Contingent on economy, directive principles’ implementation a tough task in South Asia

CaptureBy Jivesh Jha–

Although the member states of South Asian Association for Regional Cooperation (SAARC) adhere to basic principles of democracy, they have some fundamental differences in their constitutional provisions.

Through their Directive Principles of State Policies (DPSP), the SAARC countries have succeeded to blow the bugle against discrimination and injustice with a view to espouse positive action in certain directions in order to promote the welfare of people and achieve economic democracy.

The youngest Constitution of the world which was enforced on Nepali soil on September 20 last year in its DPSP (Part IV, Article 49- 55) envisages that the provisions contained in this part will be the aims and objectives to be taken up by the state in governance of the country. The statute in its Article 50 provides that the state would script an active role for strengthening federal democratic republican system to counteract the strokes contrary to sovereignty and integrity of the nation.

Asserting that their governance policy is to bat for public welfare, the Constitution in its Article 50 further provides that the state would not leave even a single stone unturned to make sure gender equality, proportional inclusion and social justice in all spheres of national life. “However, the goal of legislation would find a prominent space only when the government takes a vow to implement the policies as legislature’s intention can be judged better by what they do than what they say,” opined Abhiranjan Dixit, Faculty of International Law at Uttaranchal University, Dehradun.

“Nevertheless, if the state fails to enforce the ambitious programs, the DPSP provision would be observed merely like a handsome chatterbox. We want actual materialization of the plans and policies, which are made for empowerment of women,” said Aasha Jha, one of the woman rights activists in Nepal.

The DPSP provisions of the Nepali statute corroborates that it will be the objective of the state to foster international relations, gender equality, tourism, social justice & inclusion, employment opportunities, traditional medicinal systems of Ayurveda and homeopaths, developmental policies, industrialization, quality education, maintaining rule of law & human rights, and among others. Further, Article 50(a) (5) provisions that it would an obligation on state to make the defense bodies inclusive in character. However, Article 268 places an extraordinary power in favor of Center over the provincial legislature to enact provisions relating to police, army and among other defense mechanism.

Laying emphasis on national integrity, the DPSP provision in its Article 52 envisions that it would be the obligation of state to maintain Nepal’s independency, sovereignty, territorial integrity, and autonomy.

Although the states have brought lofty plans, it’s unequivocally argued that they have succeeded little in walking in the line with the directive principles. “Even as the states have set its sight to put the DPSP provisions into effect, their installation have become an uphill task as the directive principles have a strong reliance on the country’s national economy. It would be a daydream to envisage the implementation of DPSP provisions in a pragmatic sense without making the country economically viable for it. These provisions are directory in nature and not mandatory as it prescribes only a duty of state to walk in pursuance of the directive principles. And, due to this reason, the DPSP provisions are unenforceable before any court of law,” opined Aalok Kumar Yadav, Faculty of International Law at HNB Garhwal Central University, Srinagar. Though the provisions are not enforceable in any court of law, “Its an obligation of state to carve the policies at the cusp of DPSP.”

The Constitution of India (COI), being the largest document of the world and oldest in South Asia, provisions that their objective of DPSP is to make India a “welfare state”.

Nevertheless, though India and Nepal share similarities in number of things, they continue to have differing DPSP provisions.

The DPSP of COI provisions that the state shall strive to promote the welfare of people by securing a social order. While negating any form of injustice—be it social, political and economical—the fundamental document further provides that it would be an obligation of state to promote the professional management of cooperative societies.

In an endeavor to achieve social justice, the statute rules out the possibility of denial of justice to any citizen and confirms equal justice and free legal aid as one of the directive principles, Article 39A.

Meanwhile, it’s further provisioned that there will be promotion of educational and economical interest of weaker sections of societies.

Furthermore, rights of workers, protection and improvement of environment, promotion of international peace, organization of agriculture and animal husbandry, raise level of nutrition, organization of village Panchayat and among other provisions have also been incorporated to achieve the goal of welfare state.

Even as there exists distribution of power, the DPSP provisions under Article 50 that the state shall take steps to separate judiciary from the executive.

