCC 101

the court held that the Municipal Corporation of Delhi had

no legal obligation to provide pavement squatters

alternative shops for rehabilitation as the squatters had no

legal enforceable right. In Sodan Singh v. NDMC, (1989) 4

SCC 155 a constitution bench of the Supreme Courtreiterated that the question whether there can at all be a

fundamental right of a citizen to occupy a particular place

on the pavement where he can squat and engage in trade

must be answered in the negative. These cases fail to

account for socioeconomic compulsions that give rise to


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pavement dwelling and restrict their examination of the

problem from a purely statutory point of view rather than

the human rights perspective.[32]

Fortunately, a different note has been struck in a recentdecision of the court. InAhmedabad Municipal

Corporation v. Nawab Khan Gulab Khan,(1997) 11 SCC

123 in the context of eviction of encroachers in a busy

locality of Ahmedabad city, the court said:

Due to want of facilities and opportunities, the right to

residence and settlement is an illusion to the rural and urban

poor. Articles 38, 39 and 46 mandate the State, as its

economic policy, to provide socio-economic justice to

minimize inequalities in income and in opportunities and

status. It positively charges the State to distribute its

largesse to the weaker sections of the society envisaged

inArticle46 to make socio-economic justice a reality,

meaningful and fruitful so as to make life worth living with

dignity of person and equality of status and to constantly

improve excellence. Though no person has a right to

encroach and erect structures or otherwise on footpaths,pavements or public streets or any other place reserved or

earmarked for a public purpose, the State has the

constitutional duty to provide adequate facilities and

opportunities by distributing its wealth and resources for

settlement of life and erection of shelter over their heads tomake the right to life meaningful.[33]

RIGHT TO HEALTH

The right to health has been perhaps the least difficult area

for the court in terms of justifiability, but not in terms of

enforceability. Article47 of DPSP provides for the duty of
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the state to improve public health. However, the court has

always recognized the right to health as being an integral

part of the right to life.The principle got tested in the case o

an agricultural laborer whose condition, after a fall from a

running train, worsened considerably when as many asseven government hospitals in Calcutta refused to admit

him as they did not have beds vacant. The Supreme Court

did not stop at declaring the right to health to be a

fundamental right and at enforcing that right of the laborer

by asking the Government of West Bengal to pay him

compensation for the loss suffered. It directed the

government to formulate a blue print for primary health

care with particular reference to treatment of patients duringan emergency.[34]

InConsumerEducation and Research Centre v. Union o

India (1995) 3 SCC 42 the court, in a PIL, tackled the

problem of the health of workers in the asbestos

industry. Noticing that long years of exposure to the

harmful chemical could result in debilitating asbestosis, the

court mandated compulsory health insurance for every

worker as enforcement of the workers fundamental right to

health. It is again in PIL that the court has had occasion to

examine the quality of drugs and medicines being marketed

in the country and even ask that some of them bebanned.[35]

A note of caution was struck when government employees

protested against the reduction of their entitlements to

medical care. The court said:

No State or country can have unlimited resources to spend

on any of its projects. That is why it only approves its

projects to the extent it is feasible. The same holds good

for providing medical facilities to its citizens including its
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employees. Provision on facilities cannot be unlimited. It

has to be to the extent finances permit. If no scale or rate is

fixed then in case private clinics or hospitals increase their

rate to exorbitant scales, the State would be bound to

reimburse the same. The principle of fixation of rate andscale under the new policy is justified and cannot be held to

be violative of article 21 or article 47 of

theConstitution.[36]

RIGHT TO EDUCATION

Article45 of the DPSP, which corresponds to article 13(1)of the ICESCR, states, The State shall endeavor to

provide, within a period of ten years from the

commencement of this Constitution, for free and

compulsory education for all children until they complete

the age of fourteen years. Thus, while the right of a child

not to be employed in hazardous industries was, by virtue

of article 24, recognized to be a fundamental right, the

childs right to education was put into the DPSP in part IVand deferred for a period of ten years.[37]

The question whether the right to education was a

fundamental right and enforceable as such was answered by

the Supreme Court in the affirmative inMohini Jain v. State

of Karnataka (1992) 3 SCC 666. The correctness of this

decision was examined by a larger bench of five judges

in Unnikrishnan J.P. v. State of Andhra Pradesh, (1993) 1

SCC 645.The occasion was the challenge, by private

medical and engineering colleges, to state legislation

regulating the charging of capitation fees from students

seeking admission. The college management was seeking

enforcement of their right to business. The court expressly
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denied this claim and proceeded to examine the nature of

the right to education. The court refused to accept the

nonenforceablity of the DPSP. It asked:

