Project Report on:

Jamia Millia Islamia, New Delhi

Page No.1

Concept of Social Justice

Submitted to:Ms. Samia Khan

Submitted By: Idrish MohammedRoll No: 13 BLW 0025Semester: 4th Year: 2nd Batch: 2013-2018

INDEX

1. INTRODUCTION

2. THE CONCEPT OF SOCIAL JUSTICE

3. CONCEPT OF DISTRIBUTIVE JUSTICE

4. SOCIAL JUSTICE: THE INDIAN INTERPRETATION

5. CONSTITUTION FRAMERS' VIEW

6. CONSTITUTIONAL ASPECTS

7. THE CONSTITUTION OF INDIA AND SOCIAL JUSTICE (STATICAL)

8. INDIAN JUDICIARY'S INTERPRETATION OF SOCIAL JUSTICE

9. THE PROBLEMS OF THE POOR IN INDIA

10. WHERE DOES THE SOLUTION LIE?

11. CONCLUSION

12. BIBLIOGRAPHY

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1. INTRODUCTION

Human development means the expansion of freedom and rights of the people so that they may

have the capacity to lead the kind of life they value. The persistence of social disabilities such as the

caste system, untouchability, religion and discrimination against women, the development and

socio-economic changes is to have a right based approach to development. Human development is

based upon the principles of equality and justice for all. The constitution reflects an

uncompromising respect for human dignity, an unquestioning comment to equality and an

overriding concern for the poorest and weakest in the society.

The term social justice implies a political and cultural balance of the diverse interests in society.

Pluralism or democracy is the only means by which is indeed a dynamic process because human

societies have higher goals to attain. Social justice is an integral part of the society. Social injustice

can not be tolerated for a long period and can damage society through revolts. Therefore the

deprived class should be made capable live with dignity. Social justice is a principle that lays down

the foundation of a society based on equality, liberty and fraternity. The basic aim and objective of

society is the growth of individual and development of his personality. The concept of social justice

is a revolutionary concept which provides meaning and significance to life and makes the rule of

law dynamic. When Indian society seeks to meet the challenge of socio-economic inequality by its

legislation and with the assistance of the rule of law, it seeks to achieve economic justice without

any violent conflict. The ideal of a welfare state postulates unceasing pursuit of the doctrine of

social justice. That is the significance and importance of the concept of social justice in the Indian

context of today.1

Social justice is not a blind concept. It seeks to do justice to all the citizen of the state. A democratic

system has to ensure that the social development is in tune with democratic values and norms

reflecting equality of social status and opportunities for development, social security and social

welfare.2 The caste system acts against the roots of democracy in India. The democratic facilities

like fundamental rights relating to equality, freedom of speech, expression & association,

participation in the electoral process, and legislative forums are misused for maintaining caste

identity. It is true that India has been an unequal society from times immemorial. There are

enormous inequalities in our society which are posing serious challenges to Indian democracy.

1. Dr. Taruna Rathore, "Social Justice and Indian Context" IJSR (2012): 3.358. 2. Dr S.C. Chandra, Social Justice and Human Rights in India 78-80, (Serial Publication, Delhi, 1st edn., 2004).

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Democracy, therefore, must not show excess of valour by imposing unnecessary legislative

regulations and prohibitions, in the same way as they must not show timidity in attacking the

problem of inequality by refusing the past the necessary and reasonable regulatory measures at all.

Constant endeavour has to be made to sustain individual freedom and liberty and subject them to

reasonable regulation and control as to achieve socio-economic justice. Social justice must be

achieved by adopting necessary and reasonable measures. That, shortly stated, is the concept of

social justice and its implications. The basic aim of social justice is to remove the imbalances in the

social, political and economic life of the people to create a just society. It means dispensing justice

to those to whom it has been systematically denied in the past because of an established social

structure.3

Babasaheb Dr. Ambedkar did not propound any specific definition or theory of “Social Justice”. On

the basis of these we can easily argue that Ambedkar has mentioned multiple principles for the

establishment of an open and just social order in general and Indian society in particular. Therefore

with the help of these elements we can carve out a theory of social justice, what can then be referred

as Ambedkar’s theory of Social Justice. We can extract five basic principles, from writings and

speeches of Ambedkar, through which justice can be dispensed in the society.4 These are:

1. Establishing a society where individual becomes the means of all social purposes

2. Establishment of society based on equality, liberty and fraternity

3. Establishing democracy- political, economic and social.

4. Establishing democracy through constitutional measures and

5. Establishing democracy by breaking monopoly of upper strata on political power

Going by the principles of Ambedkar’s theory of social justice, Ambedkar was of the opinion that

Social Justice can be dispensed in a free social order in which an individual is end in itself.5

Associated life between members of society must be regarded by consideration founded on liberty,

equality and fraternity.

