Tuesday, April 26, 2011

Concept Of Social Justice Under Indian Constitution

The constitution of India was adopted on November 26, 1949. Some provision of the constitution came into force on same day but the remaining provisions of the constitution came into force on January 26, 1950. This day is referred to the constitution as the "date of its commencement", and celebrated as the Republic Day.


The Indian Constitution is unique in its contents and spirit. Through borrowed from almost every constitution of the world, the constitution of India has several salient features that distinguish it from the constitutions of other countries.    


Dr. Bhimrao Ambedkar, was chairman of the drafting committee. He was the first Law Minister of the India. He continued the crusade for social revaluation until the end of his life on the 6th December 1956. He was honoured with the highest national honour,' Bharat Ratna' in April 1990. B.R. Ambedkar was affectionately called Baba Saheb Ambedkar.


Dr. Ambedkar is the man of millennium for social justice, since he was the first man in history to successfully lead a tirade of securing social to the vast sections of Indian humanity, with the help of a law.  Dr. Ambedkar was the man who tried to turn the Wheel of the Law toward social justice for all. He has strong fervor to attain social justice among the Indian Communities for this purpose he began his vocation.

At the time of independence, the constitution makers were highly influenced by the feeling of social equality and social justice. For the same reason, they incorporated such provisions in the constitution of India. These are as follows –

The words, "Socialist", "secular", "democratic" and "republic" have been inserted in the preamble. Which reflects it's from as a "social welfare state." The expression "socialist" was intentionally introduced in the Preamble.[2]


In D. S. Nakara v. Union of India[3], the Supreme Court has held that the principal aim of a socialist state is to eliminate inequality in income, status and standards of life. The basic frame work of socialism is to provide a proper standard of life to the people, especially, security from cradle to grave. Amongst there, it envisaged economic equality and equitable distribution of income. This is a blend of Marxism & Gandhism, leaning heavily on Gandhian socialism. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society reveals a long march, but, during this journey, every state action, whenever taken, must be so directed and interpreted so as to take the society one step towards the goal.


In Excel Wear v Union of India[4], the Supreme Court held that the addition of the word 'socialist' might enable the courts to learn more in favour of nationalisation and state ownership of an industry. But, so long as private ownership of industries is recognised which governs an overwhelming large principles of socialism and social justice can not be pushed to such an extent so as to ignore completely, or to a very large extant, the interest of another section of the public, namely the private owners of the undertaking.


The term 'justice' in the Preamble embraces three distinct forms- social, economic and political, secured through various provisions of Fundamental Rights and Directive Principles. Social justice denotes the equal treatment of all citizens without any social distinction based on caste, colour, race, religion, sex and so on. It means absence of privileges being extended to any particular section of the society, and improvement in the conditions of backward classes (SCs, STs, and OBCs) and women. Economic justice denotes on the non- discrimination between people on the basis of economic factors. It involves the elimination of glaring in equalities in wealth, income and property. A combination of social justice and economic justice denotes what is known as 'distributive justice'. Political justice implies that all citizens should have equal political rights, equal voice in the government. The ideal of justice- social, economic and political- has been taken from the Russian Revaluation (1917).


The term 'equality' means the absence of special privileges to any section of the society, and provision of adequate opportunities for all individuals without any discrimination. The Preamble secures at all citizens of India equality of status an opportunity. This provision embraces three dimensions of equality- civic, political and economic.[5]


The following provisions of the chapter on Fundamental Rights ensure civic equality:

a)      Equality before the Law (Article 14).

b)      Prohibition of discrimination on grounds of religion, race, caste, sex of place of birth (Article 15).

c)      Equality of opportunity in matters of public employment (Article 16).

d)     Abolition of untouchability (Article 17).

e)      Abolition of titles (Article 18).


