On March 30th 1947, the Constituent Assembly’s Sub-Committee on Fundamental Rights turned ‘to the examination of the directive principles of social policy’. This was the first time in the Indian constitution-making process that the framers formally decided to work towards adopting a set of rights that were not justiciable (legally un-enforceable).
Interestingly, it was the question of justiciability of fundamental rights that animated the first preliminary meeting of the Sub-Committee in late February 1947. The Sub-Committee adjourned this initial meeting rather quickly and decided to reconvene after three weeks. During this time, members of the Sub-Committee would draft their individual proposals on the form and content of the Constitution’s fundamental rights chapter and put them forward for consideration.
Four members – Alladi Krishnaswami Ayyar, K.M. Munshi, Harnam Singh and B.R. Ambedkar – submitted proposals in March 1947. Two of these proposals – Ayyar’s and Munshi’s – closely engaged with the issue of justiciability of fundamental rights.
The very first line of Ayyar’s proposal read ‘A distinction has necessarily to be drawn between rights which are justiciable and rights which are merely intended as a guide and directing state policy. The distinction has been maintained and indicated in the recent Irish Constitution…’ Munshi too wanted a distinction between the two sets of rights but was skeptical about including non-justiciable rights in the constitutional text.
In addition to four proposals, the Committee also had access to a fifth that was circulated to a couple of months earlier. This was written by Constitutional Adviser to the Assembly, B.N. Rau, who also sat in on the Sub-Committee’s meetings. In his note, Rau split fundamental rights into two parts – legally enforceable and non-legally enforceable rights. The latter set of rights, Rau argued, while are ‘merely moral precepts for the authorities of the State’ still ‘have at least an educative value’.
In light of these proposals, the Assembly seemed convinced on splitting the fundamental rights section, and the overall consensus was that non-justiciable rights should be included in the Consitution.
On March 30th, after having finished with the justiciable fundamental rights, the Committee began work on the non-justiciable set. These were broadly what one would term as socio-economic rights and among other things directed the State to ensure equal pay for equal work, strength and health of workers and promote the welfare of the whole people.
On the next day, the Committee inserted a preamble that clearly demarcated the roles of the state and the judiciary with regards to the non-justiciable rights -
The Principles of social policy set forth in this Part are intended for the general guidance of the appropriate legislatures and governments in India…The application of these principles in legislation and administration shall be the care of the State and shall be cognizable by any court
Three days later, the Sub-Committee submitted its draft report to the Advisory Committee containing two sets of fundamental rights – justiciable and non – justiciable. The provisions in this Draft Report, over the next two years, would be revised multiple times in the Committee Stages and debated vigorously in Constituent Assembly. Finally, the provisions settled into a separate section of the Constitution in the form and name that we find them today in the Constitution of India, 1950: Part IV - Directive Principles of State Policy.