Image: PTI /Mitesh Bhuvad
There are various theories of the state, especially on how it has emerge — Social Contract, Evolutionary and Marxian. However, in 21st century nation states, across regions and core political ideologies, one thing runs common and that is welfare/social justice. In some countries, the state is a less welfarist one and in some countries, it is a more welfarist one. The state is not, anymore, merely an institution to give the population some security from external actors and let the market decide the economic direction of the country. Different arenas of a country-social, economic and cultural- are interfered with, by the state. In countries like America, the interference is relatively less and in countries like India and China, the interference is relatively high. This idea of welfare gets manifest in various forms as the times change and with them, governments.
In the Indian context, different welfare schemes that were proposed by the government which would directly have an impact on people as a whole or on groups of people, were recently termed as freebies by some in the political spectrum. The Supreme Court of India too dealt with the issue of freebies in Ashwini Kumar Upadhyay vs. Union of India and issued an order to reconsider a 2013 SC judgement on the same issue.
This article is to understand the welfare measures from within the constitutional scheme rather than seeing them as ‘freebies.’
Welfare, in the Constitutional Scheme
It cannot be said, with certainty, that the Constitution had a definitive concept of welfare i.e., an economist’s definition of definition imbibed in it. However, there are some provisions in the constitution that offer what comcept of welfare the Constitution contain via its provisions. Most importantly, the transformative nature of the Constitution envisages a society that is substantively egalitarian: while recognising an India then and now that has a sub-stratum of social and economic inequality.
Preamble
There are three indicators in the Preamble that tell us about the kind of society envisaged in the constitutional scheme.
First is the word ‘socialist’ in ‘SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC.’ While the other words talk about the nature of the state and its functions, the word ‘socialist’ stands out since it signifies a specific economic system that is based on equality, even as a loose definition. The second indicator is the phrase ‘JUSTICE, social, economic and political’ affirming that such justice will be secured for all its citizens. As much as the three words ‘social, economic and political’ are different from each other, they are no isolated silos. They are overlapping aspects of the society envisioned; and an intersectional and a wholesome concept of welfare is enshrined in the constitution rather than a mere social one or an economic one. The third indicator is the phrase ‘EQUALITY of status and of opportunity’ which calls for a more equitable society. Preamble lays the roadmap for the specific provisions the constitution has in it, on welfare.
Article 21 and 21A.
Article 21 talks about Protection of life and personal liberty whereas Article 21A talks about Right to Education.
Right to life does not mean only the right to an animal existence but a dignified life as held in Menaka Gandhi vs. Union of India. In Olga Tellis, the court recognised a right to rehabilitation if the residents are eligible for such a scheme and the Delhi High Court too, recently has held that the rehabilitation scheme be interpreted in a liberal manner to uphold Article 21 and the Directive Principles of State Policy. Housing or perhaps, some roof over the head, came to be a part of Article 21, albeit with some restrictions.
The Delhi High Court, recently in the case of Delhi Sainik Cooperative Housing Building Society Ltd.(Regd.) And Ors. vs. Union of India, observed that Right to Drinking water is also imbibed in Article 21, and the court relied on the SC’s decision in A.P. Pollution Control Board II vs. Prof.M. V. Nayudu (Retd.) & Ors. to arrive at the decision.
Article 21 A provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years.
Housing, drinking water, Education-all of these are the basic necessities of people, then and now. In pursuance of these, the state could make a reasonable law and that comes under the ambit of welfare imbibed in the constitution.
Directive Principles of State Policy
Directive Principles of State Policy [DPSP] are some goals that are enshrined in the constitution for the state to achieve but are not justiciable unlike Fundamental Rights.
Article 38(1) states that the state should 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. Article 38(2) directs the state to strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
Article 39 directs that the state should strive to secure equality between men and women to have adequate means of livelihood, to make sure that material resources of the community are distributed to serve the common good, to make sure that there is no concentration of wealth, to secure equal pay for equal work, to secure that the health and strength of workers, men and women, children is not abused to push them into exploitative labour and to make sure children are given opportunities, and facilities for the to develop healthy manner without any exploitation and abandonment. Article 40 directs for organisation of village panchayats, Article 41 directs securing right to work, education and public assistance in case of unemployment, sickness and disability. Article 42 directs for securing just and humane conditions of work and maternity relief. Article 43 directs the state to secure living wages and better conditions of employment for workers. Article 43A, 43B directs the state to make sure the workers participate in the management of industries, and that the state should promote co-operative societies.
