MINERVA MILLS LTD. & ORS versus UNION OF INDIA & ORS.

I wholly endorse this view set forth by J-:Iegde, J. and express my full concurrence with it.

p. 327, margin A

I may also point out that simply because the Directive Principles do not create rights enforceable in a court of law, it does not follow that they do not create any obligations on the State. We are so .much obsessed by the Hohfeldian Classification that we tend to think of rights, liberties, powers and privileses as being invariably linked with the corresponding concept of duty, no right, liability and immunity. We find it difficult to conceive of obligations or duties which do not create corresponding rights in others. But the Hohfeldian concept does not provide a satisfactory analysis in all kinds of jural relationships and breaks down in some cases where it is not possible to say that· the duty in one creates an enforceable right in another. There may be a rule which imposes an obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding enforceable right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. The obligatio.'l. exists prior to and independent of the mechanism of enforcement. A rule imposing an obligation or duty iwould not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of the Constitution and even rules of International Law wuuld no longer be liable to be regarded as rules of law. This view is clearly supported by the opinion of Professor A. L. Goodhart who, while commenting upon this point. says :

p. 327, margin B

"I have always argued that if a principle is recognised as binding on the legislature, then it can be correctly described as a legal rule even if there -is no court that can enforce it. Thus most of Dicey's book on the British Constitution is concerned with certain general principles which Parliament recognises ns

p. 327, margin F

binding on it." It is therefore, to my mind, clear beyond doubt that merely because the Directive Principles are not enforceable in a court of law: it does not mean that they cannot create obligations or duties binding on the State. The crucial test which has to be applied is whether the Directive Principles impose any obligations or duties on the' State ; if they do, the State would be bound by a constitutional mandate to carryout such obligations or duties, even though no corresponding right is created in any one which can be enforced in a court of law.

pp. 327–328, margin F

Now on this question Article 37 is emphatic and makes the point in no uncertain terms. It says that th~ Directive Principles are "nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws." There could not have been more explicit language used by the Constitution makers to make the Difective Principles binding on the State and there can be no doubt that the . State is under a constitutional obligation to carry out this mandate contained in Article 37. In fact, non-compliance with the Directive Principles would be unconstitutional on the part, of the State and it would not only constitute a breach of faith with the people who imp<ised this constitutional obligation on the State but it would also render a vital part of the Constitution meaningless ·and futile. Now it is significant to note that for the purpose of the Directive Principles, the "State" has the same meaning as given to it under Article 13 for the purpose of the Fundamental Rights. This would mean that the same State which is injuncted from taking any action in infringement of the Fundamental Rights is told in no uncertain terms that it must regard the Directive Principles as fundamental in the governance of the country and .is positively mandated to apply them in making laws. This gives rise to a paradoxical situation and its implications are for reaching. The State is on the one hand, prohibited by the constitutional injunction in Article 13 from making any law or taking any executive action which would infringe any Fundamental Right and at the same time it is directed by the constitutional mandate in Article 37 to apply the Directive Principles in the governance of the country and to make laws for giving effect to the Directive Principles. Both are constitutional obligations of the State and the question· is, as to which must prevail when there is a conflict between the two. 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 pedesteal 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 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 ~II 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,

pp. 328–329, margin A

namely, Pathumma v. State of Kerala{ where Fazal Ali, J. summa· • rised 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(2), 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. · It may also be pointed out that in a recent decision given by this Court in M / s Kasturi Lal Lakshmi Reddy elc: v. The State of Jammu & Kashmir & Atir.(3), it has been held that every executive action of the Government, whether in pursuance of law or otherwise, must be reasonable and informed with public interest and the yardstick for determining both reasonableness and public interest is to be found in the Directive F'rinciples and therefore, if any executive action is taken by the Government for giving effect to a Directive Principle, it would prima facie be reasonable and in public interest. It will, therefore, be seen that if a law is enacted for the purpose of giving effect to a Directive Principle and it imposes -a restriction on a Fundamental Right, it would be difficult to condemn such restriction as unreasonable or not in public interest. So also · where a law is enacted for giving effect to a Directive Principle in .furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the Jaw, but it would almost always conform to the principle <Jf equality before the law in its total , magnitude and dimension, because the equality clause in the Constitution does not speak of more formal equality before the law but embodies the concept of real and (!) [1978] 2 SCR 537. (2) [1952] SCR 889. (3) [1980] 3 SCR 1338.