3. Cecilia Wainryb, Judith G. Smetana, et. al., Social Development Social Inequalities And Social Justice 78-80, (Taylor& Francis India Pvt. Ltd., Delhi, 1st edn., 2012).4. Ranabir Samaddar, State of Social Justice in India: Issues of Social Justice 98 (SAGE India, Kolkata, 1st edn., 2009).5. Interview with Jutice (Retired) V.R. Krishna Iyer, The Hindu, July 25, 2004.

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2. THE CONCEPT OF SOCIAL JUSTICE

The term social justice was first used in 1840 by a Sicilian priest, Luigi Taparelli d'Azeglio, and

given prominence by Antonio Rosmini Serbati in La Costitutione Civile Secondo la Giustizia

Sociale in 1848.6 It has also enjoyed a significant audience among theorists since John Rawls book.

A Theory of Justice has used it as a pseudonym of distributive justice.

The concept of social justice is a revolutionary concept which provides meaning and significance to

life and makes the rule of law dynamic. When Indian society seeks to meet the challenge of socio-

economic inequality by its legislation and with the assistance of the rule of law, it seeks to achieve

economic justice without any violent conflict.7 The ideal of a welfare state postulates unceasing

pursuit of the doctrine of social justice. That is the significance and importance of the concept of

social justice in the Indian context of today.

The idea of welfare state is that the claims of social justice must be treated as cardinal and

paramount. Social justice is not a blind concept or a preposterous dogma. It seeks to do justice to all

the citizen of the state. Democracy, therefore, must not show excess of valour by imposing

unnecessary legislative regulations and prohibitions, in the same way as they must not show

timidity in attacking the problem of inequality by refusing the past the necessary and reasonable

regulatory measures at all. Constant endeavour has to be made to sustain individual freedom and

liberty and subject them to reasonable regulation and control as to achieve socio-economic justice.

Social justice must be achieved by adopting necessary and reasonable measures.8 That, shortly

stated, is the concept of social justice and its implications. Citizens zealous of their individual

freedom and liberty must co-operate with democracy which seeks to regulate freedom and liberty in

the interest of social good, but they must be able to resist the imposition of any restraints on

individual liberty and freedom which are not rationally and reasonably required in the interests of

public good, in a democratic way. It is in the light of these difficult times that the rule of law comes

into operation and the judges have to play their role without fear or favour, uninfluenced by any

considerations of dogma or isms. The term social justice is a blanket term so as to include both

social justice and economic justice.9

6. Justice V.R. Krishna Iyer, Social Justice - Sunset or Dawn 2-3 (Eastern Book Company, Lucknow, 2nd Edition,1993).7. John Rawl’s, Theory of Justice 44 (Universal Law Pub. Delhi, 2002).8. Ibid. P.336.9. P.G. Jogdand, Prashant P. Bansode, et. al., Globalization And Social Justice 48 (Rawat Publications, Jaipur, 2008).

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3. CONCEPT OF DISTRIBUTIVE JUSTICE

A combination of social justice and economic justice denotes what is known as “Distributive

Justice”. Article 38 and 39 embody the jurisprudential doctrine of “Distributive Justice”. The

Constitution permits and even directs the State to administer what may be termed “Distributive

Justice”. The concept of distributive justice in the sphere of law-making connote, inter alia, the

removal of economic inequalities rectifying the injustice resulting from dealings and transactions

between unequals in society.

In State of Tamil Nadu v. Abu Kavar bai10, the Court upheld the validity of a law enacted for the

nationalisation of transport services in the state on the ground that it was for giving effect to the

directive principles contained in Article 39(b) and (c). A nationalisation scheme meant for the

purpose of distribution or preventing concentration of wealth; as in the instant case, must have

sufficient nexus to attract the operation of Article 39(b) and (c). The Tamil Nadu Act is valid as it

subserves nationalisation policy.

