MODULE II: Republic of India as a welfare state

The welfare state is a concept of government in which the state or a well-established network
of social institutions plays a key role in the protection and promotion of the economic and
social well-being of citizens. It is based on the 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.

A fundamental feature of the welfare state is social insurance, which is usually financed by
compulsory contributions and is intended to provide benefits to persons and families during
periods of greatest need. It is widely recognized, however, that in practice the cash benefits
fall considerably short of the levels intended by the designers of the plans. The welfare state
also usually includes public provision of basic education, health services, and housing.
Antipoverty programs and the system of personal taxation may also be regarded as aspects of
the welfare state. Personal taxation falls into this category insofar as its progressivity is used
to achieve greater justice in income distribution (rather than merely to raise revenue) and also
insofar as it used to finance social insurance payments and other benefits not completely
financed by compulsory contributions.

The History of Welfare State

Although fair treatment of citizens and a state-provided standard of living for the poor dates
back further than the Roman Empire, the modern welfare states that best exemplify the
historical rise and fall of this concept are the U.K. and the United States. From the 1940s to
the 1970s, the welfare state in the U.K.—based on the Beveridge Report—took hold, leading
to a growth in the government to replace the services that were once provided by charities,
trade unions, and the church.

UK’s Beveridge Report

The Report is Sir William Beveridge’s clarion call to Parliament to establish a comprehensive
system of social insurance for Britain’s population in his report Social Insurance and Allied
Services, better known as the Beveridge Report, which was presented to Parliament on 24
November 1942 and has its 75th anniversary this year. In the report he enumerated 5 Evils
that UK needs to address.
Want: Poverty and financial insecurity, addressed through social insurance and minimum
income guarantees.

Disease: Lack of access to healthcare, tackled by establishing universal health services.

Ignorance: Insufficient education, requiring widespread access to quality schooling.

Squalor: Poor living conditions, mitigated by improved housing policies.

Idleness: Unemployment, resolved through policies promoting full employment and

economic stability.

Welfare State and India

D.S. Nakara & Others vs UOI 1982

Directive Principles of State Policy

The Part IV of the Indian Constitution houses the Directive Principles of State Policy
(DPSP). Derived from the Irish Constitution of 1937, the DPSP are a set of principles that are
to guide the future policies of the State. It was designed as a supplement to the Fundamental
Rights in Part III. Part IV contains a list of socio-economic rights that the State is expected to
secure for the people through suitable legislative enactments. They are affirmative directions
and constitute a manifesto for strengthening the socio-economic foundations of India. The
importance of Directive Principles in the scheme of our Constitution cannot ever be
over-emphasized. Those principles project the high ideal which the Constitution aims to
achieve.
Nature of DPSP:

1. Objectives of Part IV: The aim of Part IV is to provide for a welfare polity characterized by
social, economic, and political justice. Article 38 states the objectives of Part IV as “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”.

2. Not Enforceable by Courts: DPSP are non-justiciable directives that are not enforceable by
Courts of law. Courts cannot be moved to get these implemented, unlike the Fundamental
Rights.
Socialist Principles

The socialist principles of the DPS are contained in Articles 38, 39, 41, 42, 43, and 47. These
aim to secure a welfare socialist state through the doctrine of redistributive justice.

1. The State shall try to secure the welfare of the people by securing a social order
characterized by social, economic, and political justice (Art 38)

2. The State shall provide adequate means of livelihood to all citizens. (Art 40)

3. Secure equitable distribution of material resources of the community to ensure them

common good. (Art 39)

4. Prevent concentration of wealth and means of production and essential services (Art 39
[iii])

5. Provide equal pay for equal work for men and women (Art 39 [iv])

6. Protect the health and strength of workers, especially children from exploitation and moral
and material abandonment

7. Secure just and humane conditions of work, livable minimum wage, decent standard of
living, provisions for leisure, medical compensation for hazards, and maternity relief. (Art 42
& Art 43)

8. Secure participation of workers in the management of industries. (Art 43A)

9. Raise the level of nutrition and the standard of living of people and to improve public
health (Art 47)

Gandhian Principles

The Gandhian Principles of the Indian Consitution are based on the ideals of the Father of

the Indian Nation.