p. 329, margin C

substantive equality which strikes' at inequalities arising on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice. The dynamic principle of egalitarianism fertilises the concept of social and economic justice ; it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle. If, therefore, there is a law enacted by the legislature which is really and genuinely for giving effect to a Directive Principle with a view to promoting social and economic justice, it would be difficult to say that such law violates the principle of egalitarianism and iS not in accord with the principle of equality before the Jaw as understood not in its strict and formalistic sense, but in its dynamic and activist magnitude. Jn the circumstances, the Court would not be unjustified in making the presumption that a law enacted really and genuinely for giving effect to a Directive Principle in furtherance of the cause of social and economic justice/ would not infringe any Fundamental Right· under Article 14 or 19. Mr. C. H. Alexandrowick, an 'eminent jurist, in fact, says: "Legislati'on implementing. Part IV must be regarded as permitted restrictions gn Part III". Dr. Ambedkar, one of the chief architects of the Constitution, also made it dear while intervening during the discussion on the Constitution (First Amendment) Bill in the Lok Sabha on 18th May 1951 that iii his view "So far as the doctrine of implied powers is concerned, there is ample authority in the Constitution itself, namely, in the Directive Principles . to permit Parliament to make legislation, although it will not be specifically covered by the provisions contained in the ~Part on Fundamental Rights". If this be the correct interpretation of the constitutional provisions, as I think it is, the amended Article :n C does no more than codify the existing position under the constitutional scheme by providing immunity to a law enacted really and genuinely for giving effect to a Directive Principle, so that needlessly futile and timeconsuming controversy whether such law contravenes Article 14 or 19 is eliminated. The amended Article 31C cannot in the circumstances be regarded as violative of the basic structure of the Constitution.

p. 330, margin A

But I may in the alternative, for the purpose of argument, as-5ume that there may be a few cases where it may be found by the court, perhaps on ·a narrow and doctrinaire view of the scope and applicability of a Fundamental Right as in Karimbil Kunhikoman v. State of Kerala(I) where a law awarding compensation at a lower rate to holders of larger blocks of land and at higher rate to holders of smaller blocks of land was struck down by this Court as violative of the equality clause, that a law enacted really and genuinely for giving effect to a Directive Principle is violative of a Fundamental Right under Article 14 or 19. Would such a law enacted in discharge· of the (1) [1962] (Supp.) 1 SCR 319. constitutional obligation laid upon the State under Article 37 be invalid, because it infringes a Fundamental Right ? If the court takes the view that it is invalid, would it not be placing Fundamental Rights above Directive Principles, a position not supported at all by the · history of their enactment as also by the constitutional scheme already discussed by me. The two constitutional obligations,· one in regard to Fundamental Rights and the other in regard to Directive Principles, are of equal strength and merit and there is no reason why, in case 'Of conflict, the former should be given precedence over the· latter. I have already pointed out that whether· or not a particular mandate of the Constitution is justiciable has no bearing at all on its importance and significance and justiciability by itself can never be a ground for placing one constitutional mandate on a higher pedestal than the other. The effect of giving greater weightage to the constitutional mandate ' in regard to Fundamental Rights would be to relegate the Directive Principles to a secondary position and emasculate the constitutional command that the Directive Principles shall be fu!1dame11tal in the governance of the country and it shall be the duty of the State to apply them in making laws. It would amount to refusal to give effect to the words "fundamental in the governance of the country" and a constitutional command which has been declared by the Constitution to be fundamental would be rendered non-fondamental. The result wouid bio tb!t a positive mandate •)f the Constitution commanding the State to make a law would be dcfe:itd by a negative constitutional obligation not to encroach upon a Fundamental Right and the law made by the legislature pursuant to a positive consti,tutional command would be delegitimised and declared unconstitutional. This plainly would be contrary to the constitutional scheme because, as already pointed out by me, the Constitution does not accord a higher place. to the constitutional obligation in regard to Fundamental Rights over the constitutional obligation in regard to Directive Principles and doe~ not say that the implementation of the Directive Principles shall or.ly be within the permissible limits laid down in the Chapter on Fundamental Rights. The main thrust of the argument of Mr. Palkhiwala was that by reason of the amendment of Article 31 C the harmony and balance between Fundamental Rights and Directive Principles are disturbed, because Fundamental Rights which had, prior to the amendment, precedence over Directive Principles are now, as. a result of the amendment, made subservient to Directive Principles. Mr. Palkhiwala picturesquely described the position emerging as a result of the amendment by saying that the Constituti~n is now made to stand o.n its head instead of its legs. But in my view the entire premise on which this argument of Mr. Palkhiwala is b,ased is fallacious because it is not correct to say, and I have in the preceding portions of ~his opinion:, given cogent reasons for this view, that prior to the. amendments Fundamental Rights had a superior or higher posjtion in t_he constitutional scheme than Directive Principles and there is accordingly no question at all of any subversion of the constitutional structure by the amendment. There can be no doubt that the intention of the Constitution makers was that the Fundamental Rights should operate within the socio-economic structure or a wider continuum envisaged by the Directive Principles, for then only would the Fundamental Rights become exercisable by all and a proper balance and harmony between Fundamental Rights and Directive Principles secured. The Constitution makers therefore never contemplated that a conflict would arise between the constitutional obligation in regard to Fundapiental Rights and the constitutional mandate illli regard to Directive Principles. But if a conflict does arise between these two · constitutional mandates of equal fundamental character, how is the conflict to be resolved ? The Constitution did not provide any answer because such a situation was not anticipated by the Constitution makers and this problem had therefore to be solved by Parliament and some modus operandi had to be evolved in order to C!iminate the possibility of conflict howsoever remote it might be. The way was shown in no uncertain terms by Jawaharlal Nehru when he said in the Lok Sabha in the course of discussion on the Constitution (First Amendment) Bill:

pp. 330–332, margin F

"The Directive Principles of State Policy represent a dynamic move towards a certain objective. The Fundamental Rights represent something static, to preserve certain rights which exist. Both again are right. But somehow and sometime it might so happen that that dynamic movement and that .static standstill do not quite fit into each other.

p. 332, margin E

The dynamic movement towards a certain objective necessarily means certain changes· taking place: that is the essence of movement. Now it may be that in the process of dynamic movement certain existing relationships are altered, varied or affected. In fact, they are meant to affect those settled relationships and yet if you come back to the Fundamental Rights they are meant to preserve, not indirectly, certain settled relationships. There is a certain conflict in the two approaches, not inherently. because that was not meant, I am quite sure. But there is that slight difficulty and naturally when the courts. of the land have tc> consider these matters they have to lay stress more on the Fundamental Rights than on the Directive Principles. The result is that the whole purpose behind the Constitution, which was meant to be .a dynamic Constitution leading to a certain goal step by step, is somewhat hampered and hindered by the static element being emphasized a little more than the dynamic element ........ . If in the protection of individual liberty you protect also individual or group inequality, then you come into conflict with that Directive Principle which wants, according to your own Constitution, a gradual advance, or let us put it in another way, not so gradual but more rapid ad;vance, whenever possible to a State where there is less and less inequality and more and more equality. If any kind of an appeal to individual liberty and freedom is construed to mean as an appeal to the continuation of the existing inequality, tI,en you get into difficulties. Then you become static, unprogressive and cannot change and you cannot realize the ideal

pp. 332–333, margin F

of an egalitarian society which I hope most of us aim at." Parliament took the vkw that the constitutional obligation in regard to Directive Principles should have precedence over the constitutional obligation in regard to the Fundamental Rights in Articles 14 and 19, because Fundamental Rights though precious and valuable for maintaining the democratic way of life, have absolutely no meaning for the poor, down trodden and economically backward classes of people who unfortunately constitute the bulk of the people of India and the only way in which Fundamental Rights can be made meaningful for them is by implementing the Directive Principles, for the Directive Principles are intended to bring about a socio-economic revolution and to create a new socio-economic order where there will be social and economic justice· for all and every one, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the Fundamental Rights. Parliament therefore amended Article 31C with a view to providing that in case of conflict Directive Principles shall have precedence over the Fundamental Rights in Articles 14 and 19 and the latter shall yield place to the former. . The positive constitutional command to make laws for giving effect to the Directive Principles shall prevail over the negative constitutional obligation not to encroach on the Fundamental Rights embodied in Articles 14 and 19. Parliament in making this amendment was moved by the noble philosophy eloquently expressed in highly inspiring and evocative words. full of passion and· feeling, by Chandrachud, J. (as he then was) in his judgment in Keshavananda Bharati's case at page 991 of the Report. I may quote here what Chandraohud, J. (as he theri was) said on that ,occasion, for it sets out admirably the philosophy which inspired Parliament in enacting the amendment in Article 31 C.' The learned Judge said: ·