“Though the COI does not expressly adapt the doctrine of separation of power like USA, it offers an ample ground which negates the possibility of intermingle of functions of the three organs of the state,” opined Mohit Negi, Faculty of International Law at Siddhartha Law College, Dehradun. He further added that the framers have paved the ways for the state to take initiatives for separating judiciary from executive in the public service of the state. “However, it would be futile to claim that the legislation gives a blow to the well-settled principle of separation of power.”

Showing satisfaction with professor Negi, former Civil Judge and faculty of International Law at Uttaranchal University, Dehradun Mr. Pramod Tiwari maintained that a unique nature of federalism respires on Indian soil. “We have our own model of federalism. Some thorny eyes often term India of being a quasi federal state but their claim is misplaced as the fundamental document is capable enough to accelerate the basic values of federal democracy, including separation of power,” argued Tiwari. For him, the Indian democratic set up waters the concept of federalism where the judiciary, the highest pillar of democracy, is made fully independent. “The wings of state—legislature and executive—are not empowered to intervene in the business of judiciary, the third wing, and vice-versa. Had the legislature and executive been conferred with power to intervene in the affairs of judiciary, the judicial bodies would have snowed with unprecedented problems,” added he.

Nonetheless, he was quick to add that the sufficiently superior Courts, including the highest of Court of land in India, had underscored the need of separation of power.”In the case of Keshvanand Bharati Versus State of Kerala, the Supreme Court had pronounced that the separation of power is the basic structure of Indian Constitution.” He slammed the beaks which argue that India is reluctant to irrigate the separation of power. “The three organs of the state—executive, legislature and judiciary—have been embodied in the three respective Chapters of Constitution so as to quicken the pulse of separation of power. Nevertheless, the power of judicial review has been vested on judiciary to check the constitutionality of any statute passed by the competent legislature of India.”

In an apparent bid to ensure a broad-based state policy, Bhutan envisages “Gross National Happiness (GNH)” to flourish the Buddhist spiritual values instead of western material development gauged by Gross Domestic Product (GDP). While endorsing the novel policy, the His Majesty King had argued that “GNH is more important than GDP.”

“It’s beyond any iota doubt: the Bhutanese constitution is all-set to spearhead a new beginning through its DPSP. The country would embark a new beginning before the world-map provided the state succeeds to achieve the dynamic design of state policy,” further argued professor Dixit.

The directive principle of Bhutan Constitution has been incorporated under Article 9(1) to Article 9(24).

Coming down heavily upon the moves contrary to peace and amity, the Bhutanese Constitution envisages that the objective of their legislation is to excavate discrimination, inequality, injustice and violence.

Even though the objective of the legislation is unlike piece of cake, the DPSP provision also provides that the efforts would be taken for sure to minimize the inequalities of income.

Similarly, right of free legal aid has been guaranteed under Article 9(6) for the indigent justice seekers so as to not let them impatiently keep staring at the walls of courts for legal representation. However, the same right has been expressly mentioned as a matter of Fundamental Rights (FR) in Nepali Constitution.

Further, the directive principles of Bhutan Constitution also authenticate that the steps would be taken to create an egalitarian society resting on the values of principles of equity. More, rights of industrial workers have also been incorporated in order to strike a balance between the labor and capital. The constitutional provisions also slam the human trafficking, prostitution and other immoral activities.

Likewise, its also provisioned that state shall strive to create conditions that will enable the true and sustainable development of a good and compassionate society rooted in Buddhist ethos and universal human values.

Like, other South Asian Constitutions, the Bhutanese statute expresses a pledge to foster international peace and security by giving a due respect to international laws and treaties signed at international forums to which the state is a signatory.

Explaining that their country is pledged to stand neck-to-neck with Islamic worldviews; the Pakistani Constitution sets out its main goal to promote the Islamic way of life, enabling the Muslims of the country to contour their lives in the line with Holy Quran and Sunnah, Article 31.

When asked whether a complete stress on a particular religion is a healthier practice, Uttaranchal University professor Tiwari added, “It’s not an issue to be flaked. As the name of the country is Islamic Republic of Pakistan, the legislation envisages that the national life, including government, should shape their activities within the limits prescribed by Almighty Allah, the sacred trust.”

Leaving no rooms for discrimination, the Constitution also forbids bigotries resting upon race, tribe and gender. In an attempt to mainstream the women community, the directive principles assert that steps will be taken to ensure full participation of women in all spheres of national life, Article 34.

