Author Name:   shraddha ojha

this article helps reader to understand the true meaning of welfare state. also give answer to the question whether India is a welfare state or not.

 

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Administrative Law:

Concept of Welfare State and Its Relevance in Indian Scenario

 

                                  

 

Administrative discretion in simple words is to know through law what is just and it helps in determining whether an action is necessary or not regarding the certain events and happenings in the modern world scenario. Officials have authority to act coupled with certain restrictions and accountability.

 

UNDERSTANDING WELFARE STATE

 

A welfare state is a concept of government where the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those unable to avail themselves of the minimal provisions for a good life. The general term may cover a variety of forms of economic and social organization.[1]

There are two main interpretations of the idea of a welfare state:

• A model in which the state assumes primary responsibility for the welfare of its citizens. This responsibility in theory ought to be comprehensive, because all aspects of welfare are considered and universally applied to citizens as a "right".
• Welfare state can also mean the creation of a "social safety net" of minimum standards of varying forms of welfare.[2]

In the strictest sense, a welfare state is a government that provides for the welfare, or the well-being, of its citizens completely. Such a government is involved in citizens lives at every level. It provides for physical, material, and social needs rather than the people providing for their own. The purpose of the welfare state is to create economic equality or to assure equitable standards of living for all.[3]

The welfare state provides education, housing, sustenance, healthcare, pensions, unemployment insurance, sick leave or time off due to injury, supplemental income in some cases, and equal wages through price and wage controls. It also provides for public transportation, childcare, social amenities such as public parks and libraries, as well as many other goods and services. Some of these items are paid for via government insurance programs while others are paid for by taxes.

 

 TWO FORMS OF THE WELFARE STATE

 

There are two ways of organizing a welfare state:

According to the first model the state is primarily concerned with directing the resources to “the people most in need”. This requires a tight bureaucratic control over the people concerned, with a maximum of interference in their lives to establish who are "in need" and minimize cheating. The unintended result is that there is a sharp divide between the receivers and the producers of social welfare, between "us" and "them", the producers tending to dismiss the whole idea of social welfare because they will not receive anything of it. This model is dominant in the US.[4]

According to the second model the state distributes welfare with as little bureaucratic interference as possible, to all people who fulfill easily established criteria (e.g. having children, receiving medical treatment, etc). This requires high taxing, of which almost everything is channeled back to the taxpayers with minimum expenses for bureaucratic personnel. The intended – and also largely achieved – result is that there will be a broad support for the system since most people will receive at least something. This model was constructed by the Scandinavian ministers Karl Kristian Steincke and Gustav Möller in the 30s and is dominant in Scandinavia.[5]

 

 

 THEORY OF WELFARE STATE

 

The genesis and development of the concept of the welfare state lay in the interaction of ideas, mainly, conservatism, liberalism and socialism, in the unique British historical setting of a qualitative change from administrative to ameliorative legislation. The formative period of the concept involved an interesting application of empiricism and ideology to the problem of poverty. The welfare state, conceived within the liberal framework, involved a social consensus on a wide spectrum of socio economic policies. Two sociological factors largely contributed to the growth of the concept: first, increasing prosperity that produced a revolution of rising expectations; and second, the hope and the fear generated by the newly acquired manhood franchise. The faith in piecemeal social engineering, bereft of dogma, set the precedent for expanding municipal activity and government’s interest in social reform. This, indeed, was an ominous beginning.[6]

 

State help and self- help, in this context, became the two focal points of the ‘principled’ discussion on the subject of the welfare state. Herbert Spencer’s liberalism, an apotheosis of self help, as a deductive system, had deeper implications for welfare state activity. The notion that Spencer was opposed to welfare state is a false one. His doctrine of non- intervention and positivistic connotation, prima facie inconsistent with laissez- faire, but consistent with the view of state help as complimentary to self- help.[7]

 

In economics, laissez-faire describes an environment in which transactions between private parties are free from state intervention, including restrictive regulations, taxes, tariffs and enforced monopolies.[8]

The phrase is French and literally means "let do", but it broadly implies "let it be", or "leave it alone."

The problem of the period was to search some criteria for judging the compatibility, or otherwise, of the various schemes of state welfare, vis a vis the idea of self help. The problem of the period was to search some criteria for judging the compatibility, or otherwise, of the various schemes of state welfare, Vis a Vis the idea of self help.[9]

 

The process of laying the foundations of the concept of the welfare state, the British political system acquired a remarkable capacity of preserving its liberal identity against the alien ideas of French and German socialism and Bismarckian model of the welfare state. British resistance to utopian ideals and adaptation to new challenges and responsibility was phenomenal. Political leaders of all hues and complexions were falling prey to democratic compulsions and were redefining their ideals. In relation to matters affecting the labour and the poor, they were abandoning their pitched positions in response to pragmatism. Transport, banking, agriculture, industry, trade; in a word, a large segment of economy, were subject to regulation.[10]

Although there never was at any time a laissez- faire state, as the existence of Elizabeth Poor Law and factory legislation indicate, it is true that the era of “collectivism”- a mistaken term for regulatory capitalism- started in the 1870’s whose first lasting effect could be seen in an increased legislative activity at the national level in the last decade of the last century. By the time Great War intervened, the statutes had covered many areas of social reform and the pattern of change had set in, more spectacularly, by the ‘people’s budget’, a landmark in the march towards the welfare state.[11]