p. 333, margin C

"I have stated in the earlier part of my judgment that .the Constitution accords a place of pride to Fundamental Rights and a place of permanence to the Directive Principles. I stand by what I have said. The Preamble of our Constitution recites that the aim of the Constitution is to constitute India jnto a Sovereign Democratic Republic and to secure to "all its citizens". Justice- Social, economic and political-liberty and equality. Fundamental Rights which are conferred and guaranteed by Part III of the Constitution undoubtedly constitute the ark of the Constitution and without them a man's reach will not exceed his grasp. But it cannot be overstressed that, the Directive Principles of State Policy are fundamental in the governance of the country. What is fundamental in the governance of the country cannot surely · be less significant than what is fundamental in the life of an individual. That 011e is justiciable and the other not may show the intrinsic difficulties in making the latter enforceable through legal processes but that distinction does not bear on their relative importance. An equal right of men and women to an adequate means of livelihood ; the right to obtain humane conditions of work ensuring a dec~nt standard of life and full enjoyment of leisure ; and raising the level of health and nutrition are not matters for complian·ce with the Writ of a Court. As I look at the provisions of Parts IJ,l and IV, I feel no doubt that the basic object of conferring freedoms on individuals is the ultimate achievement of the ideals set out in Part IV. A circumspect use of the freedoms gu<iranteed by Part III is bound to subserve the common good but voluntary submission to. restraints is a philosopher's dream. Therefore, article 37 enjoys the State to apply the Directive Principles in making laws. The freedom of a few have them to be abridged in order to ensure the freedom 0f all. It is in this sense that Parts. III and IV, as said by Granville Austin('). together constitute "the conscience of the Constitution". The Nation stands today at the cross-roads of history .and exchanging the time honoured place of the phrase. may I say that the Directive Principles of State Policy 'should not be permitted to become "a mere rope of sand." If the State fails to create conditions in wh ich the Fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish. In order, therefore, to preserve