These DPSPs are not enforceable by citizens as provided in Article 37 of the constitution. These are enshrined in the constitution not as rights that can be demanded by citizens of the country but as a well laid out mandate or vision for the state in its policy making. However, they have been held to be the markers of reasonableness in a law. That is a law’s validity, when brought into question, they have been understood as the basis for the law’s rationale.
In the case of Bandhua Mukti Morcha vs. Union of India, the court read DPSPs and rights claimed under fundamental rights together. The court, while dealing with the issue of inhuman working conditions in quarries, said as follows:
“It is a problem which needs urgent attention of the Government of India and the State Governments and when the Directive Principles of State Policy have obligated the Central and the State Governments to take steps and adopt measures for the purpose of ensuring social justice to the have-notes and the handicapped, it is not right on the part of the concerned governments to shut their eyes to the inhuman exploitation to which the bonded labourers are subjected.”
The court drew a connection between the values in Article 21 and the goals prescribed in DPSPs. The court said –
“This right to live with human dignity, enshrined in Article 21derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Article 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials.”
The constitution shifts its interest from basic necessities enshrined in the Fundamental Rights for a society to exist to better conditions for such a society’s functioning in the DPSPs. These DPSPs, as courts have interpreted, might not be enforceable but they surely validate different measures undertaken by the state.
In Andhra Pradesh, for example, a scheme of cash transfer to the women who send their child to school can be a validation of DPSP enshrined in Article 39(e) and Article 39(f). A scheme to offer financial assistance to Scheduled Castes in the state to foster entrepreneurial spirit among them can be considered as following the Directive Principle of State Policy under Article 46 that directs the state to promote economic and educational interests of Scheduled Castes, Scheduled Tribes and other weaker sections.
The entire Mahatma Gandhi National Rural Employment Scheme [MNREGS] can be considered as the state following the direction given under Article 41 that directs the state to secure its people the right to work. The pensions given to senior citizens and people with disabilities, and financial assistance to unemployed youth, across the country in different states falls under Article 41. Provision of food supplies to people across the country every month at subsidised rates can be considered as the state following the directions issued in DPSPs under Article 47 which directs the state to raise the level if nutrition and the standard of living and to improve public health. The power to make the decisions to follow the DPSPs and other welfare measures is given to the government, by the constitution.
And whoever wants to get elected to lead the government, makes election promises. Some of these poll promises are now termed as ‘freebies’ by some within the political spectrum since they are given “for free”, to the public. The one example that resurfaces is the Tamil Nadu’s political parties promising Televisions, Grinders and some other household appliances to the electorate and acting on them once they formed the government.
Welfarist Poll Promises or Freebies?
Depending on whom you ask, some might call Indian National Congress’ 2019 poll promise of Rs. 70,000 a year direct cash transfer to lower income families as a ‘freebie.’
Some might say the current NDA government’s cash transfers in the name of Kisan Yojana are freebies. Some question the efficacy of Direct Benefit Transfers and some question the bringing of finances of the state to have a sustained existence.
The Representation of People’s Act, 1951 states that bribery of the voter by saying any gratification given to the vote for casting his vote or refraining from doing so would be corrupt practice. However, it would not be a corrupt practice if that is a promise made to the entire state for them to elect the government to power, as is evident from the elections we have had in the country.
In Subramaniam Balaji vs State of Tamil Nadu, the Supreme Court has expressed its agreement to the argument that state shall decide which measure is to adopt to improve the living standards of its people. The court stated
“What was once considered to be a luxury can become a necessity. The concept of livelihood is no longer confined to a bare physical survival in terms of food, clothing and shelter, but also now must necessarily include some provision for medicine, transport, education, recreation etc. How to implement the directive principles of State Policy is a matter within the domain of the Government, hence, the State distributing largesse in the form of distribution of colour TVs, laptops, mixer-grinders etc. to eligible and deserving persons is directly related to the directive principles of the State Policy.”
The court’s judgement in Subramanaim Balaji was to be referred to a three-judge bench by the SC for reconsiderations. However, the reasoning in this case remains sound since it is only the state that can understand the constitutional ends it needs to fulfil, and it is important for the state to have the power to figure out the means itself.
Conclusion
Welfare, in all its facets, is enshrined in the Indian constitution under various provisions, the sub-stratum of social justice. The constitution is, as much a social and economic document, as it is a political one. While the discussion on the state’s finances as it spends on welfare is an important one, it needs to be discussed by the electorate and other political actors rather than the judiciary. The branding of welfare measures as freebies only makes the discussion reductive and unfruitful.
(The author is a legal researcher currently giving his post graduate examinations)
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