In the Mc Culloah v. Maryland11, the U.S. Chief Justice Marshall observed; "A Constitution is to

contain an accurate detail of all the subdivisions of which great powers will admit, and of all the

means by which they may be carried into execution, would partake of the prolixity of a legal code,

and could scarcely be embraced by the human mind. It should probably never be understood by the

public. Its nature, therefore, requires that only its great outlines should be marked, its important

objects designated and the minor ingredients which impose those objects be deduced from the

nature of the objects themselves." Marshall thus, reiterated that the Constitution should contain the

very minimum and that minimum to be the 'rules of law'. Modern democracies are in conceivable

without judiciary. This organ is not only guardian of the Constitution but also protector of

fundamental rights of the citizens. Bryce observed:

"There is no better test of the excellence of a government than the efficiency of its judicial

system, for nothing more nearly touches the welfare and security of the average citizen than

his knowledge that he can rely on the certain and prompt administration of justice."

Similarly Garner put it; "A society without legislative organ is conceivable and indeed, fully

developed legislative organ did not make their appearance in the life of the State until

modern times, but a civilised state without judicial organ is hardly conceivable".

10. (1984) 1 SCC 516.11. 1819.

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The Judiciary is the protector of civil rights, it decides cases, it is the custodian of fundamental

rights, it is the guardian of the Constitution, its role in a federal system as the arbitrator is well

known and the power of judicial review has reposed faith of the people in the judiciary. Both

legislative anti-people law making and the executive excesses can come under judicial scanner.

The importance of judiciary is more for the citizens than for the States. The judicial system is a part

of the judicial process. According to Alan Ball (1978) there are two main reasons why this point,

that the judicial system is part of the political process has to be emphasised. Firstly, liberal

democratic theory has traditionally put a premium on the necessity of protecting the citizen from a

too powerful state and therefore emphasised the impartiality of the judicial process, to increase the

independence of the judiciary and to deepen the respect and confidence with which judicial

decisions are received. Secondly, it has led to the emphasising of the aspects of the doctrine of

separation of powers, both to prevent too much concentration of political power in the hands of

government and guard against the 'excesses of democracy' or the 'tyranny of the majority'. In Indian

political system, the judiciary has carved out a very significant space for itself.

The Supreme Court in Minerva Mills v. Union of India12, observed:

“There is no doubt that though the courts have always attached very great importance to the

preservation of human liberties, no less importance has been attached to some of the

Directive Principles of State Policy enunciated in Part IV.... The core of the commitment to

the social revolution lies in part III and IV. These are the conscience of the Constitution.”13

The Supreme Court through its decisions has tried to realize this goal of constitutional justice.In

Bandhua Mukti Morcha v. Union of India14, the Court, while decrying in strongest possible terms

the practice of bonded labour, held that Right to life, under Article 21 of the Constitution means

right to live with dignity, and that this evil practice was a clear violation of that. Similarly, in State

of H.P. v. Ummed Ram Sharma15, the Court held that access to roads in hilly areas is access to life,

and the failure of the state to provide roads, in such regions amounts to denial of right to life to the

people of the region. Then in Vishakha v. State of Rajasthan16, it held that sexual harassment of a

12. AIR 1980 SC 1789.13. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.14. (1984)3 SCC 161.15. (1988) 2 SCC 68. 16. (1997) 6 SCC 241.

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woman at workplace, is a denial of both her right to life and personal liberty under Article-21, as

well as amounted to discrimination on the basis of sex, and thus violative of right to equality

guaranteed under Articles 14 and 15. The Court went on to issue elaborate guidelines to protect

women from sexual harassment at workplace. Also, Paschim Banga Khet Mazdoor Samity v. State

of West Bengal17, failure on the part of the Government hospital to provide timely medical treatment

to a person in need of such treatment has been held to be a violation of his right under Article-21. In

Rural Litigation Entitlement Kendra v. State of U.P.18, as well as M.C. Mehta v. Union of India19 the

Court held that, right to life includes right to live in a clean and healthy environment. Then in

Mohini Jain v. State of Karnataka20 as well as Unnikrishnan v. State of A.P.21, observing that a man

without education was no better than an animal, the Court held right to education was an essential

ingredient for a dignified and meaningful life. In Hussainara Khatoon v. Home Secretary, State of