pp. 333–334, margin H

their freedom, the privileged few must part with a portion of it." This i:s precisely what Parliamenit achieved by amending Article 31C. Parliament made the amendment in Article 3lC because it realised that "if the State fails to create conditions in .which the fu1nidamental freedoms could be enjoyed by all, the freedom of the few will be at (I) The Indian Constitution-Cornerstone of a Nation, Ed. 1966. ;the mercy of the malliY and then all freedoms will vanish" and "in l{)rder, therefore" to preserve their freedom,.' the privileged few must part with a portion. of it.'.' I find it difficult to understand how 1t -can ait all be said that the basic structure of the Constitution is affected when for evolving a modus vivandi for resolving a possible remote •conflict between two constitutional ·mandates of equally fundamental character, Parliament decides by way of amendment of Article 31C that in case of such conflict, the constitutional mandate in regard to Directive Principles shall prevail over the constitutional mandate in Tegard to the Fundamental Rights under Articles. 14 and 19. The amendment in Article 31C far from damaging the basic structure of the Constitution strengthens and re-enforces it by givtnig fundamental importan~ to the rights of the members of the community as against the rights of a few individuals and furthering the objective of the Constitution to build an egalitarian social order where there will be social and economic justice for all, every one including the low visibility areas of humanity in the country will be able to exercise Fundamental Rights and the dignity of the individual and the worth of the human person which are ·cherished values · will not remain merely the exclusive privileges of a few but become a living reality for the ma:ny. Additionally, this question may also be looked at from another point of view so far as the protection against violation of Article 14 is concerned. The principle of egalitarianism, as I said ·before. is an essential eleme:nt of social and economic justice and, therefore, where a law is enacted for giving effect to a Directive Principle with a vie.w to promoting social and economic justice, it would not run counter to the egalitarian, principle and would not therefore be violative of the basic structure, even if it infringes equality before the law in its narrow and formalistic sense. No law which is really and gellllU.inely for giving effect to a Directive Principle can be inconsistent with the egalitarian .principle and therefore. the protection granted to it under the amended Article 31C against violation of Ariicle 14 cannot have the effect of damaging the bac,;ic structure. I do not therefore see how any violation of the basic structure is involved in the amendment of Article 31.C. Jn fact. once we accept the proposition laid down by the majority decision in Keshavananda Bharati's case that the unamended Article 31C was constitutionally valid, it could only be on the basis that it did not damage or destroy the basic structure of the Constitution and moreover in the order made in Waman Rao's case on 9th May, 1980 this Count expressly held that the unamended Article 31C "does not damage any of the ·basic or essential features of the Constitution or its basic structure." .and if that be 1so. it is difficult to appreciate how the amended AJJticle 31 C can be said to be violative ·of the basic structure. If the· exclusion of the Fundamental Rights embodied in Articles 14 and 19' could be Iegiti:mately made for giving effect to the Dire-.;tive Principles. set out in clauses (b) and (c) of Article 39 without affecting the basic: structure. I fail to see why these Fundamental Rights cannot be excluded for giving effec't to the other Directive Principles. If the· constitutional obligation in regard to the Directive Principles set out in clauses (b) anid (c) of Article 39 could be given precedence over the constitutional obligation; in regard to the Fundamental Rights under Articles 14 and 19, there is no reason in principle why such precedence cannot be given to the constitutional obligation in regard' to the other Directive Principles which stand· on the same ~ooting. It would, to my mind, be incongruous to hold <the amended Article 31C invalid when the unamended Ariticle 31C hlis been held to be valid by the majority decision in Keshavananda Bharati's case and by the Order made on 9th May, 1980 in Waman Rao's case.