There are two provisions in the Constitution that seek to achieve political equality. One, no person is to be declared ineligible for inclusion in electoral rolls on grounds of religion, race, caste or sex (Article 325). Two, elections to the Lock Sabha and the state assemblies to be on the basis of adult suffrage (Article 326).[6]


Article 36 to 51 incorporate certain directive principles of State policy which the State must keep in view while governing the nation, but by Article 37 these principle have been expressly made non-justiciable in a court of law.  Although these principles are not judicially enforceable, yet they are not without purpose. The report of the Sub- Committee said:


"The principles of Policy 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 laws shall be the duty of the State."[7]


According to Dr. B.R. Ambedkar, the Directive Principles of State Policy is a 'novel feature' of the Indian Constitution. They are enumerated in Part IV of the Constitution. They can be classified into three broad categories- socialistic, Gandhian and liberal- intellectual.  The directive principles are meant for promoting the ideal of social and economic democracy. They seek to establish a 'welfare state' in India. However, unlike the Fundamental Right, the directives are non- justiciable in nature, that is, they are not enforceable by the courts for their violation. Yet, the Constitution itself declares that 'these principles are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws'. Hence, they impose a moral obligation on the state authorities for their application. But, the real force (sanction) behind them is political, that is, public opinion.[8]  


In Minerva Mills case[9] (1980), the Supreme Court held that 'the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles'.


Social Justice is the foundation stone of Indian Constitution. Indian Constitution makers were well known to the use and minimality of various principles of justice. They wanted to search such form of justice which could fulfill the expectations of whole revolution. Pt. Jawahar Lal Nehru put an idea before the Constituent Assembly


"First work of this assembly is to make India independent by a new constitution through which starving people will get complete meal and cloths, and each Indian will get best option that he can progress himself."[10]


 Social justice found useful for everyone in its kind and flexible form. Although social justice is not defined anywhere in the constitution but it is an ideal element of feeling which is a goal of constitution. Feeling of social justice is a form of relative concept which is changeable by the time, circumstances, culture and ambitions of the people.[11]


Social inequalities of India expect solution equally. Under Indian Constitution the use of social justice is accepted in wider sense which includes social and economical justice both. According to Chief Justice Gajendragadkar.


"In this sense social justice holds the aims of equal opportunity to every citizen in the matter of social & economical activities and to prevent inequalities".[12]


The constitution of India does not completely dedicated to any traditional ideology as – equalitarian, Utilitarian, Contractarian or Entitlement theory. Dedication of constitution is embedded in progressive concept of social justice and various rules of justice such as- Quality, Transaction, Necessity, Options etc are its helping organs. Infact dedication of the constitution is in such type of social justice which can fulfill the expectations of welfare state according to Indian conditions. So that in one way it has been told about the value of Equality which is known as the declaration of equal behavior of equals to Aristotil, directs the state "The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India"[13] that is distributive justice. In the other way it has been told the protective discrimination by special provision for other backwards of the society such as – SC, ST & Socially and educationally back ward classes,[14] which is the attribute (symbol) of corrective and compensatory justice.


Original Principle of Equalitarian justice is propounded/derived by Aristotle that is equal behavior in equal matter. If there is unequal behavior between equal, there will be injustice.


In State of U.P. Vs. Pradeep Tandon,[15] the Supreme Court accepted reasonable classification justiciable on the basis of unequal behavior between unequal people. In Chiranjeet Las Vs. Union Of India[16]. and State of J.K. vs. Bhakshi Gulam Mohammad[17] it is held by the Supreme Court that due to some special circumstances one person or one body can be treated as one class. But the question is how to determine inequality? In India it is not easy to determine inequality. In Air India vs. Nergis Mirza[18] the Supreme Court declared the rule of Air India unreasonable and discriminatory. But accepting justiciable element in equality, it is try to make equality more effective and progressive. In E.P. Royappa vs. State of Tamilnadu[19] Justice Bhagwati has held that equality is movable concept which has many forms and aspects . It can not be tightened in traditional and principlized circle. Equality with equal behavior prohibits arbitrariness in action, inequality is surely be there.


To accept right to equality as an essential element of Justice, India Constitution prohibits unequal behavior on the grounds of religion, race, caste, sex. But constitution accepts that strict compliance of formal equality will make up equality. But the system of special provision for backward classes of society, it is to try to make the principle of equality more effective. Under Article 15(4) the state shall make any special provision for the advancement of any socially and educationally backward classes of citizen or for the scheduled castes, and the Scheduled tribes and in the same manner by accepting the opportunity of equality to employment under state in Article 16 (1), it has excepted the principle of equalization under Article 16(4). If it is in the opinion of the state that any class of the citizens has not adequately representation under state employment, state shall make any provision for the reservation of appointments. According to Art 46 the State shall promote with special care the educational and economic interests of weaker sections of the people, and in particular, of the scheduled castes and the scheduled tribes, and shall protect them from social injustice and all forms of exploitation.