Bihar22, turning its attention to the plight of under-trial prisoners languishing in jails, for years

together, for want of proper legal aid, delay in conduct of trials, etc. held that, failure of the State to

provide legal representation and accused person, amounted denial of personal liberty without a just,

fair and reasonable procedure established by law. Earlier in Maneka Gandhi's case23, the Court had

held that a procedure under Article 21 must be a right, just, fair and a reasonable procedure and that

it must also satisfy the test of reasonableness in Articles 14, as well as 19, besides Article 21. On

this basis the Court decried the practice of handcuffing of prisoners (both under-trials as well as

convicts), in Prem Shanker v. Delhi Administration24. Recently, in Smt. Selvi v. State of Karnataka25,

the Court held that conducting of narco-analysis, polygraph test, etc. on accused persons, without

their consent, was violation of both Articles 20 as well as 21, for it amounted to compelling a person

to give evidence against himself, which was prohibited by clause (3) of Article 20, and was not a

just and reasonable procedure under Article 21.

In continuation of this trend of Court has also frowned upon custodial torture of the accused/convict

ans has issued elaborate guidelines to protect the accused/convict from custodial torture, in D.K.

Basu v. State of West Bengal26. Recently, in Sate of West Bengal v. Committee for protection of

Democratic rights, West Bengal27, dismissing the appeal of the Government of West Bengal, against

17. (1996) 4 SCC 37. 18. (1987) Supp. SCC 487.19. AIR 1987 SC 1087. 20. (1992) 3 SCC 666.21. (1993) 1 SCC 645.22. (1980) 1 SCC 81.23. Maneka Gandhi v. Union of India, AIR 1978 SC 597.24. 1(1980) 3 SCC 526.25. (2010)(4) Scale 690.26. AIR 1997 SC 610.27. (2010) 10 SCC 571.

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an order of the High Court, transferring the investigation of case involving violence and killing on

the part of the ruling party in the State from the State police to C.B.I. The Court held that failure on

the part of the police to carry out proper investigation so as to bring culprits to book, was a violation

of the rights of the victims of that violence, for the State is under an obligation to ensure that a

person committing a crime is apprehended and punished.

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4. SOCIAL JUSTICE: THE INDIAN INTERPRETATION

What constitutes social exclusion or its ameliorative social justice varies from society to society.

Primarily, the social and cultural norms shape the policies for promotion of social justice. Be that as

it may, the ultimate purpose of such policies remains the same – that of elevating the dignity and

sovereignty of the individual to where he does not need charity but can himself become charitable.

Social justice, thus, imposes on each of us a personal responsibility to work with others to design

and continually perfect our social institutions as tools for personal and social development.

Poverty and unemployment are the most universal and fundamental categories of social exclusion.

However, there is a unique category, only found in India and not elsewhere in the world. This is the

category of caste, which is decided at birth. Sociologists typically study such categories, which

economists in general tend to ignore. However, the importance of such categories as an analytical

construct can hardly be overemphasised given their multi-dimension (Nayak, 1994). Indeed,

Akerlof (1976) has shown as to how the economy settles for a low-level equilibrium trap in the

presence of mutually exclusive groups called castes.28

This is the reason the present study is particularly inclined to define social justice in terms of

emancipation from such exclusion. The other motivating factor has been the fact that the Indian

Constitution, which professes to secure to all its citizens social justice, tends to look upon it in the

same spirit. The Constitution prohibits discrimination on any artificial grounds. It prohibits forces

creating social barriers like those of untouchability. In the context of ubiquitous practice of casteism

and its deleterious impact running through the history, social justice in India has come to be

synonymous with the upliftment and empowerment of the downtrodden, viz., the scheduled castes

(SCs), scheduled tribes (STs) and other backward castes (OBCs).29

Since Independence, the goal of an egalitarian Indian society has been sought to be attained in the

economic sphere mainly by instituting a three-pronged strategy - agrarian reform, planning process,

and affirmative action in the form of reservation. Often the root of age-old discrimination was

traced to the skewed structure of ownership, control and use of land (Beteille, 2002). Ever since, the

agrarian reforms have formed an essential ingredient of the agenda for social justice. Towards this

direction, the zamindari or the system of estates was abolished way back in the 1950s. This was

28. Purohit B.R, Sandeep Joshi, Social justice in India 189 (Rawat Pub, Jaipur, 2003).29. Ibid. P. 335.

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followed by regulation of tenancy in favour of the tenant. Thus, by 1954 all the provinces passed

laws to abolish all types of intermediaries in the system of land tenure. Besides, the regulation of

wages came to the benefit of agricultural labourers.

