In a recent essay, Achin Vanaik claims that the Indian Constitutionbetrayed its elitist character by placing some principles concerning socio-economic justice in the non-justiciable section of the directive principles, not in the binding fundamental rights’. In a similar vein, Neera Chandoke asks: ‘how is it that the Constituent Assembly dropped social rights, or rather downgraded them to Directive Principles of State Policy?

For Vanaik and Chandoke, the Constitution’s ‘elitist character’ and the ‘downgrade’ of social rights respectively, could be attributed to fact that the Directive Principles of State Policy (DPSPs) were not made legally enforceable. Presumably, the Indian Constitution would be less elitist, and social rights would not have been downgraded if the DPSPs were legally enforceable.

Similar views were put forward in the Constituent Assembly. K.T. Shah argued that by keeping the DPSPs legally unenforceable ‘we without making them imperative obligations of the State towards the citizen, we would be perpetrating a needless fraud, since it would provide an excellent window-dressing without any stock behind that dressing.’ Naziruddin Ahmad did not want any ‘pious principles’ to be included in the Constitution ‘unless there is the backing of law and they are also made justiciable’.

So why did the Constituent Assembly make the social-economic principles in the DPSPs legally unenforceable?

The Assembly’s Sub-Committee on Fundamental Rights split fundamental rights into two categories: justiciable and non-justiciable. This decision seems to have been largely influenced by B.N Rau’s submission to the Committee.

Rau, the Assembly’s constitutional adviser, in his note split fundamental rights into two categories: legally enforceable and legally unenforceable. He felt that the latter, broadly socio-economic principles, were not suitable for legal enforcement for two reasons. First, the implementation of these principles required positive state action which could be guaranteed ‘only so far as action is practicable’. Rau is alluding to financial, administrative and other constraints that the State might face in, say, providing housing to all.

Second, Rau believed that socio-economic domain should not be under the purview the judiciary:  'The Courts, manned by an irremovable judiciary not so sensitive to public needs in the social or economic sphere as the representatives of a periodically elected legislative body, will, in effect, have a veto on legislation exercisable at any time and at any instance of any litigant.'.

Like Rau, B.R. Ambedkar, Chairman of the Drafting Committee, preferred democratic institutions to dominate in socio-economic matters. In the Assembly, he defended the decision to make the DPSP’s legally unenforceable.

He said that the breach of directive principles by politicians may not have to be answered in a court of law. However, he continued, politicians would ‘certainly have to answer for them before the electorate at election time’. Ambedkar emphasised that courts and legal enforceability were not the be all and end all in constitutional matters, at least with regards to socio-economic principles.

Ambedkar’s invocation of the ‘electorate’ and ‘election time’ and Rau’s mention of ‘elected legislative body’ is revealing. For Ambedkar and Rau, it was the executive and the legislatures that had to take the lead in the implementation of socio-economic principles. Both seemed to want democratic politics to mobilise around these DPSPs. This would not be possible if these principles were made legally enforceable, as the courts would then be involved.

In the end, the Assembly adopted DPSPs in a form that encoded an institutional division of labour between the courts, and the executive and legislature, prescribed in Article 37.

Vanaik is right in identifying the DPSPs as the site where ‘Constitution’s claim to a progressive social vision resides’. However, he does not grasp that in making these principles legally unenforceable, the framers of the Constitution wanted this social vision to be achieved through democratic politics and institutions, not the courts.