In a very important case of Indra Shahani vs. Union of India[20] the Supreme Court declared 27% reservation legal for socially and economically backward classes of the society under central services.


Basically protective discrimination is used to fulfill those lacks which arise due to a long time deprivation. It is a part of corrective and compensatory justice. It has been told that peoples of backward class of society have been bearing injustice for generation to generation. Some peoples of the society made supremacy on the benefits of the society and made deprived to others. So this provision of protective discrimination has been made for those deprived people who are living in unbeneficial circumstances.


Through equal opportunity on the basis of quality the Supreme Court has tried to make a reasonable balance between distribution of benefits and distributive justice. In M.R. Balaji vs State of Mysure,[21] the Supreme Court has held that for the object of compensatory justice, limit of reservation should not be more than 50%. In India Shahni vs. Union of India[22] full bench of nine judges approved this balance between distributive justice through quality and compensatory justice.


There is a very wide planning of justice according to necessity in the constitution. It expects distribution of social benefits according to necessity by which more needy person can get benefits. It is expected to the state that the state shall in particular, direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.[23] Under Article 41, it is expected to the state 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 case of unemployment, old age, sickness and disablement, and in other cases of underserved want. It is provided under Article 42 that the state shall make provision for securing just and humane conditions of work and for maternity relief. In Article 43 it is expected that the State shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the state shall endeavor to promote cottage industries on an individual or co-operative basis in rural areas. In PUDR vs. Union of India,[24] the Supreme Court has held that minimum wages must be given and not to pay minimum wages is the violation of human dignity and it is also known as exploitation.


In India, courts have performed a great role to make the Social justice successful. In the field of distributive Justice, Legislature and Judiciary both are playing great role but courts are playing more powerful role to deliver compensatory or corrective justice but these principles are known as mutually relatives not mutually opposites. Ideals and goals are to deliver social justice. Medium may be distributive or compensatory justice. The adopted type may be of quality, Necessity, Equality, Freedom, Common interest or other. Although the Supreme Court has not found any possible definition of Social Justice[25] but has accepted it as an essential and an organ of legal system.


The supreme court of India has given a principal and dynamic shape to the concept of social justice. Social justice has been guiding force of the judicial pronouncements. In Sadhuram v. Pulin[26], the Supreme Court ruled that as between two parties, if a deal is made with one party without serious detriment to the other Court would lean in favour of weaker section of the society. The judiciary has given practical shape to social justice through allowing affirmative governmental actions are held to include compensatory justice as well as distributive justice which ensure that community resources are more equitably and justly shared among all classes of citizens. The concept of social justice has brought revolutionary change in industrial society by charging the old contractual obligations. It is no more a narrow or one sided or pedantic concept. It is founded on the basic ideal of socio-economic equality and its aim is to assist the removal of socio- economic disparities and inequalities. In J.K. Cotton Spinning. And Wiving. Co. Ltd. V. Labour Appellate Tribunal,[27]  the Supreme Court of India pointed out that in industrial matters doctrinaire and abstract notions of social justice are avoided and realistic and pragmatic notions are applied so as to find a solution between the employer and the employees which is just and fair.[28]


Despite the well intentioned commitment of ensuring social justice through equalization or protective discrimination policy, the governmental efforts have caused some tension in the society. In the name of social justice even such activities are performed which have nothing to do with social justice. The need of hour is to ensure the proper and balanced implementation of policies so as to make social justice an effective vehicle of social progress.[29]   


English quotation if you want to succeed as a Judge/ lawyer in our profession and that quotation is:


"Work like a horse and live like a hermit."


If you apply these standards in your daily lives you will be fulfilling the constitutional dharma and if each one of you live by the constitutional dharma our society shall be free of discrimination and each one of you will be the role model for others and all these religious and caste conflicts will end.

source  : http://www.lawyersclubindia.com/articles/Concept-Of-Social-Justice-Under-Indian-Constitution-3685.asp

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