pp. 334–336, margin G

Mr. Palkhiwala on behalf of the petitioners however contended that there was a vital differe111ce between Article 31 C as it stood prior ' to its amendment and the amended Article 31C, inasmuch as under. the unamended Article 31C only certa1n categories of laws, namely, those enacted for the purpose of giving effect to the Directive Principles set out in clauses (b) and (c) of Article. 39 were protected again~t challenge under Articles 14 and 19, while the position under the amended Article 31C was that practically every law would be· immune from such challenge because it would be 11eferable to one Directiye Principle or the other and the result would be that the Fundamental Rights in A11ticles 14 and _19 would become meaningless and futile and would, for all practical purposes, be dead letter in the Constitution. The effect of giving immunity to laws enacted for the purp::ise of giving effect to any one or more of the Directive Principles would, according to Mr. Palkhiwala, be in reality and substanc_(! to wipe out Articles 14 and 19 from the Constituijon and that would affect the basic structure of the Constitution. Mr. Palkhiwala also urged that the laws which were protected by the amended Article 31 C were laws for giviing effect to the policy of the State towards securing any one or more of the Directtive Principles and every law would be comprehended within this description since it would not be competent to the court to enter into questions of policy and determine whether the policy adopted in a particular law is calculated.to secure any Directive Principle as claimed by the State. The use of the words "law giving effect to the policy of the State", said Mr. Palkhiwala, introduced considerable uncertainty in the yardstick with which •to decide whether a particula11 law falls within the description in the amended Article 31C and widened the scope and applicabiliity of the amended Anticle so as to include almost every law claimed by the St:ate to full wjthin such description. This argumeinJi was presented by Mr. Palkhiwala with great force and pursuasiveness but it does not ·appeal to me and I cannot. accept iit. It is clear from the Language of the amended Article 31 C that the law which is pnotected from challenge under Articles 14 and 19 is law giving effect to the policy of the State towards securing all or alny of the Directive Principles. Whenever, therefore, any protection is claimed for a law under the amended Article 31C, it is necessary for the court to examine whether tfa~ law has been enacted for giviing effect to die policy of the State towards securing any one or more of the Directive Principles and it is only if the court is so satisfied as a result of judicial scrutiny, that the court would accord the protection 0£ the ame111ded Article 31C to such law. Now it is undoubtedly true that the words used in the amended Article are "law giving effect to the policy of the Staie", but the policy o~ the State which is contemplated there is the policy towards securing one or more of the Directive Principles. It is the constitutional· obligation of the State to secure the Directive Principles and that is· the policy which the State is required to adopt and when a law 1s enacted in pursuance of this policy 0£ implementing the Directive Principles aru:l it seeks to give effect to a Directive Principle, it would, both from •the point of view of grammar and language, be correct to say that it is made for giving effect to the policy of the State towards securing such Directive Principle. The words "law giving effect to the policy of the State" are not so wide as Mr. Palkhiwala would have it, but in the context and collocation in which they occur, they are intended to refer only to a law enacted for the purpose of implementing or giving effect to one or more of !thie Directive P!rinciples.. The Court before which .protection for a particular law is claimed under the amended Article 31C would therefore have to examine whether such law is enacted for giving effect to a Directive Principle, for then only it would have the protection of the amended Article 31C. Now the question is what should be the test for determining whether a law is enacted for giving effect to a Directive Principle. One thing is clear that a claim to that effect put forward by the State would hav·e no moaning or value; it is the court which would have to detennilll.e the que!ltion,. Again i:t is n.ot enough that there may be some connection between a provision ·of the law and a Directive Principle. The co'l.111ection has to be between the law and the Directive Principle and it must be a r~I and substantial connection. To determine whether a law .:atisf!es this test, the court would have to examine the pith and 5ubsta:nce, the true nature and character of the law as also its design and the subject mailter dealt with by it toge~her with it$ object and scope. If on such examination, the court finds that the dominant object, of the law is to give effect to the Directive Principle, it would accord protection to the law under the amended Article 31C. But if the court finds tlhat the law though passed seemingly for giving effect to a Directive Principle, is, in pith and substance. one for accomplishing an unauthori'sed purpose-unauthorised in the sense of not being covered by any Directive Princitple. such Jaw would not have the protection of the amended Article 31C. To take the illustration given by Khanna, J. in Keshavmwnda Bharati's case at page 745 nf the Report, "a law might be made that as the old residents in the State ·are economically backward and those who have not resided in the State for m~re than three generations have an affluent business i11 the Stale or have acquired property in the State. they shall be deprived o:fl \heir business and property with a view to vest the same in the old residents of the State." It may be possible, after performing what I may call an archaeological operation, to discover some remote the tenuous connection between such .law and some Directive Principle, but the dominant object of such law would be, as pointed out by Mr. H. M. Seerva.i at Page 1559 of the second Volume of his book on "Constitutional Law of-India", to implement "the policy of the State to discriminate against ciitizens who hail from another State, ~ and in a practical sense, to drive. them out of it", and such law would not be protected by the amended Article 31C. Many such examples can be given but I do not wish to unnecessarily burden this opinion. The point I wish to emphasize is that the amended Article 31C does not give protection to a law which has merely some remote or tenuous connectbon with a Directive Principle . What is necessary is that there must be a real and substantial connection and the dominant object of the law must be to give effect to the Directive Principle. and that is a matter which the court would have ·to decide before any claim for protection under the amended Article 31C can be allowed.