In order to win the hearts and minds of the minority groups, the fundamental document expresses that the legitimate rights and interest of the minorities would be safeguarded for sure, and adequate arrangements would be made for their due representation in federal and provincial legislature, Article 36.

However, the Constitution makes it clear that the fundamental principles would be contingent upon resources being available for the purpose and the principle to be regarded as being subject to availability of resources, Article 29(2).

Further, the state has also set a goal to prevent consumption of liquor. The Constitution also provides that the state would play an instrumental role to enable people from all parts of Pakistan to participate in armed forces, Article 39. Similarly, the Pakistani Constitution also makes it lucid that their legislation has taken an objective to ‘preserve and strengthen fraternal relation among Muslim countries based on Islamic unity’. However, the provision also adds that steps will be taken to advance fraternal relations with all nations in order to garner international peace, Article 40.

Meanwhile, the Constitution further envisages that each year the policies of state shall be laid down in the parliament and the course of action will be decided in the line with parliamentary report on it, Article 29(3).

The DPSP provisions are enshrined under Articles 29-40 in Constitution of Pakistan.

Adjusting a similar tuning with Pakistan, the Bangladesh Constitution asserts that absolute trust and faith in the Almighty Allah shall be the basis of all actions to be taken under the garb of directive principles, Article 8(1A). The Constitution provides that any moves augmented against human rights and fundamental values would be chopped for sure. Similarly, the document also comes down heavily against prosecution of human rights and natural justice.

Adopting a similar gesture like other member states of SAARC, the Bangladeshi Constitution expresses a pledge to make proper availability of education, employment, health services, and among other amenities resting upon the boundary of basic needs.

The fundamental document also takes a vow to script all permissible political adjustments for mainstreaming the underprivileged category of people.

The Constitution also confirms that necessary steps would be taken to give life to the doctrine of separation of power. The provision stands on similar footing with India.

Likewise, the Srilankan Constitution envisages that the provisions of DPSP would guide the Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of the country for the establishment of a just and free society, Article 27. Moreover, it envisages of ‘just & fair society’ as goal of their state policy.

Further, the Constitution takes a pledge to establish Srilanka a ‘Democratic Socialist Republic country’. Like other SAARC nations, the DPSP of Srilanka also slams every form of discrimination while ensuring that the every possible measure would be taken to safeguard the fundamental rights of persons. The provisions also talk about mainstreaming vulnerable groups, ensuring quality education and to put an end to economic disparity.

The DPSP provisions are covered under Article 27-30 in Srilankan Constitution.

While talking about unanimity of opinions, the South Asian countries are at even to favor the rights of women so as to not let the dreams of half national population turn sour. However, when asked whether the countries are at par with their Constitutional claims, faculty of Human Rights Mrs. Pallavi Gusain claimed that the major democratic countries have acknowledged the rights of woman ‘merely for show off’. “In an effort to project them as gender sensitive before the world map, the democratic countries have scripted their laws in pursuance with international declarations. They bring lofty plans for the woman. Sadly enough all are limited in words.”

When she was asked to float the measure for women empowerment, Mrs. Gusain went on assert, “Women empowerment will actually materialize on the day when the attitude and mentality of the entire communities’ changes, allowing the evenhandedness approach to flourish. And, then only we would succeed to slam the gender bigotries in both letter and spirit.”

As action speaks louder than words, “the need of hour is to be honest in realizing the dreams of Constitution. If the Constitutional provisions would not be enforced in both letter and spirits, it would keep standing just like a big tree with hollow trunk.” Shading lights on relevancy of gender equality, she further added, “Birds, for instance, work together to create a nest. For this purpose, they do not hesitate to get or give help. So, why not we come together; assist each other for a cause.”

However, “there should be a proper social set up to ensure the dignity of woman.”

Further, though the Directive Principle of State Policy (DPSP) sets out the aims and objectives taken by the legislation to achieve with a high sense of moral duty, the two south Asian nations—Afghanistan and Maldives—have stood indifferent in incorporating the said arrangement.

Although, the DPSP provisions of South Asian Constitutions are clothed with international humanitarian laws, its implementation is still a tough nut to crack.





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