The seeds of the concept lay in the problem of poverty. Its incidence and range assumed the form of the recurring Condition of England Question, which called for empirical investigation and verification. The basic element in the growth of the concept of the welfare state, however, was the two-fold realization of, one, the inadequacy of private charity, philanthropy and the poor law to meet the pressing demands of the poor who had acquired the new voting power; and two, the increasing capacity of the public exchequer to bear welfares burdens. The state helped, to the extent it was practicable, both in the formulation and solution of the felt and publicized problems of want, disease, ignorance, squalor and misery, in the backdrop of the widespread fear of an impending revolution, which added urgency to efforts for solving these problems.[12]

The interaction of empiricism and ideology- conservative, liberal and socialist- predicated the concept of the welfare state, embodying a consensus on a wide spectrum of socio- economic policies. The development had been distinctive in several ways. It occurred in a free society where men projected their interests and ideas into the arena of conflict and where governments tended to take decisions by discussions and empirical investigation of problems. The welfare state evolved in response to the peculiar conditions of a maturing economy, laissez- faire attitude and traditions of enlightened self- interest.[13]

 

 

The Directive Principles of State Policy is guidelines to the central and state governments of India, to be kept in mind while framing laws and policies. They are enumerated in part iv of the constitution of India. i.e. directive principles of state policy. They are the instruments of instructions in the governance of the country. The directive principles lay down certain economic & social policies to be pursued by the various governments in India. They are classified as social & economic charter, social security charter& community welfare charter.[14]

These provisions, contained in Part IV of the Constitution of India, are not enforceable by any court, but the principles laid down therein are considered fundamental in the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country. The principles have been inspired by the Directive Principles given in the Constitution of Ireland and also by the principles of Gandhism; and relate to social justice, economic welfare, foreign policy, and legal and administrative matters.[15]

It is by enacting “directive principles of state policy” in part IV of the constitution that we endeavored to create a welfare state.[16]

In a sense the directive principles of state policy epitomize the ideals, the aspirations, the sentiments, the precepts, and the goals of our entire freedom movement. In another sense, they represent a compromise between the ideals and reality. In the initial stages of the constitution making there was a strong current of opinion to make the directive principles as much justifiable as the fundamental rights. But it dawned on the constituent assembly that it would not be practicable to make the positive rights justifiable. Thus ultimately the non- justifiable directive principles were enacted in part IV of the constitution.  T.T.Krishnamachari called the non- justifiable directive principle as “a veritable dustbin of sentiment sufficiently resilient to permit any individual of this house to ride his hobby- horse into it. [17]

Socialist ideals and percepts of national movement found expression in a number of articles. Article 39 embodies the percepts of national movement thus: ‘the state shall 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. The socialist ideals of the national movement and the national goals are embodied in article 39 which runs:

The state shall, in particular, direct its policy towards securing:-

       i.            That the citizens, men and women equally, have the right to an adequate means to livelihood;

    ii.            That the ownership and control of the material resources of the community are so distributed as best to sub serve the common good;

 iii.            That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

  iv.            That there is equal pay for equal work for both men and women;

     v.            That the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited by their age or strength; and

  vi.            Those children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and childhood and youth are protected against exploitation and against moral abandonment.[18]

 

 ECONOMIC AND SOCIAL RIGHT

The constituent assembly finding it difficult to place certain economic and social rights in the list of fundamental rights placed them in the category of directive principles. In this way the following rights found a place among the directive principles:

                         i.            Right to adequate means of livelihood: article 39(a);

                      ii.            Right against economic exploitation: article 39(b);

                   iii.            Right of both sexes to equal pay for equal work: article 39 (d);

                    iv.            Right to work;

                       v.            Right to leisure and rest: article 43;

                    vi.            Right to public assistance in case of unemployment, old age or sickness: article 42;

                 vii.            Right to education: article 41;

              viii.            Right to just and humane conditions of work: article 42;

                    ix.            Right to maternity relief: article 42; and

                       x.            Right to compulsory and free education of children: article 45.[19]

 

THE MANEKA GANDHI CASE AND THEREAFTER

Simultaneously, the judiciary took upon itself the task of infusing into the constitutional pro­visions the spirit of social justice.  This it did in a series of cases of which Maneka Gandhi v. Union of India was a landmark. The case involved the refusal by the government to grant a passport to the petitioner, which thus restrained her liberty to travel.  In answering the question whether this denial could be sustained without a predecisional hearing, the court proceeded to explain the scope and content of the right to life and liberty.  In a departure from the earlier view, the court asserted the doctrine of substantive due process as integral to the chapter on fundamental rights and emanating from a collective understanding of the scheme underlying articles 14 (the right to equality), 19 (the freedoms) and 21 (the right to life).  The power the court has to strike down legislation was thus broadened to include critical examination of the substantive due process element in statutes.[20]

Once the court took a broader view of the scope and content of the fundamental right to life and liberty, there was no looking back.  Article 21 was interpreted to include a bundle of other incidental and integral rights, many of them in the nature of ESC rights. 