pp. 336–338, margin C

There i's also one other aspect which requires to be considered before protection can be given to a law under the amended Article 31 C. Even v,:here the dominant object of a law is to give effect to a Directive Principle, it is not every provision of the law which is entitled to Claiim protection. The words used in the amended Article 31 C are : "Law giving effect to the policy of the State to"'.'ards securing all or any of the principles laid down in Part IV" and these words, on a plain natural construction. do not iilclude all the provisions of the 1aw but only those which give effect to the Directive Principle. But the question is how to identify these provisions giving effect to the Directive' Princiiple in order to accord to them the protection of the amended Article· 31C. Thie answer to this question is analogically provided by the decision of this Court in Akadasi Padhan v. State of Orissa( There the question was as to what was the precise connotation of the expression "a law relating to" a State monopoly which occurs in Article 19(6). This Court held that "a law relating to" a State monopoly cannot include all the provisions contained in such law but it must be construed to mean, "the Jaw relating to the monopoly in its absolutely essential f~atures" and it is only those provisions of the law "which are basically and essentially necessary for creating the State monopoly"· whiCh are protected by Article 19(6). This vie·w was reiterated in several subsequent decisions of this Court which include inter alia Rashbihari Pande etc. ·v. State of Orissa( ), Vrajlal Manila[ & Co. & Ors. v. State of Madhya Pradesh & Ors.(3) and R. C. Cooper v; Union of lndia( ). I would adopt the same approach in the construction of Article 31C and hold that it is not every provision of a statute, which has been enacted with the dominant object of giving effect to a Directive Principle, that it entitled to protection, but only those provisions of the statute which are basically and essentially necessary for giving effect to the Directive Principles are protected under the amended Article 31C. If there are any other provisions in the· statute which do not fall within this category, they would not be entitled to protection and their validity would have to be judged by reference to Articles 14 and 19. Where, therefore, protection is .claimed in respect of a statute under the amended Article 31C, the court would .have first to determine whether there is real and substantial connection between the law and a Directive Principle and the predominant object of the law is to give effect to such' Directive Princilple and· if the answer to this question is in the affirma1ive, the court would then have to consider which are the provisions of the law basically and essentially necessary for giving effect to the Directive Principle: and give protection of the amended Article 31C only to those provisions. The question wh~ther any particular provision of the law is basically and essentially necessary for giving effect to me Directive Principle, would depend, to a large extent, on how closely and integrally such prov1s10n is connected with! the implemen:tation 0:i' the Direct:ivie Principle. If the court finds that a partic.ufar pro\1isfon: is subsidiary (1) [1963] 2 Supp. SCR 691.· (2) [19691 3 SCR 374. (3) [1970] 1 SCR 400. (4) [1970] 3 SCR 530. or incidental or not essentially and integrally connected with the implementation of the Directive. Principle or is of such a nature tlllit, though seemingly a part of the general design of the main provisions of the statute, its dom~nant object is to achieve an unauthorised purpose, it would not enjoy the protection of the amended Article 31C and would be liable to be struck down as invalid if it violates Article 14 or 19.

pp. 338–340, margin G

These consideraitions which I have discussed above completely answer some of the difficulties raised by Mr. Palkhiwala. · He said that if the amended Artide 3IC were held to be valid, even provisions like Section 23(e) and 24(1)(a) of the Bombay Prohibition Act, 1949 which were struck down in State of Bombay v. F. N. Ba/sari(l) as violating freedom of speech guaranteed under Article 19(1)(a), would have to be held to be valid. I do not think that freedom and democracy in this country would be imperilled if such provisions were held valid. In fact, after the amendment of A:nticle 19(2) by the Constitution (First Amendment) Act, 1951, it is highly arguable that both such provisions would fall within the protection of Article 19(2) and would be valid. And even otherwise, it is difficult to see how any violation of the basic structure is involved if a provision of a 'law prohibiting a person from commending any intoxicant, the consumption or use of which is forbidden by the law (exoept under a licence issued by the State Government) is protected against illfraction of Article 19(1)(a). The position would perhaps be different if a provision is introduced in tlhe Prohibition Act saying that no one shall 1speak against the prohibition policy or propagate for the repeal of the Prohibition Act or plead for removal of Article 47 from the Directive Principles. Such a provision may not and perhaps would not be entitled to the protection of the amended Article 31C, even though it finds a place in the Prohibition Act, because its dominant object would not be to give effect to the Directive Principle in Article 47 but to stifle freedom of speech in respeot of a particular matter ana it may run the ri'Sk of being struck down as violative of Article 19(l)(a). If the Court finds that even in a statute enacted for giving effect 'to a Directive Principle, there is a provision which is not essentially and integrally connected with the implementation of the Directive Principle or the dominant object of which is to achieve an unauthorised purpose, it would be outside the protection of the amended Article 31C and would have to meet the challenge of Articles 14 ana 19.