It is noteworthy that among the several articles in Part IV,onlyArticle45 speaks of a time-limit; no other article

does. Has it no significance? Is it a mere pious wish, even

after 44 years of theConstitution? Can the State flout the

said direction even after 44 years on the ground that the

article merely calls upon it to endeavor to provide the same

and on the further ground that the said article is not

enforceable by virtue of the declaration inArticle37. Does

not the passage of 44 yearsmore than four times theperiod stipulated inArticle45convert the obligation

created by the article into an enforceable right? In this

context, we feel constrained to say that allocation o

available funds to different sectors of education in India

discloses an inversion of priorities indicated by

theConstitution. TheConstitutioncontemplated a crash

programme being undertaken by the State to achieve the

goal set out inArticle45. It is relevant to notice

thatArticle45 does not speak of the limits of its economic

capacity and development as doesArticle41, which inter

alia speaks of right to education. What has actually

happened is more money is spent and more attention is

directed to higher education than toand at the cost of

primary education. (By primary education, we mean the

education which a normal child receives by the time he

completes 14 years of age.) Neglected more so are the rural

sectors, and the weaker sections of the society referred toinArticle46. We clarify, we are not seeking to lay down

the priorities for the Governmentwe are only

emphasizing the constitutional policy as disclosed

byArticles 45, 46 and 41. Surely the wisdom of these

constitutional provisions is beyond question.[38]
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The court then proceeded to examine how this right would

be enforceable and to what extent. It clarified the issue

thus:

The right to education further means that a citizen has aright to call upon the State to provide educational facilities

to him within the limits of its economic capacity and

development. By saying so, we are not

transferringArticle41 from Part IV to Part IIIwe are

merely relying uponArticle41 to illustrate the content of

the right to education flowing fromArticle21. We cannot

believe that any State would say that it need not provide

education to its people even within the limits of itseconomic capacity and development. It goes without

saying that the limits of economic capacity are, ordinarily

speaking, matters within the subjective satisfaction of the

State.[39]

More caution followed. The courts apprehension clearly

was that recognition of such a right might open the flood

gates for other claims. It clarified:

We must hasten to add that just because we have relied

upon some of the directive principles to locate the

parameters of the right to education implicit inArticle21, it

does not follow automatically that each and every

obligation referred to in Part IV gets automatically included

within the purview ofArticle21. We have held the right to

education to be implicit in the right to life because of its

inherent fundamental importance. As a matter of fact, wehave referred toArticles 41, 45 and 46 merely to determine

the parameters of the said right.[40]

In fact, the court had broken new ground in the matter of

justifiability and enforceability of the DPSP. The decision

in Unnikrishnan has been applied by the court in
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formulating broad parameters for compliance by the

government in the matter of eradication of child labor. This

it did in a PIL where it said:

Now, strictly speaking a strong case exists to invoke the aidofArticle41 of the Constitution regarding the right to work

and to give meaning to what has been provided

inArticle47 relating to raising of standard of living of the

population, andArticles 39 (e) and (f) as to non-abuse o

tender age of children and giving opportunities and

facilities to them to develop in a healthy manner, for asking

the State to see that an adult member of the family, whose

child is in employment in a factory or a mine or in otherhazardous work, gets a job anywhere, in lieu of the

child. This would also see the fulfillment of the wish

contained inArticle41 after about half a century of its being

in the paramount parchment, like primary education desired

byArticle45, having been given the status of fundamental

right by the decision in Unnikrishnan. We are, however,

not asking the State at this stage to ensure alternative

employment in every case covered byArticle24,

asArticle41 speaks about right to work within the limits

of the economic capacity and development of the

State. The very large number of child labor in the

aforesaid occupations would require giving of job to a very

large number of adults, if we were to ask the appropriate

Government to assure alternative employment in every

case, which would strain the resources of the State, in case

it would not have been able to secure job for an adult in a

private sector establishment or, for that matter, in a publicsector organization. We are not issuing any direction to do

so presently. Instead, we leave the matter to be sorted out

by the appropriate Government. In those cases where it

would not be possible to provide job as above mentioned,

the appropriate Government would, as its
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contribution/grant, deposit in the aforesaid Fund a sum of

Rs.5000/- for each child employed in a factory or mine or in

any other hazardous employment.[41]