In Francis Coralie Mullin the court declared:

“The right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.  The magnitude and components of this right would depend upon the extent of economic develop­ment of the country, but it must, in any view of the matter, include the bare necessi­ties of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.”[21]

 

 RIGHT TO WORK

Article 41 of the Constitution provides that “the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to educa­tion and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.” Article 38 states that the state shall strive to pro­mote the welfare of the people and article 43 states it shall endeavor to secure a living wage and a decent standard of life to all workers.  One of the contexts in which the problem of enforceability of such a right was posed before the Supreme Court was of large-scale aboli­tion of posts of village officers in the State of Tamil Nadu in India.  In negating the conten­tion that such an abolition of posts would fall foul of the DPSP, the court said:[22]

It is no doubt true that Article 38 and Article 43 of the Constitution insist that the State should endeavor to find sufficient work for the people so that they may put their capacity to work into economic use and earn a fairly good living.  But these articles do not mean that everybody should be provided with a job in the civil service of the State and if a person is provided with one he should not be asked to leave it even for a just cause.  If it were not so, there would be justification for a small per­centage of the population being in Government service and in receipt of regular income and a large majority of them remaining outside with no guaranteed means of living.  It would certainly be an ideal state of affairs if work could be found for all the able-bodied men and women and everybody is guaranteed the right to participate in the production of national wealth and to enjoy the fruits thereof.  But we are today far away from that goal.  The question whether a person who ceases to be a government servant according to law should be rehabilitated by being given an alternative employment is, as the law stands today, a matter of policy on which the court has no voice.[23]

But the court has since then felt freer to interfere even in areas which would have been con­sidered to be in the domain of the policy of the executive.  Where the issue was of regulariz­ing the services of a large number of casual (nonpermanent) workers in the posts and tele­graphs department of the government, the court has not hesitated to invoke the DPSP to direct such regularization.  The explanation was:

Even though the above directive principle may not be enforceable as such by virtue of Article 37 of the Constitution of India, it may be relied upon by the petitioners to show that in the instant case they have been subjected to hostile discrimination.  It is urged that the State cannot deny at least the minimum pay in the pay scales of regu­larly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees.  We are of the view that such denial amounts to exploitation of labor.  The Government cannot take ad­vantage of its dominant position, and compel any worker to work even as a casual laborer on starvation wages.  It may be that the casual laborer has agreed to work on such low wages.  That he has done because he has no other choice.  It is poverty that has driven him to that state.  The Government should be a model employer.  We are of the view that on the facts and in the circumstances of this case the classifica­tion of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corre­sponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable . . . It is true that all these rights cannot be extended simultaneously.  But they do indicate the socialist goal.  The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country.  Of those rights the question of security of work is of utmost importance.[24]

In Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, a PIL by an NGO highlighted the deplorable condition of bonded laborers in a quarry in Haryana, not very far from the Supreme Court.    A host of protective and welfare-oriented labor legislation, including the Bonded Labour (Abolition) Act and the Minimum Wages Act, were being observed in the breach.  In giving extensive directions to the state government to enable it to discharge its constitutional obligation towards the bonded laborers, the court said:[25]

The right to live with human dignity enshrined in Article 21 derives 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 a 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 has the right to take any action which will deprive a person of the enjoyment of these basic essentials.  Since the Directive Principles of State Policy contained in clauses (e) and (f) of Article 39, Articles 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity, but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation, for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State.[26]

Thus the court converted what seemed a non-justifiable issue into a justifiable one by in­voking the wide sweep of the enforceable article 21.  More recently, the court performed a similar exercise when, in the context of articles 21 and 42, it evolved legally binding guide­lines to deal with the problems of sexual harassment of women at the work place.[27]

The right of workmen to be heard at the stage of winding up of a company was a contentious issue.  In a bench of five judges that heard the case the judges that constituted the majority that upheld the right were three.  The justification for the right was traced to the newly inserted article 43-A, which asked the state to take suitable steps to secure participation of workers in management.   The court observed:

It is therefore idle to contend 32 years after coming into force of the Constitution and particularly after the introduction of article 43-A in the Constitution that the workers should have no voice in the determination of the question whether the enterprises should continue to run or be shut down under an order of the court.   It would indeed be strange that the workers who have contributed to the building of the enterprise as a centre of economic power should have no right to be heard when it is sought to demolish that centre of economic power.[28]

 

 RIGHT TO SHELTER

Unlike certain other ESC rights, the right to shelter, which forms part of the right to an ade­quate standard of living under article 11 of the ICESCR, finds no corresponding expression in the DPSP.  This right has been seen as forming part of article 21 itself.  The court has gone as far as to say, “The right to life . . . would take within its sweep the right to food . . . and a reasonable accommodation to live in.”[29] However, given that these observations were not made in a petition by a homeless person seeking shelter, it is doubtful that this declaration would be in the nature of a positive right that could be said to be enforceable.  On the other hand, in certain other contexts with regard to housing for the poor, the court has actually refused to recognize any such absolute right.[30] 

In Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 the court held that the right to life included the right to livelihood.  The petitioners contended that since they would be deprived of their livelihood if they were evicted from their slum and pavement dwellings, their evic­tion would be tantamount to deprivation of their life and hence be unconstitutional.   The court, however, was not prepared to go that far.  It denied that contention, saying:

No one has the right to make use of a public property for a private purpose without requisite authorization and, therefore, it is erroneous to contend that pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon . . . If a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his use of the pavement would become unauthorized.[31]

Later benches of the Supreme Court have followed the Olga Tellis dictum with approval.  In Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 the court held that the Municipal  Corpo­ration of Delhi had no legal obligation to provide pavement squatters alternative shops for rehabilitation as the squatters had no legal enforceable right.  In Sodan Singh v. NDMC , (1989) 4 SCC 155 a constitution bench of the Supreme Court reiterated that the question whether there can at all be a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trade must be answered in the negative.  These cases fail to account for socioeconomic compulsions that give rise to pavement dwelling and restrict their examina­tion of the problem from a purely statutory point of view rather than the human rights perspective.[32]