p. 340, margin B

Lastly, I must consider the argument of Mr. Palkhiwala That almost any and every law would be within the protectiOn of the •(l) [1951] SCR 682. amended Article 31C because it would be referable to some Directive Pninciple or the other. I think this is an · argument of despair. Articles 39 to '.51 contain Directive Prindples referring to certain specific objectives and in order that a law should be for giving effect to one. of those Directive Prillciples, there would have tOI be a real and substantial connection between the law and the specific objective set out in such Directive Principle. Obviously, the objectives set out in these Diirective Pninciplesi being specific and limited, eivery liaw made by a legislature in the country cannot possibly have a real ar.d substantial connection with one or the other of these specific objectives. It is only a limited number of laws which would have a real and -substantial connection with one or the other of specific objectives contained in these Directive Princitples and any and every law woula not come within this category. Mr. Palkhiwala t:!ten contended that in any event, the Directive Principle contained in Article 38 was very wide and it would cover almost any law enacted by a legislature. This contention is also not well founded. Article 38 is a general article which stresses the obligation of the State to establish a social order in which justice-social, economic and political shall inform all the institutions of .national life. It no doubt talks of the duty of the State to promote the welfare of the people and there can be no doubt that standing by itself this might cover ,a fairly wide area but it may be noted that the objective set out in the Article jls not merely promotion of the welfare of the people, bu~ there is a further requirement 'that the welfare of the people is to be promoted by the State, not in_ any manner it likes, not according to its whim and fancy, but for rsecuring and protecting a partiicular type of social order and that social order should be such! as would ensure social, economic and political justice for all. Social, economic and political justice is the objective set out in tihe Dilrective Principle in Article 38 and it is this objective which is made fundamental in the governance of the country wd whlch the State is laid under an obligation to realise. This Directive Principle forms the base on which the entire structure of the Directive Principles is reared and social, economic and political justice is the signature tune of the ,other Directive Principles. The Directive Principles set out in ' the subsequent Articles 'following upon Articlle 38 merely particularise and set out facets and aspects of the ideal of social, economic and political justice articulated in Article 38. MT. Palkhiwrala's complaint was not directed agailnst the use of me words 'political justice' in Article 3 8 but his contention was that the concept of social and economic justice referred to in that Article was so wide that almost any legislation could come within i[ I do not agree. The concept of social and eoon.omic justice may not be very easy of definition but its broad contours are to be found in some of t!he provisions of the Fundamental Rights. and in the Directive Principles and whenever a question arises whether a legislation is for gWing effect to social and economic justice, it is with reference to these provisions · that the question would have to be determined. There is nothing so vague or indefinite about the concept of . social or economic justice that almost any kind of legislation oould be justified und•~r it. Moreover, where a claim fur protection is made in respect of a legislation on the ground that it is enacted for giving effect to a Directive Principle, the . Directive Principle to which it is claimed to be related would not ordinarily be the general Directive Principle •set out in Article 38. but would be one of the specific Directive Prilnciples set out in the succeeding Articles, because as I said before, these latter particularise the concept of social and economic justice referred to in Articfe 38. I cannot therefore subscribe to the prroposition than if the Amendment in Article 31 C were held valid, it would have the effect .of protecting every possible legislation under the sun and that would in effect and substance wipe out Articles 14 and 19 from the Coinstitution. This is a tall and extreme argument fgr which I find no justification in the p~ovisions of the Constitution.

pp. 340–342, margin G

I would therefore declare Section 55 of the Constitution (Fortysecond Amendment) Act, 1976 which inserted sub-sections (4) and (5) in Article 368 as unconstitutional and void an the. ground that it damages the basic structure of the Constitution and goes beyond the amending power of · Parliament. But so far as Section 4 of the Constitution (Forty-second Amendment) Act, 1976 is concerned. I· hold that, on the interpretation placed on the amended' Article 31 C by me, it does not damage or destroy thie basic structure of the Constitution and is within the amendilng power of Parliament and I would 'therefore declare the amended Article 31C to be constitutional and valid.

p. 342, margin D

I have also given my reasons in this judgment for subscribing to the Order dated 9th May, 1980 made in Waman Rao's case and this judgment in so far as it set!s out those reasons ,~ill be formally pronounced by me when Waman Ra.o's case is set down on board for judgment.

p. 342, margin F

s. R. .GIPN-S2-646 S. C. India/80-24-4-81-2,500.. \

p. 342, margin G