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Non-enforceability of Directive Principles of State Policy: Real Barrier or

Article · December 2012

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Danushka Medawatte
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The directive principles of state policyi were formally introduced to Sri Lanka in the 1972
Constitutionii and the provisions were much similar to that of the provisions of the Irish
Constitutioniii. Later 1978 Constitution adopted these principles while continuing to declare
that the DPSP cannot be enforced in any court of lawiv. However, the relevance of the DPSP
to the proper implementation of fundamental rights is evident in all aspects of Chapter III
and Chapter VI of the Constitution as “the directive principles are intended to set standards
of achievement for the legislature and the executive”v.

In Sri Lanka, the judicial precedent in relation to the DPSP is not in a developed state which
justifies turning to other jurisdictions such as India where there is a developed jurisprudence
in that regard. It is important to identify that there exists a developing international opinion
regarding the integration of DPSP with the Fundamental Rights as can be seen by the United
Nations Draft Country Programme for Ghana (2006 - 2010)vi which encourages drawing links
between the rights and the DPSP.

The disparity that exists between the rich and the poor in Sri Lanka is increasing in various
forms and this in itself is a threat to the socialist aspect of governance vii that exists in Sri
Lanka, which has been espoused and promoted in the Constitution by way of defining the
country as the Democratic Socialist Republic of Sri Lanka. Inability to provide satisfactory
responses for such incidents could be another reason for the massive numbers of
fundamental rights cases that are piling up in the Supreme Court and it could function as an
eye-opener to encourage the promotion of DPSP.

According to an Indian judgment,viii “directive principles of state policy have to conform to

Nigeria had the opportunity of experiencing DPSP in 1970 with the introduction of the
chapter on Fundamental Objectives and DPSP to their Constitution. It is stated that the
ideology that underlies the DPSP is to develop the “political ideals as to how society can be
organised and ruled to be the best advantage of all”ix. Thus it is clear that the political ideals
which play an important role in the construction, formulation, interpretation and the
enforcement of fundamental rights are expressed in DPSP and that if they are given a
functional value, the fundamental rights can be implemented more effectively.

The non justiciability of the DPSP means that the courts cannot enforce them, which means
that the Legislature and the Executive are not bound to comply with the DPSP. “It has been
asserted that directives are in the form of holy wishes having no legal sanction behind

1
Attorney – at – Law, LL.B (Hons) Colombo, DIRIL (IPM), DIR (Distinction) BCIS.
them”x. However, that approach is not perfectly fitting as it can be argued that according to
Article 29xi of the Constitution, what cannot be done is for the citizens to claim or raise the
issue in a court of law, that the directive principles are not being enforced. However Article
27xii is what is relevant to the enactment of laws as it says that the DPSP “shall guide
Parliament, the President and the Cabinet of Ministers in the enactment of laws and the
governance of Sri Lanka for the establishment of a just and free society”. It can be construed
to mean that the Legislature and the Executive are formally expected to have regard to, and
formulate, the laws in accordance with the DPSP. Hence, the legislature’s duty to
incorporate the DPSP into the laws that are enacted is by no way removed by the
Constitution.

The word “shall” used in Article 27xiii plays an important function according to the theories
of statutory interpretation as it adds the sense that it is a must for the Legislature and the
Executive to integrate the DPSP in the legislative enactments. Thus, even though the DPSP
may not be enforced by a court of law or tribunal as of right, it is possible to state that an
individual can raise the argument that the legislature or the executive has disregarded the
provisions of DPSP when formulating a particular legislative enactmentxiv. This view has also
been upheld in the case of In re the Thirteenth Amendment to the Constitutionxv. Article 27
(2) read in conjunction with Article 27 (1) means that the Legislature and the Executive are
expected to comply with the DPSP when legislating because “the state is pledged to
establish in Sri Lanka a democratic, socialist society” of which the objectives are mentioned
in Chapter VI. Since the “label” given to Sri Lanka describes itself as the “Democratic
Socialist Republic of Sri Lanka” it would then be absurd to argue that any deviation from the
DPSP is appreciated as that would harm the very core objective of the pledge made to the
people in the Constitution.

If the aforementioned approach is read into the Constitution with Article 3 where the
sovereignty of people is referred to as being “inalienable”, it would be impossible to deviate
from the DPSP in enacting legislations in keeping with the DPSP based on the frail argument
that the DPSP cannot be enforced as of right. According to Article 3 of the Constitution,
“sovereignty includes the powers of government, fundamental rights and franchise”. Article
4 (a) and (d) read in conjunction with article 3 and Article 27 (1) and (2) (a) it is undeniable
that the Legislature ought to take the DPSP into consideration when drafting laws especially
with a bearing on Fundamental Rights.

It is justifiable to state that the fundamental rights and DPSP are “complementary and
supplementary to one another”xvi. This approach is what has made India rich with a
developed jurisprudence in relation to the DPSP. In His Holiness Kesavananda Bharathi &
another v State of Kerala and Anotherxviiwhich was a thirteen – Judge Bench decision on
DPSP, it was stated that “the judicial approach should be dynamic rather than static,
pragmatic, and not pedantic and elastic rather than rigid”. It was further established in this
case that “no abstract or general pattern or fixed principle can be laid down so as to be of
universal application. It will have to vary from case to case and having regard to the
changing conditions, the values of human life, social philosophy of the Constitution,
prevailing conditions and the surrounding circumstances all of which must enter into the
judicial verdictxviii”. Hence, in order to have “full realization of the fundamental rights and
freedoms of all personsxix” and to achieve the objectives mentioned in Chapter III of the
Constitution, it is essential that an activist’s perspective be adopted and that each case of
fundamental right and each law or legislation that would have a bearing on such a right or a
freedom be dealt with on merits of the case or the legislation.