Fortunately, a different note has been struck in a recent decision of the court.  In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 123 in the context of eviction of encroach­ers in a busy locality of Ahmedabad city, the court said:

Due to want of facilities and opportunities, the right to residence and settlement is an illusion to the rural and urban poor.  Articles 38, 39 and 46 mandate the State, as its economic policy, to provide socio-economic justice to minimize inequalities in income and in opportunities and status.  It positively charges the State to distribute its largesse to the weaker sections of the society envisaged in Article 46 to make socio-economic justice a reality, meaningful and fruitful so as to make life worth living with dignity of person and equality of status and to constantly improve excellence.  Though no person has a right to encroach and erect structures or otherwise on foot­paths, pavements or public streets or any other place reserved or earmarked for a public purpose, the State has the constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their heads to make the right to life meaningful.[33]

 

 RIGHT TO HEALTH

The right to health has been perhaps the least difficult area for the court in terms of justifiability, but not in terms of enforceability.  Article 47 of DPSP provides for the duty of the state to improve public health.  However, the court has always recognized the right to health as being an inte­gral part of the right to life. The principle got tested in the case of an agricultural laborer whose condition, after a fall from a running train, worsened considerably when as many as seven government hospitals in Calcutta refused to admit him as they did not have beds vacant.  The Supreme Court did not stop at declaring the right to health to be a fundamental right and at enforcing that right of the laborer by asking the Government of West Bengal to pay him compensation for the loss suffered.  It directed the government to formulate a blue print for primary health care with particular reference to treatment of patients during an emergency.[34]

In Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42 the court, in a PIL, tackled the problem of the health of workers in the asbestos industry.  Noticing that long years of expo­sure to the harmful chemical could result in debilitating asbestosis, the court mandated com­pulsory health insurance for every worker as enforcement of the worker’s fundamental right to health.  It is again in PIL that the court has had occasion to examine the quality of drugs and medicines being marketed in the country and even ask that some of them be banned.[35]

A note of caution was struck when government employees protested against the reduction of their entitlements to medical care.  The court said:

No State or country can have unlimited resources to spend on any of its projects.  That is why it only approves its projects to the extent it is feasible.  The same holds good for providing medical facilities to its citizens including its employees.  Provi­sion on facilities cannot be unlimited.  It has to be to the extent finances permit.  If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same.  The principle of fixation of rate and scale under the new policy is justified and cannot be held to be violative of article 21 or article 47 of the Constitution.[36]

 

 RIGHT TO EDUCATION

Article 45 of the DPSP, which corresponds to article 13(1) of the ICESCR, states, “The State shall endeavor to provide, within a period of ten years from the commencement of this Con­stitution, for free and compulsory education for all children until they complete the age of fourteen years.”  Thus, while the right of a child not to be employed in hazardous industries was, by virtue of article 24, recognized to be a fundamental right, the child’s right to educa­tion was put into the DPSP in part IV and deferred for a period of ten years.[37]

The question whether the right to education was a fundamental right and enforceable as such was answered by the Supreme Court in the affirmative in Mohini Jain v. State of Karna­taka (1992) 3 SCC 666. The correctness of this decision was examined by a larger bench of five judges in Unnikrishnan J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645. The occasion was the challenge, by private medical and engineering colleges, to state legislation regulating the charging of “capitation” fees from students seeking admission.  The college management was seeking enforcement of their right to business.  The court expressly denied this claim and proceeded to examine the nature of the right to education.  The court refused to accept the nonenforceablity of the DPSP.  It asked:

It is noteworthy that among the several articles in Part IV, only Article 45 speaks of a time-limit; no other article does.  Has it no significance?  Is it a mere pious wish, even after 44 years of the Constitution?  Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to endeavor to pro­vide the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37.  Does not the passage of 44 years—more than four times the period stipulated in Article 45—convert the obligation created by the article into an enforceable right?  In this context, we feel constrained to say that allo­cation of available funds to different sectors of education in India discloses an inver­sion of priorities indicated by the Constitution.  The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45.  It is relevant to notice that Article 45 does not speak of the “limits of its economic capacity and development” as does Article 41, which inter alia speaks of right to education.  What has actually happened is more money is spent and more attention is directed to higher education than to—and at the cost of—primary educa­tion.  (By primary education, we mean the education which a normal child receives by the time he completes 14 years of age.)  Neglected more so are the rural sectors, and the weaker sections of the society referred to in Article 46.  We clarify, we are not seeking to lay down the priorities for the Government—we are only emphasizing the constitutional policy as disclosed by Articles 45, 46 and 41.  Surely the wisdom of these constitutional provisions is beyond question.[38]

The court then proceeded to examine how this right would be enforceable and to what extent.  It clarified the issue thus:

The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development.  By saying so, we are not transferring Article 41 from Part IV to Part III—we are merely relying upon Article 41 to illustrate the content of the right to education flowing from Article 21.  We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development.  It goes without saying that the limits of economic capac­ity are, ordinarily speaking, matters within the subjective satisfaction of the State.[39]

More caution followed.  The court’s apprehension clearly was that recognition of such a right might open the flood gates for other claims.  It clarified:

We must hasten to add that just because we have relied upon some of the directive principles to locate the parameters of the right to education implicit in Article 21, it does not follow automatically that each and every obligation referred to in Part IV gets automatically included within the purview of Article 21.  We have held the right to education to be implicit in the right to life because of its inherent fundamental importance.  As a matter of fact, we have referred to Articles 41, 45 and 46 merely to determine the parameters of the said right.[40]

In fact, the court had broken new ground in the matter of justifiability and enforceability of the DPSP.  The decision in Unnikrishnan has been applied by the court in formulating broad parameters for compliance by the government in the matter of eradication of child labor.  This it did in a PIL where it said:

Now, strictly speaking a strong case exists to invoke the aid of Article 41 of the Con­stitution regarding the right to work and to give meaning to what has been provided in Article 47 relating to raising of standard of living of the population, and Articles 39 (e) and (f) as to non-abuse of tender age of children and giving opportunities and facilities to them to develop in a healthy manner, for asking the State to see that an adult member of the family, whose child is in employment in a factory or a mine or in other hazardous work, gets a job anywhere, in lieu of the child.  This would also see the fulfillment of the wish contained in Article 41 after about half a century of its being in the paramount parchment, like primary education desired by Article 45, having been given the status of fundamental right by the decision in Unnikrishnan.  We are, however, not asking the State at this stage to ensure alternative employment in every case covered by Article 24, as Article 41 speaks about right to work “within the limits of the economic capacity and development of the State”.  The very large number of child labor in the aforesaid occupations would require giving of job to a very large number of adults, if we were to ask the appropriate Government to assure alternative employment in every case, which would strain the resources of the State, in case it would not have been able to secure job for an adult in a private sector es­tablishment or, for that matter, in a public sector organization.  We are not issuing any direction to do so presently.  Instead, we leave the matter to be sorted out by the appropriate Government.  In those cases where it would not be possible to provide job as above mentioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid Fund a sum of Rs.5000/- for each child employed in a factory or mine or in any other hazardous employment.[41]

The court, while recognizing the importance of declaring the child’s negative right against exploitation and positive right to education, chose a pragmatic approach when it came to en­forceability.  Earlier the court would have shrugged off the whole issue as not being within its domain.  That has now changed as is clear from the recent trend of cases.[42]

 

 PROTECTION TO MINORITIES AND WEAKER SECTION OF SCOIETY

Needless to say protection to minorities and weaker section of society has been the main plank on which we have tried to usher in the economic revolution. Some of the rights of minorities have found a place of pride among the fundamental rights. Article 43 directs the state to secure to all workers, by legislation, economic organization, or in any other way, a living wage; conditions of work ensuring a decent standard of life, and the full enjoyment of leisure and social and cultural opportunities. Article 47 imposes as a primary duty to raise the level of nutrition and the standard of living of its people. On the basis of these articles some of the social and labour legislation has been enacted. Article 39A provides for equitable justice and free legal aid by suitable legislation. Article 43A stipulates the participation of workers in the management of industries. Article 46 specifically lays down that the state ‘shall promote with special care the educational and economic interest of the weaker sections of the people, and, in particular, of the schedule castes and the schedules tribes, and shall protect them from social injustice and all forms of exploitations.’[43]

 

 GANDHIAN IDELAS OF PANCHAYTI RAJ; PROMOTION OF COTTAGE INDUSTRY; AND PROHIBITION

The promotion of the cottage industry and establishment of panchayti raj has been two main ideals of Gandhian philosophy. Speaking from the floor of the constituent assembly, Ambedkar observed, that there was a considerable feeling in the house in favor of governmental encouragement for the cottage industry. Similarly, there was a considerable opinion to enact in the con situation decentralization and the panchayti raj. But with emphasize on industrialization and a highly centralist federal system that was adopted, there was no alternative but to place these ideals among the directive principles. In view of this, latter part of article 43 lays down that the state shall endeavor “ to promote cottage industries on an individual or co- operative basis in rural areas.” article 40 enjoins the state to take steps to establish village panchayats.[44]

Article 47 enacts the national policy of prohibition and enjoins the state to bring about prohibition of the consumption, except for medicacinal purposes, in intoxicating drinks and of drugs which are injurious to health. This directive has been sought to be implemented from the beginning.

 

 

 

 HINDU IDEALS OF COW- PROTECTION, AND IMPROVEMENT OF AGRICULTURE AND ANIMAL HUSBANDRY

In a predominantly agricultural Hindu society of the ancient times emphasis on the protection of the cow, and other cattle connected with the agriculture was natural. In the modern India, too, a national policy against slaughter of certain category of cattle is needed. The question is not merely of the Hindu’s reverence towards cow, though religious aspect of cow protection cannot be ignored, but protection of milk cattle in a country, which is suffering from acute shortage of milk, is an imperative need. Article 48 deals with this and allied matters. It enjoins on the state “to organize agriculture and animal husbandry on modern and scientific lines and in particular, to take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.”[45]

 

 NATIONAL INTEGRATION AND PROMOTION OF INTERNATIONAL PEACE

Article 44 stipulates for a uniform civil code. This article caused considerable difficulty in the constituent assembly; it was opposed on the one side by an orthodox section of hindus and, on the other hand, by the minorities who thought that with a uniform civil code they would lose their identity. This article has not been implemented because of consistent opposition by the minorities. Only certain portions of Hindu law be reformed and codified.[46]

Article 51 lays down that the state shall endeavor to promote international peace and security, to maintain just and honorable relations between nations and to foster respect for international law and treaties and to encourage settlement of international disputes by arbitration.[47]

 

 

