A Fallacy is a mistaken belief, especially one based on unsound arguments.
In the movie CASABLANCA, the Protagonist Humphrey Bogart is asked by the German Major, in charge of the then occupied territory of French Morocco: “So what brought you to Casablanca?”
Without hesitation our hero says “For the waters.” (Meaning water springs and spas)
Major Strasser says: “ But there aren’t any spas around here.”
Bogart says, “Oh, I was misinformed.”
Or so the conversation goes. Please don’t pick holes on my recollection of that scene, as that would derail a whole lot of hypotheses I’ve built around it‼️
The point is that Bogart resented the presence of the Germans, and Major Strasser in particular, in Casablanca where Bogart was successfully running his ‘gin joint’ with an adjunct gambling den. The Major had collected, or at least from the tone of Bogart, it appears that Bogart suspected that Strasser had a good idea of Bogart’s colourful unsavoury past and wanted to gain an upper hand over Bogart by either forcing him to tell a lie about his own past and catch him, which Strasser attempted, or admit his past.
Bogart being Bogart, through a line well written by the script writer states: ‘He was misinformed’, thus disengaging our hero from the trap laid by the German Major.
In fact the audience knew that the reply of Bogart was a FALLACY.
Likewise DIRECTIVE PRINCIPLES OF STATE POLICY in the IV part of the Constitution, which starts with Article 36, titled ‘Definition’ raises hopes of a detailed explanation of what Directives of State Policy meant, however it peters to adopting the meaning of ‘State’ as defined in Part III of the CoI.
It is through Article 37 that the larger picture is accepted and the functions of DPs are explained.
37.Application of the principles contained in this Part
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.
There are the following prescribed under this Article, which are:
0. That they are not enforceable by ANY COURT.
0. That the principles laid down are FUNDAMENTAL in the governance of the country; and
0. That a duty has been cast in the State to apply these principles in making laws.
What emerges out of these prescriptions is that neither the state (except through legislating on these principles) nor individuals or entities have recourse to the courts for implementing these ‘principles’ .
Secondly, a duty has been cast on the State to carry out their Legislative mandate under the guidance of these principles.
Read together, it means and only means that in the absence of a Law, these principles cannot be invoked by the Government (means the Executive) nor by individuals or entities.
Whereas, I have seen a Harvard Professor say that these principles are meant to be implemented by the Government, implying that even in the absence of a LEGISLATED LAW, the government could invoke desultorily one of those principles and start implementing their likes and dislikes, as if they are duty bound to implement the same.
I suppose the protection from misuse of this Article is that the even if laws are made ostensibly in pursuance of a Directive Principle, the Law enacted would be subject to the touchstone of the Guarantees granted under the Constitution, like the Fundamental Rights and in the event of a conflict between those legislations and fundamental rights, a fine balance has to be struck by the Higher Judiciary and pronounced on accepted doctrines and principles.
Directive Principles, especially relating to the slaughter of Cow, calf, milch & draught cattle; environmental issues; uniform civil code; and separation of powers have become tools in the hands of self proclaimed implementers of the Directive Principles, which is tragic. .
In the process of Nation building all these issues cannot be taken up at one go, as that would be a severe strain on the resources of the State; and issues which need a gestation period cannot be prematurely taken and forced on the populace, therefore it should be left to the wisdom of the Legislators to legislate. And once the enactment passes the legislative sanctions, the Government and the people would be vested with duties, liberties and rights but not before that.
Clutching at Directive Principles to advance their lopsided agenda, with a partisan motive by a lumpen few, is nothing but intellectual terrorism.
Let us become aware to identify and distinguish a motivated deleterious agenda disguised as an enticing fallacious Constitutional mandate.
The phrase ‘making of laws’ is wide enough to include their interpretation and therefore the courts must inferpret the laws in the ‘light of the Directive Principles’ (Balwant Raj Vs. the Union of India (Uoi) – Supreme Court Judgment 1966 – Dhawan .J)
This interpretation of the law doesn’t appear to be tenable in the light of the clear words of the provisions of the Article which says ‘the duty of the State in applying …’; and the State doesn’t include the Courts. Secondly, Judicial Pronouncements cannot be called as ‘making of laws’ rather they are meant to be ‘interpreting the provisions of law’.
September 28, 2018