The need to reconcile growth and social justice was explicitly recognised at the early stage of

India’s planned economic development (Kurien, 1992). The First Five Year Plan presented the

problem thus:

‘‘The urge to economic and social change under present conditions comes from the fact of

poverty and of inequalities in income, wealth and opportunity. The elimination of poverty

cannot obviously be achieved merely by redistributing existing wealth. Nor can a

programme aiming only at raising production remove existing inequalities. Only a

simultaneous advance along both these lines can create conditions in which the community

can put forth its best efforts for promoting development.30’’

Ever since social justice has been a common thread running through the planning process. In view

of the poor trickle-down effect noticed in the early years of planning, programmes especially

designed for the disadvantaged section have since formed an essential feature of the planning

process. In this context, Special Component Plan for SCs and Tribal Sub-Plan for STs have come to

occupy special position as vehicles of social justice.

As access to finance is critical in dispensation of social justice, the priority sector lending directive

for banks has mandated allocation of credit for the weaker sections. A recent landmark in this

direction has been the setting up of separate finance and development corporations, to begin with

for SCs and STs in 1989, followed by OBCs and Safai Karamcharis. The job of these corporations

is to develop schemes for employment generation and extend loan-cum-subsidy essentially for pilot

projects. Thereby, they act catalytic for the disadvantaged towards gainful engagement in income-

generating activities.

Education being the most effective instrument for empowerment, the focus has been on early

attainment of literacy, and increase in school enrolment and retention rates among the

disadvantaged. They have been pursued under numerous schemes broadly by relaxing criteria for

establishment of primary schools, abolition of fees, free provision of textbooks and uniforms,

among others. On the other hand, higher education and technical studies by the disadvantaged have

been encouraged by way of seat reservation, relaxation in cut off percentage, and remedial

coaching.

30. Mahbal Ram, Changing Economic Scenario and social Justice on India 10 (Domenent. Pub, Delhi, 2003).

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5. CONSTITUTION FRAMERS' VIEWS:

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. 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 fervour to attain social justice among the Indian Communities for this purpose he

began his vocation.31

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.32

In D. S. Nakara v. Union of India33, 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 socialism34 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

31. Nazeer.H.Khan, B.R. Ambedkar on federalism, ethnicity and junder justice 151 (Deep&Deep Pub. NewDelhi).32. By the 42nd Constitutional (Amendment) Act, 1976.33. AIR 1983 SC 13.34. http://en.wikipedia.org/wiki/Socialism.

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interpreted so as to take the society one step towards the goal.

In Excel Wear v. Union of India35, 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.

35. AIR 1979 SC25.

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6. CONSTITUTIONAL ASPECTS

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. 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 fulfil the expectations of whole revolution. Pt. Jawahar Lal Nehru

put an idea before the Constituent Assembly:36

"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."

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.37 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"38.

The constitution of India does not completely dedicated to any traditional ideology as –

equalitarian, Utilitarian39, Contractarian or Entitlement40 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

36. Constituent Assembly Debates, Constituent Assembly of India – Volume 1, Thursday, the 19th December 1946.37. Supra note. no. 11, at 8238. P.B. Ganendragadkar, Law, Liberty and social justice (1964) p. 77, 99.39. http://en.wikipedia.org/wiki/Utilitarianism.40. http://en.wikipedia.org/wiki/Entitlement_theory.

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theAristotil, 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"41that 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,42 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. v. Pradeep Tandon,43 the Supreme Court

accepted reasonable classification justiciable on the basis of unequal behavior between unequal

people. In Chiranjeet Las v. Union Of India44. and State of J.K. v. Bhakshi Gulam Mohammad45, 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 v. Nergis Mirza,46 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 v. State of Tamilnadu, Bhagwati , J.,

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 behaviour prohibits arbitrariness in action,

inequality is surely be there. To accept right to equality as an essential element of Justice, India

Constitution prohibits unequal behaviour 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.

41. Art 14 of the Indian Constitution.42. Art 15(4) and Art 16(4) of Indian Constitution.43. AIR 1975 SC 563 44. AIR 1951 SC 41 45. AIR 1967 SC 122 46. AIR 1981 SC 1829.

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In a very important case of Indira Shahani v. Union of India,47 the Supreme Court declared 27%

reservation legal for socially and economically backward classes of the society under central

services.

