Understanding 'Shall' And 'Shall Endeavour' In Directive Principles Under Indian Constitution

“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 not be recognized by any court.”[iii]

Thus, the Preamble for the first time made the directive non-enforceable and a positive obligation of the State. During the debate, there was stiff opposition from some of the members, especially from Shri KT Shah, Ms. Rajkumari Amrit Kaur and Mrs. Hansa Mehta, on the implementation and effectiveness of the directive principles. Later, the Committee redrafted the opening clause as:

“The principle set forth in this Part are intended for the guidance of the State. While these principles shall not be cognizable by any court, they are nevertheless fundamental in the governance of the country and their application in the making of the laws shall be the duty of the State.”[iv]

During the debate, Dr. B.R. Ambedkar emphasized that the directive principles are in the nature of directions to the future legislature and future executive.[v] On this premise, every word and phrase used in these provisions becomes significant because a limited number of discussions were done on the clauses. Since the provisions are framed as a constitutional obligation for future legislature, one of the most intriguing aspects lies in the choice of language used in the provisions. The framers have employed the words “shall” and “shall endeavour”. At first instance, the choice of words may seem like minor linguistic differences as part of a constitutional design. However, the words determine the degree of obligation on the State. This article explores the intentions of the framers and the distinct implications of the words “shall” and “shall endeavour”.

The Irish Influence on Indian Constitution and Divergence:

The constitutional design adopted by the framers for Part IV reflects the influence of the Irish model. Article 45 of the Irish Constitution states:

“The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the case of the Oireachtas exclusively, and shall not be cognisable in any Court under any of the provisions of this Constitution.”

The Irish Constitution is explicit in two respects: first, general guidance meant solely for the legislature and second, absolute exclusion of judicial cognizance. The deliberate exclusion of judicial oversight in Ireland leaves the legislature with complete freedom to determine how and when these principles should be applied, without judicial interference. In contrast, the Indian Constitution, although it drew inspiration from Ireland, significantly altered the approach. Article 37 of the Indian Constitution provides:

“The provisions contained in this Part shall not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”

This wording performs two significant functions: first, it establishes non-enforceability of directive principles, similar to the line of Ireland and second, the wordings allow cognizance of the directive principles in the judicial reasoning and constitutional interpretation by the judiciary. This subtle but significant difference between the Irish and the Indian Constitution ensures that although DPSPs in India are non-justiciable, however, they may influence the judicial reasoning and interpretation. Over the years, the Supreme Court and High Courts have referred to DPSPs[vi] for various aspects like interplay of fundamental rights and directive principles[vii], interpreting various constitutional and statutory provisions,[viii] striking down of laws enacted[ix], etc.

Choice of Words under Part IV: “Shall” and “Shall Endeavour”

It is argued that the words used in Part IV were a deliberate exercise and not a casual and generic approach. The conscious and calculated exercise reflects the framers' foresight to provide the scope for legislative action and at the same time allow discretion without undermining the core principles. The choice of words also recognizes the practical limitations of governance, such as economic capacity, administrative feasibility, and socio-political circumstances. It is precisely the reason that some directives are framed as absolute commands (“shall”), while others are aspirational (“shall endeavour”) in nature.

There are directives that employ the word “shall”, denoting a bindingness of the directive. In legal interpretation, “shall” generally imposes a mandatory duty and an obligation that must be fulfilled without delay. Similar in approach, Articles in Part IV employ “shall” to underscore their imperative nature. For instance, Article 39 employs the phrase “shall direct its policy”, directing the State to secure specific economic objectives, Article 46 requires that the State “shall promote” the educational and economic interests of weaker sections, particularly the Scheduled Castes and the Scheduled Tribes. Likewise, Article 49 stipulates that the protection of monuments and objects of artistic or historic interests by employing the phrase “shall be the obligation”. The choice of words was consciously made with the aim to limit the State's discretion and affirm the non-optional nature of the directive principle. The language was deliberately crafted to ensure that certain foundational principles of governance (as reflected under Articles 39, 40, 42, etc.) cannot be postponed.

In contrast, Part IV employs the phrase “shall endeavour” allowing a degree of flexibility in framing the state policy. The choice of word “shall endeavour” acknowledges both the significance of the directive principles along with the constraints like economic capacity, socio-political readiness, for the future legislature or executive. To address these constraints, the framers gave a limited discretion to the State by employing the phrase “shall endeavour”. In this category, Article 41 provides that the State “shall, within the limits of its economic capacity and development, make effective provision” to secure certain directives as mentioned. Similarly, Article 44 requires that the State strive for a uniform civil code by employing the phrase “shall endeavour to secure”. The use of the phrase “shall endeavour” requires the future legislature or executive to take sincere and reasonable steps to secure the directive principles, while allowing the State discretion to allocate resources, methods, and processes to secure such directives. The discretionary nature of these directives is further evident from the Constituent Assembly's rejection of an amendment that sought to impose fixed timelines for their implementation.[x]

Part IV of the Constitution reflects the most thoughtful aspects of constitutional design. This is further reinforced by the careful use of “shall” and “shall endeavour”. Provisions where the phrase “shall” is used require immediate attention from the State, whereas the phrase “shall endeavour” allows the State to frame policies in accordance with its capacity, resources and consensus.

Atul Kumar Dubey is a Research Scholar at Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur. Views are personal.

[i] Constitutional Proposals of the Sapru Committee, Appendix II, Chapter VII, pp. 256-272.