1. Organise Village Panchayats and endow them adequate powers and authority to enable
them to act as effective units of local self-government (Art 40)

2. Promote Cottage industries on individual and cooperative basis in rural areas (Art 43)
3. Promote voluntary formation, autonomous functioning, democratic control, and
professional management of cooperative societies (Art 43 B)

4. Promote educational and economic interests of the weaker sections like the Scheduled
castes and Scheduled Tribes to protect them from social injustice and exploitation (Art 46)

5. Prohibit the consumption of intoxicating drinks and drugs which are injurious to health
(Art 47)

6. Prohibit the slaughter of cows and other milch cattle (Article 48)

International Peace & Security:

Article 51 of Part IV of the Constitution states:

(a) promote international peace and security;

(b) maintain just and honorable relations between nations;

(c) foster respect for international law and treaty obligations in the dealings of organized

peoples with one another; and

(d) encourage settlement of international disputes by arbitration.

Separation of Powers

In line with the basic principles of a liberal democratic polity, it is imperative that the three
organs of the state Legislature, Executive and Judiciary enjoy certain levels of autonomy
from interference from one another. Division of power and purviews of operations ensures by
preventing:

1. Legislative handicapping of the administrative branch leading to a reactionary or hung

executive.

2. Executive’s overreach negating its accountability to the legislature and erosion of judicial
neutrality.

3. Juridical adventurism undermining the democratic spirit by overriding decisions made by

popularly elected legislatures and executives.

Separation of powers is guided by the following four principles:

1. Exclusivity Principle: Based on Montesquieu’s tripartite system in the Spirit of Law,
dividing political powers amongst the state organs of legislature, executive, and judiciary.

2. Functional Principle: Establishes boundaries of each organ, and that one organ shall not
perform or interfere in the functions of another organ.

3. Checks and Balances Principle: States that check should be made on each other by these
organs to ensure that the functions and duties performed by any of them are within the
constitutional bounds.

Relationship between DPSP and Welfare State

Minerva Mills Ltd & Ors. V UOI, 1982

The principles enunciated in Part IV are common to all polities, democratic or authoritarian.
Every State is goal-oriented and claims to strive for securing the welfare of its people. Article
38 provides that 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. It is not correct that all the
Directive Principles of State Policy contained in Part TV eventually verge upon Article 38.
Article 38 undoubtedly contains a broad guideline, but the other Directive Principles are not
mere illustrations of the principle contained in Article 38. It no doubt talks of the duty of the
State to promote the welfare of the people, not according to its whim and fancy, but for
securing and protecting a particular type of social order – to ensure social, economic and
political justice for all. Social, economic and political justice is the objective set out in the
Directive Principle in Article 38 and it is this objective which is made fundamental in the
governance of the country and which 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 Article
38 merely particularise and set out facets and aspects of the ideal of social, economic and
political justice articulated in Article 38.

Balance between FR and DPSP

Minerva Mills Ltd & Ors. V UOI, 1982

The building of a welfare State, is the ultimate goal of every Government but that does not
mean that in order to build a welfare state, human freedoms have to suffer a total destruction.
But to destroy the guarantees given by Part III in order purportedly to achieve the goals of
Part IV is plainly to subvert the Constitution by destroying its basic structure. Fundamental
rights occupy a unique place in the lives of civilized societies and have been variously
described as "transcendental", "inalienable" and "primordial" and as said in Kesavananda
Bharati case.
The significance of the perception that Parts III and IV together constitute the core of
commitment to social revolution and they, together, are the conscience of the Constitution is
to be traced to a deep understanding of the scheme of the Indian Constitution. Parts III and IV
are like a twin formula for achieving the social revolution which is the vision of the founders
of the Constitution. In other words, the Indian Constitution is founded on the bed-rock of the
balance between Parts III and IV. To give absolute primacy to one over the other is to disturb
the harmony of the Constitution. This harmony and balance between fundamental rights and
directive principles is an essential feature
Randhir Singh V UOI, 1982

No doubt, equation of posts and equation· of pay are matters primarily of the Executive
Government and expert bodies and not for the courts, but where all thing~ are equal that is,
where all relevant considerations are the san1e, persons holding identical posts may not be
treated differentially in the matter of their pay merely because they belong to different
departments.