 MISCELLANEOUS DIRECTIVES

Article 50 enjoins that the judiciary shall be separated from the executive. To a great extent this directive has been implemented. Article 49 provides for the protection of monuments and places and objects of national importance. Article 48A for the protection and improvement of environment and safeguard of forests and wildlife.[48]

 

 

The State has made many efforts to implement the Directive Principles. The Programme of Universalisation of Elementary Education and the five year plans has been accorded the highest priority in order to provide free education to all children up to the age of 14 years. The 86th constitutional amendment of 2002 inserted a new article, Article 21-A, into the Constitution, that seeks to provide free and compulsory education to all children aged 6 to 14 years. Welfare schemes for the weaker sections are being implemented both by the Central and state governments. These include programmes such as boys' and girls' hostels for scheduled castes' or scheduled tribes' students. The year 1990-1991 was declared as the "Year of Social Justice" in the memory of B.R. Ambedkar. The government provides free textbooks to students belonging to scheduled castes or scheduled tribes pursuing medicine and engineering courses. During 2002-2003, a sum of Rs. 4.77 crore was released for this purpose. In order that scheduled castes and scheduled tribes are protected from atrocities, the Government enacted the Prevention of Atrocities Act in 1995, which provided severe punishments for such atrocities.[49]

Several Land Reform Acts were enacted to provide ownership rights to poor farmers. Up to September 2001, more than 20,000,000 acres (80,000 km²) of land had been distributed to scheduled castes, scheduled tribes and the landless poor. The thrust of banking policy in India has been to improve banking facilities in the rural areas. The Minimum Wages Act of 1948 empowers government to fix minimum wages for employees engaged in various employments. The Consumer Protection Act of 1986 provides for the better protection of consumers. The act is intended to provide simple, speedy and inexpensive redressal to the consumers' grievances, award relief and compensation wherever appropriate to the consumer. The Equal Remuneration Act of 1976, provides for equal pay for equal work for both men and women.[50] The Sampoorna Grameen Rozgar Yojana was launched in 2001 to attain the objective of gainful employment for the rural poor. The programme was implemented through the Panchayati Raj institutions.[51]

Panchayati Raj now covers almost all states and Union territories. One-third of the total number of seats have been reserved for women in Panchayats at every level; in the case of Bihar, half the seats have been reserved for women. Legal aid at the expense of the State has been made compulsory in all cases pertaining to criminal law, if the accused is too poor to engage a lawyer. Judiciary has been separated from the executive in all the states and Union territories except Jammu and Kashmir and Nagaland.[52]

India's Foreign Policy has also to some degree been influenced by the DPSPs. India has in the past condemned all acts of aggression and has also supported the United Nations’ peace-keeping activities. By 2004, the Indian Army had participated in 37 UN peace-keeping operations. India played a key role in the passing of a UN resolution in 2003, which envisaged better cooperation between the Security Council and the troop-contributing countries. India has also been in favor of nuclear disarmament.[53]

 

 WHETHER INDIA A WELFARE STATE OR NOT

Yes India is a Welfare State.. It is in its Constitutional itself has as Directive Principle and India has tried to achieve it.. But these Welfare policies are not adequately monitored and implemented. Rather it has given an effective corruption and partials. All the Government Hospitals were inadequality serviced duty to crisis of management due to policies in the Legislation. Schools run by government institutions are incompetent and in surplus. Slum dwellers signify the mass level migration and show the inadequacies in the Villages or respective states.

 

While official figures give credence to the claim that “economic growth necessarily leads

to poverty reduction”, a careful look at them tells a different story about the impact of structural adjustment and liberalization. After a decade of liberalization, the promise of ‘Economic growth with justice’ seems eternally postponed.[54]

 

An official government economic survey boasts a 6%-7% annual growth rate since the introduction of economic reforms in 1991/1992. A 2000 poverty survey shows poverty down from 36.19% in 1993/1994 to 26.10% in 1999/2000. There is increasing inequality between rich and poor and urban and rural people. Dalits2 and tribal are increasingly marginalized. Poverty in terms of total numbers has not decreased, employment opportunities have decreased, and more people are being pushed into the informal sector without any legislative protection or safety nets. Human rights violations against the tribal and Dalit communities have increased. The balance sheet after ten years raises serious questions about the ability of the present economic system to deliver distributive

Justice and promote equitable social change. Poverty and inequality the percentage of people living in poverty has declined over the last two decades (Table 1), but because of population growth, the total number of poor people has remained more or less constant. Almost 265 million Indians live below poverty line. The rural-urban poverty lines, which almost intercepted in 1987/1988, sharply widened during the decade of economic reform. Interregional disparities are alarming. According to National Sample Survey Organization (NSSO) figures, the poverty figure for Orissa is 47.15%, Bihar 42.6%, Madhya Pradesh 37.43%, Sikkim 36.55%, and Tripura 34.44%. Poverty alleviation programs have not reached the poor.[55]

 