“The invocation of outdated foreign precedents and outmoded common law rules of
interpretation by the Courts in Malaysia and Sri Lanka have reduced the significance of the
principles and values of the new constitutional orders”xx. This approach cannot be
perpetuated in view of the Preamble of the 1978 Constitution which lays down the objective
of “assuring to all people freedom, equality, justice and the independence of the judiciary”.
Hence, the preamble and Article 125 which enables the Supreme Court of Sri Lanka to “hear
and determine any question relating to the interpretation of the Constitution”xxi also builds
the capacity of the judiciary to engage in judicial activism in respect of legislations and
fundamental rights applications thereby giving the judiciary an invaluable opportunity to use
the DPSP to improve the standards of life of Sri Lankan citizens and to promote the
application of fundamental rights.

Conclusion
The notion that the fundamental rights can be enforced but that the DPSPs cannot be
enforced is a concept which can be used to the detriment of the full implementation of the
rights and freedoms of people. Hence, it is necessary that the three organs of the state; the
Executive, Legislature and the Judiciary take measures to activate the socio-economic
policies of the Chapter on DPSP.

The role of the judiciary should not be limited to the application of Article 29 stating that the
DPSP are not enforceable by a court of law. The emerging trend should be to develop
judicial precedent to the effect that the DPSPs are given due respect and implemented
through the fundamental rights. The non-implementation of the DPSP will necessarily give
rise to the violations of fundamental rights. Unless this truth is understood, the DPSPs will
forever remain under the shadow of Article 29.

i
Hereinafter abbreviated as DPSP
ii
vide Article 16 of Chapter V of the First Republican Constitution of 1972. However, the present Constitution
encapsulates a detailed and a broader statement of the DPSP in Chapter VI.
iii
See Article 45 of the Constitution of the Republic of Ireland. These provisions encouraged the nationalists in
India to introduce the DPSP to the Indian Constitutions at a time the Indian society was pressed with the
burden of poverty.
iv
Article 29 and vide Omar I., 1996, Rights Emergencies and Judicial Review, Kluwer Law International at p. 28
v
Wickramaratne J. 2006, Fundamental Rights in Sri Lanka, Second Edition, Stamford Lake (Pvt) Ltd, Pannipitiya
at p. 38
vi
United Nations Executive Board of the United Nations Development Programme and of the United Nations
th th
Population Fund., Annual Session 2005, 13 – 24 June, New York., Draft Country Programme Document for
Ghana (2006 - 2010) at p. 4 the document refers to “linking rights and environmental protection to reflect the
directive principles of state policy of the 1992 Constitution, which enjoins the state to protect and safeguard
the national environment” which the author of the present paper has used by way of analogy to draw a link
between the DPSP and the Fundamental Rights.
vii
ILI Law Review 2010., Vashist L., Enlivening Directive Principles: An Attempt to Save Their Vanishing Present
at p. 211 the author states “in the contemporary era of liberalization, the socialistic principles and socio-
 economic rights of the deprived masses have been forgotten to secure the trade, business, occupation and
property of a few elite”.
viii
The State of Madras v Srimathi Champakam Dorairajan [1951] SCR 525
ix
Akande J.O, Fundamental Objectives and Directive Principles of State Policy within the Framework of a Liberal
Economy at p. 691
x
Directive Principles of State Policy and Fundamental Duties accessed at
th
http://download.nos.org/srsec317newE/317EL7.pdf on 20 December 2012.
xi
Article 29 states “the provisions of this chapter do not confer or impose legal rights or obligations, and are
not enforceable in any court or tribunal. No question of inconsistency with such provisions shall be raised in
any court or tribunal”.
xii
vide Section 27 of the Constitution
xiii
It may be argued that while taking away the enforceability of DPSP through Article 29, the constitution has
guaranteed the obligatory nature of the DPSP through Article 27.
xiv
supra Vashist L., Enlivening Directive Principles: An Attempt to Save Their Vanishing Present at p. 212 “The
sole reason of judicial non-enforceability does not strip them off the status of law, as the view that only rules
and principles enforceable by courts are laws, is obsolete”.
This argument can be used to raise the doubt whether a particular bill can be struck down as being ultra vires if
it had been drafted without concern for DPSP.
xv
[1987] 2 SLR 312 at p.327 “True the principles of state policy are not enforceable in a court of law but that
shortcoming does not detract from their value as projecting the aims and aspirations of democratic
government. The directive principles require to be implemented by legislation”.
xvi
vide http://download.nos.org/srsec317newE/317EL7.pdf
xvii
[1973] 4 SCC 225
xviii
id
xix
Article 27 (2) (a)
xx
supra Omar I, Rights Emergencies and Judicial Review at p. 256
xxi
Article 125 of the Constitution

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