It is true that the principle of "equal pay for equal work" is not expressly declared by our
Constitution to be a fundamental right. But it certainly is a Constitutional goal. Article 39 (d)
of the Constitution proclaims "equal pay for equal work for both men and women" which
means equal pay for equal work for every one and as between the sexes. Directive Principles
have to be read into the fundamental rights as a matter of interpretation. Article 14 of the
Constitution enjoins the State not to deny any person equality before the law or the equal
protection of the laws and Article 16 declares that there shall be equa1ity of opportunity in
matters relating to employment or appointment to any office under the State. These equality
clauses of the Constitution must mean something to everyone. The preamble to the
·constitution declares the solemn resolution of the people of India to constitute India into a
Sovereign Socialist Democratic Republic. Again the word 'Socialist' must mean something.
Even if it does not mean 'to each according to his need', it must at ]east mean 'equal pa f equal
work

Independence of Judiciary
1. Separation of Judiciary from the Executive and Legislature: The judiciary is neither a
branch of the executive nor a handmaid of the legislature. The Courts adjudicate all matters
before them impartially without any undue restrictions, improper influences, inducements,
pressures, or threats.
2. Appointment of Judges by the President: The manner and method of appointing judges
ensure their independence. The judges of the Supreme Court and High Court are appointed
by the President on the basis of recommendations made by the Judicial Appointment
Commission. In the case of the appointment of the Chief Justice, the practice of appointing
the senior-most judge is followed. The president shall in all matters of appointment and
transfer of Judges depend on the advice of the Chief Justice of India. The principle of
seniority in the appointment of the Chief Justice of India and other judges as well as the
collegium system strengthens the independence of the Judiciary in India. In the subordinate
courts, the Judges are recruited through competitive examinations and are given due training
before their appointments. Strict measures are in place to ensure these judges are not political
appointments.
3. High Qualifications for Judges: The Constitution prescribes specific and high
qualifications for Judges. A person eligible for judgeship at the Supreme Court has to be an
Indian citizen, must have experience as a Judge of the High Court for at least five years, or be
an advocate of the Supreme Court for at least ten years, or be a distinguished Jurist.
4. Security of Service: Security of service for Judges is an essential prerequisite for ensuring
their independence. No judge shall be removed from office except by impeachment and only
on the grounds of proven misconduct or incapacity. Only if a resolution is adopted by the
majority of the total membership as well as the majority of 2/3rd of members of each House
present and voting is passed, can a judge be removed by the President. Even before the
moving of this resolution, the legislators must provide a notice which must be confirmed by a
committee of other judges.
6. Safeguards Against Interference: The judiciary is independent as laid down under Article
50. The conduct of the judges cannot be taken about in the parliament and state legislature as
provided under Articles 121 and 211. Judgments by courts are also not subject to any manner
of revision by the executive or legislature. Supreme Court reserves the exclusive right to
review or revise its own judgments or the judgments of lower Courts.
7. Prohibition of Practice after Retirement: A judge of the Supreme Court is prohibited
from practicing before any court or judicial authority in India as per Article 124(7) of
the Constitution. However, retired judges may be requested by the government to
various chair commissions of inquiry or other commissions created for specific
purposes in which their experience and expertise might be appropriate.
8. Power to Punish Contempt of Court: Courts have powers have power to punish all
cases involving contempt of court, as per Articles 129 (Supreme Court) and 215 (High
Court). Contempt of court is an act of disrespect or disobedience toward a court or
interference with its orderly process which comprises its judicial authority or casts
prejudice upon its position and prestige. Contempt of Courts Act, 1971 regulates
how the courts can punish for contempt of court
Contempt of Court are of two types:
Civil contempt: Section 2(b) of the Contempt of Court Act 1971 categorizes civil
contempt as:
 Intentionally disobeying a court order, judgment, or decree
 Intentionally breaking an undertaking made to the court
 Refusing to comply with a court order in a civil action
Criminal contempt: Section 2(c) of the Contempt of Court Act 1971 categorizes
criminal contempt as
 Any publication, statement, or act that scandalizes the authority of the court
 Any publication, statement, or act that prejudices a judicial proceeding
 Any publication, statement, or act that interferes with the administration of
justice
 Perjury: Lying under Oath
9. Judicial Review: As the protector of Fundamental Rights and the final arbiter
between the Union and States, the Supreme Court and the High Courts have been
given the power of judicial review. This allows them to judge the constitutional
validity of every Act of legislature and executive. Their decisions are binding on the
two other organs of the government. Judicial review serves as a key instrument for
Courts to strike down any unconstitutional attempt by either the legislature or the
executive to encroach upon the Judiciary.
10. Wide Jurisdiction: The lack of a dual-tiered Judiciary like the US, allows Judiciary in
India a vast and unfettered jurisdiction, by preventing the horizontal
compartmentalization of juridical purviews. The Indian judiciary, enjoying a single
integrated structure, has exclusive authority to decide whether an issue submitted
for its decision is within its competence through ‘procedures established by law’.