The court, while recognizing the importance of declaringthe childs negative right against exploitation and positive

right to education, chose a pragmatic approach when it

came to enforceability. Earlier the court would have

shrugged off the whole issue as not being within its

domain. That has now changed as is clear from the recenttrend of cases.[42]

PROTECTION TO MINORITIES AND WEAKER

SECTION OF SCOIETY

Needless to say protection to minorities and weaker section

of society has been the main plank on which we have tried

to usher in the economic revolution. Some of the rights of

minorities have found a place of pride among the

fundamental rights.Article43 directs the state to secure toall workers, by legislation, economic organization, or in any

other way, a living wage; conditions of work ensuring a

decent standard of life, and the full enjoyment of leisure and

social and cultural opportunities.Article47 imposes as a

primary duty to raise the level of nutrition and the standard

of living of its people. On the basis of these articles some of

the social and labour legislation has been

enacted.Article39A provides for equitable justice and free

legal aid by suitable legislation.Article43A stipulates the

participation of workers in the management of

industries.Article46 specifically lays down that the state

shall promote with special care the educational and

economic interest of the weaker sections of the people, and,
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in particular, of the schedule castes and the schedules tribes,

and shall protect them from social injustice and all forms of

exploitations.[43]

GANDHIAN IDELAS OF PANCHAYTI RAJ;

PROMOTION OF COTTAGE INDUSTRY; AND

PROHIBITION

The promotion of the cottage industry and establishment of

panchayti raj has been two main ideals of Gandhian

philosophy. Speaking from the floor of the constituent

assembly, Ambedkar observed, that there was aconsiderable feeling in the house in favor of governmental

encouragement for the cottage industry. Similarly, there

was a considerable opinion to enact in the con situation

decentralization and the panchayti raj. But with emphasize

on industrialization and a highly centralist federal system

that was adopted, there was no alternative but to place these

ideals among the directive principles. In view of this, latter

part of article 43 lays down that the state shall endeavor topromote cottage industries on an individual or co- operative

basis in rural areas. article 40 enjoins the state to take steps

to establish village panchayats.[44]

Article47 enacts the national policy of prohibition and

enjoins the state to bring about prohibition of the

consumption, except for medicacinal purposes, in

intoxicating drinks and of drugs which are injurious to

health. This directive has been sought to be implemented

from the beginning.
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HINDU IDEALS OF COW- PROTECTION, AND

IMPROVEMENT OF AGRICULTURE AND

ANIMAL HUSBANDRY

In a predominantly agricultural Hindu society of the ancient

times emphasis on the protection of the cow, and other

cattle connected with the agriculture was natural. In the

modern India, too, a national policy against slaughter of

certain category of cattle is needed. The question is not

merely of the Hindus reverence towards cow, though

religious aspect of cow protection cannot be ignored, but

protection of milk cattle in a country, which is suffering

from acute shortage of milk, is an imperative

need.Article48 deals with this and allied matters. It enjoins

on the state to organize agriculture and animal husbandry

on modern and scientific lines and in particular, to take

steps for preserving and improving the breeds, and

prohibiting the slaughter of cows and calves and other

milch and draught cattle.[45]

NATIONAL INTEGRATION AND PROMOTION

OF INTERNATIONAL PEACE

Article44 stipulates for a uniform civil code. This article

caused considerable difficulty in the constituent assembly;

it was opposed on the one side by an orthodox section of

hindus and, on the other hand, by the minorities whothought that with a uniform civil code they would lose their

identity. This article has not been implemented because of

consistent opposition by the minorities. Only certain

portions of Hindu law be reformed and codified.[46]
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Article51 lays down that the state shall endeavor to

promote international peace and security, to maintain just

and honorable relations between nations and to foster

respect for international law and treaties and to encourage

settlement of international disputes by arbitration.[47]

MISCELLANEOUS DIRECTIVES

Article50 enjoins that the judiciary shall be separated from

the executive. To a great extent this directive has beenimplemented.Article49 provides for the protection o

monuments and places and objects of national

importance.Article48A for the protection and

improvement of environment and safeguard of forests and

wildlife.[48]

IMPLEMENTATIONS

The State has made many efforts to implement the Directive

Principles. The Programme of Universalisation of

Elementary Education and thefive year planshas been

accorded the highest priority in order to provide

freeeducationto all children up to the age of 14 years. The

86th constitutional amendment of 2002 inserted a new

article,Article21-A, into theConstitution, that seeks to

provide free and compulsory education to all children aged

6 to 14 years. Welfare schemes for the weaker sections are

being implemented both by the Central and state
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