The government views the PDS as a measure of poverty alleviation, not as a basic entitlement. It uses its increasing financial burden as an excuse for downsizing the PDS. But this food subsidy is only about 0.4% of GDP and this number has not changed for the last few decades. According to the latest economic survey, 150 million hectares of India’s

land is affected by water and wind erosion, arable land is shrinking, and investment in agriculture is declining. The livelihood of 1.6 million farmers is at risk because of the imminent opening of the poultry market. Poverty reduction strategies in India cannot succeed without a robust agricultural sector. Economic reform has weakened rather than strengthened this sector. The male-female ratio is still negative with 933 female per 1,000 males. Women hold only 8.9% of parliamentary seats. During the reform years, instances

of violence against women increased substantially. Nearly 91% of employment is in the informal sector. The employment growth rate in the formal sector has steadily declined. Child labour is rampant in India. Under-employment and feminization of the work force are important consequences of economic reforms. According to the provisional figures of Census 2001, the literacy rate has gone up to 65.38%, but at the same time nearly 25% of men (male literacy is 75.85%) and about 45% of women (female literacy is 54.16%) in India are illiterate. Government expenditure for education, which was 2.75% of GDP in

1998/1999, has declined or remained stagnant. Access to basic health care, especially in the rural areas, remains unavailable to a large majority of people. Central and state government expenditures on health, at 1.11% of GDP in 1998/1999, declined in the last decade.[56]

 

 

 INVESTMENT IN THE SOCIAL SECTOR

 

Real spending in the social sector as a percentage of GDP has decreased for the last five

years. There has been no increase in per capita investment in the social sector. The economic insecurity of this class of people seems to be contributing to the growing social paranoia and the emergence of reactionary politics in the country. Growing fundamentalism and social tension is clearly linked to growing inequality and marginalization of a large section of urban population in the liberalized market. The result has been a steady increase of human rights violations, corruption and other criminal activities, social and religious intolerance, and instances of communal violence. After a decade, liberalization has betrayed the promises of poverty alleviation and social development and created only delusions of development. The government, instead of promoting and guaranteeing human rights, social justice and people’s welfare, has abdicated and withdrawn from its responsibilities. The ten years of reform facilitated the withering away of the welfare state and left the vast majority of Indians without social and economic leverage. Sustainable social development is still a dream for most Indians.[57]

 

From the beginning of the economic reforms, the government talked about social safety nets for the poor. A National Renewal Fund (NRF) was planned with significant budgetary allocations to provide social protection for the poor and those adversely affected by the process of liberalization. In practice, the government has done little to strengthen social protection measures. Consistent attempts have been made to undermine budgetary allocations for the social sector in the name of reducing the fiscal deficit.[58]

 

 

 

 THE SOURCE OF MARGINALIZATION

 

Powerful interests are depriving tribal people of their customary rights to natural resources (land, forest, minerals and water). The result is growing land alienation, migration and displacement from land and forest. From 1951 to 1990, dams, mines, industries, and wildlife sanctuaries displaced 21.3 million people. Around 40% (8.5 million) of all displaced people are tribal, and 75% of displaced tribal have not been resettled. The tribal are also victims of a process of cultural homogenization spearheaded by the Hindu Nationalists. Cultural pluralism, a hallmark of the constitution, is under attack and violence against the tribal is on the rise. The Land Acquisition (Amendment) Act of 1984 had many flaws, and the Land Acquisition, Rehabilitation and Resettlement Bill of 2000 will further marginalize tribal communities. The prevailing hierarchical caste system in India has deprived Dalits of their share of the benefits of development. Caste and descent-base discrimination, untouchability, exploitation, and occupational immobility have contributed to the marginalization of Dalits in India. Wherever Dalits begin to organize themselves, reconstruct their identity, assert their rights, demand entitlements to land and better wages, there is a spurt of violence against them.[59]

 

 

 HUNGER AND ANEMIA

 

India.s food grain go-downs (storage silos) are overflowing with 300 million tones of food stocks, but more than a quarter of the India.s population do not get adequate food. Two-fifths of children in India are malnourished and over half of the women are anaemic. In India, poverty and hunger exist amidst an excess food grain. The Public Distribution System (PDS) leaves out large sections of the poor and vulnerable and distributes inadequate quantities of food. A shift has taken place from universal PDS to Targeted PDS (TPDS). Under TPDS, people are classified as poor, i.e. those below the poverty line (BPL), and the non-poor, i.e. those above the poverty line (APL). With this division emerged a dual pricing system, with a subsidised price for the poor and a near market price for the nonpoor. When the government raised the price of rice and wheat, BPL families had to pay 68% more for these grains and APL families paid 25% more. When procurement prices increase, the price for the poor goes up automatically. In effect, these price increases mean that many poor are excluded from PDS. Many non-poor prefer to buy on the market since the price difference is small. The bulk of PDS goes to urban areas. For example, Delhi with 1% of the population and the highest per capita income receives 5% of the grains distributed through PDS in the country. In Uttar Pradesh, Bihar and Orissa where the bulk of the rural poor live, PDS actually goes to the richer households. These ruralurban and interregional disparities add to ineffective functioning of the PDS. The PDS, which was meant to ensure food security, seems to have lost its purpose.[60]

 

 

The economic insecurity of this class of people seems to be contributing to the growing social paranoia and the emergence of reactionary politics in the country. Growing fundamentalism and social tension is clearly linked to growing inequality and marginalisation of a large section of urban population in the liberalised market. The result has been a steady increase of human rights violations, corruption and other criminal activities, social and religious intolerance, and instances of communal violence. After a decade, liberalisation has betrayed the promises of poverty alleviation and social development and created only delusions of development. The government, instead of promoting and guaranteeing human rights, social justice and people.s welfare, has abdicated and withdrawn from its responsibilities. The ten years of reform facilitated the withering away of the welfare state and left the vast majority of Indians without social and economic leverage. Sustainable social development is still a dream for most Indians. N Centre for Youth and Social Development.