S.P. Gupta v Union of India

Independence of Judiciary held under “Basic Structure Doctrine.” It is

necessary for every Judge to remember constantly and continually that our
Constitution is not a non-aligned rational charter. It is a document of social
revolution which casts an obligation on every instrumentality including the
judiciary, which is a separate but equal branch of the State, to transform the
status quo ante into a new human order in which justice, social, economic and
political will inform all institutions of national life and there will be equality of
status and opportunity for all. The judiciary has therefore a socio-economic
destination and a creative function.. It cannot remain content to act merely as
an umpire but it must be functionally involved in the goal of socio-economic

The concept of independence of the judiciary is a noble concept which

inspires the constitutional scheme and constitutes the foundation on which
rests the edifice of our democratic polity. If there is one principle which runs
through the entire fabric of the Constitution, it is the principle of the rule of law
and under the Constitution, it is the judiciary which is entrusted with the task of
keeping every organ of the State within the limits of the law and thereby
making the rule of law meaningful and effective.

But it is necessary to remind ourselves that the concept of independence of

the judiciary is not limited only to independence from executive pressure or
influence but it is a much wider concept which takes within its sweep
independence from many other pressures and prejudices. It has many
dimensions, namely fearlessness of other power centers, economic or
political, and freedom from prejudices acquired and nourished by the class to
which the Judges belong. If we may again quote the eloquent words of Justice
Krishna Iyer.

Fundamental Duties

Inspired by the Constitution of the USSR, the Indira Gandhi government through the 42nd

Amendment of the Indian Constitution in 1976, added Fundamental Duties as Part IVA of the

Constitution. The Soviet Constitution, guided by the Marxist-Leninist principles, put a greater

emphasis on the duties of the Soviet citizens towards the development and growth of the
Soviet

state machinery. In the Soviet regime, the individual and his rights and freedoms were
considered to the distinctly subordinate to the collective good of the Soviet Socialist totality.

Though adopted during the draconian period of the Emergency (1975-77), the Indian
constitution takes care to establish the Fundamental duties as moral guidelines for the Indian
citizens. Legally they are subordinate to the Fundamental Rights (Part III) due to the
Fundamental Duties being non-binding and non-justiciable. Just like the DPSP (Part IV) acts
as a moral compass for the Government, the Fundamental Duties act as standards of ethical
behavior for the citizens.

According to the Duties enshrined in Art. 51 A, it shall be the duty of every citizen of India—

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and
the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and achievement;

(k) who is a parent or guardian to provide opportunities for education to his child or, as the
case may be, ward between the age of six and fourteen years. [added by the 86th Amendment
of the Indian Constitution, 2002]