 

 

 FOOD DISTRIBUTION IN RAJASTHAN

 

Several policy measures in the reform period have undermined the Public Distribution System.s (PDS) objectives of .providing food security to poor people. and .acting as a check against rising market prices.. The initiation of the Targeted PDS has only further reduced the availability of basic cereals to poor people. Out of nine districts in the sample, families in four districts received no wheat from PDS shops. The per-family allocation of sugar and kerosene declined during the last two years of the study. While the government is doing everything possible to downsize the PDS, poor families in the sample area wanted to buy more items from the system. The data collected for the study suggest that the Targeted PDS is tending toward preventing poor families from receiving wheat at lower prices. The Targeted PDS is the child of a forced marriage between the perception of reduced subsidies as a panacea for economic ills and the crocodile tears shed for the abandoned poor. In reality, it is nothing but a hoax to cheat the poor and camouflage the hidden vested interests of those who wish to fatten themselves at the expense of the starving population. The government has nearly three times more food grain than is required as buffer stock, but still drought stricken Gujarat, Rajasthan,

Madhya Pradesh and Orrisa had to wait for assistance. In the year that six states were hit by drought, the government doubled the prices of grains sold under TPDS to poor families.[61]

 

 

The welfare state is such a convenient and elastic phrase that it is tailored to fit various developments in the social and economic fields. To some, the definition of the state assumes a welfare state. To others the concept is related to the extension of administrative activity of the state. Some highlight its close link with the organization and reform of local government. In the sphere of policies and legislation, it comes handy to the political reformers to push their pet schemes and proposals and denounce those of the opponents. To political parties and organs of fostering public reforms to push their pet schemes and proposals and denounce those of the opponents. To political parties and organs of fostering public opinion, it provides a cover for strategy and tactics to carry out several activities to attract the largest sections of voters. Its vastness, as also its vagueness, no doubt, is phenomenal. It is claimed to be an operative ideal for all sorts of ideological platitudes. It has no fixation of outline or a conceptual precision. In its ambiguity lie its uses.

 

Because the word “welfare” defied accurate characterization, the type of changes in society that the term envisages is inexact; its connotation is subject to conflicting interpretations. Any state can be called a welfare state just as any ruler can claim to represent, what Rousseau called, “the general will”. It is difficult to establish a criterion or criteria appropriate to the concpt of welfare state. Its connection with the concepts of “social justice” or “egalitarianism” is both complx and tenuous. On account of the ephemeral and obscure nature of the concept, the welfare state has become everybody’s cup. Each party finds words in justification of the welfare state. For conservatives, state provision comes to assume the character of a “Brummagem bulwark protecting property from the inroads of socialism”; for liberals, the welfare state has warded off the fear of communism and nihilism which stalked the land; and for Laborites, the discomfiture of the title “socialists” is allayed by the adoption of a respectable name.

 

 

 

Because the word “welfare” defied accurate characterization, the type of changes in society that the term envisages is inexact; its connotation is subject to conflicting interpretations. It is difficult to establish a criterion or criteria appropriate to the concept of welfare state. On account of the ephemeral and obscure nature of the concept, the welfare state has become everybody’s cup. Each party finds words in justification of the welfare state.

 

The keynote of the concept of the Indian welfare state consists, precisely, in its individualistic ethics blended with the welfare functionalism and free competitive economy. The activities of the Indian state chase the changing needs of society to a somewhat setted equilibrium. In this sense, the concept of the welfare state has been the leading theme of contemporary social history and political theory in India.

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

 

·             Sankhdher, M.M. Yogakshema the Indian model of welfare state. (Delhi: Deep and Deep publications pvt. Ltd.) 2003.

·             Sankhdher, M.M.  the welfare state. (Delhi: Deep and Deep publications pvt. Ltd.) 2003.

·             Bakshi, P.M. The Constitution of India. (Delhi: Universal Law Publishing Co.) 2009.

·             Pandey, J.N. Constitutional Law of India. (Allahabad: Central Law Agency) 2008.

·             Harlow and Rawlings. Law and Administration. (Cambridge University Press) 2009.

·             Malhotra Kumar Vinay. Welfare State and Supreme Court in India. (Delhi: Deep and Deep Publications).

 

 

Websites referred

·             Available at http://en.wikipedia.org/wiki/Welfare_state last visited on September 10, 2010.

·             Available at http://et .legal definitions.orgi/collin_dictionary last visited on September 10, 2010

·             Available at http://en.wikipedia.org/wiki/Laissez-faire last visited on  September 20, 2010

·             Available at en.wikipedia.org/wiki/Directive_Principles_in_India, last visited on 19^th September.

·             Available at http://en.wikipedia.org/wiki/Welfare_stat, last visited on September 13, 2010.

·             Available at http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan
002355.pdf visited on September13, 2010.

 

 

 

Cases Referred

 

·       Maneka Gandhi v. Union of India AIR 1978 SC 597

·       K.Rajendran v. State of Tamil Nadu , (1982) 2 SCC 273

·       Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161

·       Vishaka v. State of Rajasthan, (1997) 6 SCC 241

·       Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545

·       National Textile Workers Union v. P. R. Ramakrishnan, (1983) 1 SCC 249.

·       Star Builders v. Narayan K. Totame,  (1990) 1 SCC 520

·       Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101

·       Sodan Singh v. NDMC , (1989) 4 SCC 155

·       Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 123

·       Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42

 

 

 

 

 

 

 

ISBN No: 978-81-928510-1-3
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