In the recent judgment, Air India Statutory Corporation v. United Labour Union,48 a three Judges of

the Court has explained the concept of social justice in Article 38 as follows:

“The concept of “Social Justice” consists of diverse principles essential for the orderly growth and

development of personality of every citizen. “Social justice” is then an integral part of justice in the

integral sense. Justice is the genus, of which social justice is one of its species. Social justice is a

dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of

the society and so elevate them to the level of equality to live a life with dignity of person. Social

justice is not a simple or single idea of a society but is an essential part of complex social change to

relieve the poor etc. from handicaps, penury, to ward off distress and to make their life liveable, for

greater good of the society at large. The aim of social justice is to attain substantial degree of social,

economic and political equality which is the legitimate expectation and constitutional goal. In a

developing society like ours, where there is vast gap of inequality in status and of opportunity, law

is a catalyst, rubicon to the poor etc. to reach the ladder of social justice. The Constitution,

therefore, mandates the state to accord justice to all members of the society in all facets of human

activity. The concept of social justice enables equality to flavour and enliven the practical content of

life. Social justice and equality are complementary to each other so that both should maintain their

vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality.

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.49

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

1. Equality before the Law (Article 14).

2. Prohibition of discrimination on grounds of religion, race, caste, sex of place of birth

(Article 15).

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

4. Abolition of untouchability (Article 17).

5. Abolition of titles (Article 18).

47. AIR 1993 SC 477.48. Civil Appeal Nos. 1553937, 15532-15534 of 1996.49. Laxmikanath, M., Indian polity 29 (2008).

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7. THE CONSTITUTION OF INDIA AND SOCIAL JUSTICE (STATICAL)

The Constitution of India has solemnly promised to all its citizens justices-social, economic and

political; liberty of thought expression, belief, faith and worship; equality of status and of

opportunity; and to promote among the all fraternity assuring the dignity of the individual and the

unity of the nation. The Constitution has attempted to attune the apparently conflicting claims of

socio-economic justice and of individual liberty and fundamental rights by putting some relevant

provisions.

Article 19 enshrines the fundamental rights of the citizens of this country. The seven sub-clauses of

Article 19(1) guarantee the citizens seven different kinds of freedom and recognize them as their

fundamental rights. Article 19 considered as a whole furnishes a very satisfactory and rational basis

for adjusting the claims of individual rights of freedom and the claims of public good.

Articles 23 and 24 provide for fundamental rights against exploitation. Article 24, in particular,

prohibits an employer from employing a child below the age of 14 years in any factory or mine or

in any other hazardous employment. Article 31 makes a specific provision in regard to the

fundamental right to property and deals with the vexed problem of compulsory acquisition of

property.

Article 38 requires that the state should make an effort 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 national life. Article 39 clause (a) says that the State shall

secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and

shall, in particular provide free legal aid, by suitable legislation or schemes, or in any other way, to

ensure that opportunities for securing justice are not denied to any citizen by reason of economic or

other disabilities.

Article 41 recognizes every citizen's right to work, to education & to public assistance in cases of

unemployment, old age, sickness & disablement and in other cases of undeserved want. Article 42

stresses the importance of securing just and humane conditions of work & for maternity relief.

Article 43 holds before the working population the ideal of the living wage and Article 46

emphasizes the importance of the promotion of educational and economic interests of schedule

castes, schedule tribes and other weaker sections.

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The social problem presented by the existence of a very large number of citizens who are treated as

untouchables has received the special attention of the Constitution as Article 15 (1) prohibits

discrimination on the grounds of religion, race, caste, sex, or place of birth. The state would be

entitled to make special provisions for women and children, and for advancement of any social and

educationally backward classes of citizens, or for the SC/STs. A similar exception is provided to the

principle of equality of opportunity prescribed by Article 16 (1) in as much as Article 16(4) allows

the state to make provision for the resolution of appointments or posts in favour of any backward

class of citizens which, in the opinion of the state, is not adequately represented in the services

under the state. Article 17 proclaims that untouchability has been abolished & forbids its practice in

any form & it provides that the enforcement of untouchability shall be an offence punishable in

accordance with law. This is the code of provisions dealing with the problem of achieving the ideal

of socio- economic justice in this country which has been prescribed by the Constitution of India.

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8. INDIAN JUDICIARY'S INTERPRETATION OF SOCIAL JUSTICE

In Oriental Insurance Co. Ltd. v. Hansrajbai V. Kodala,50 the Apex Court held that "The object is to

expeditiously extend social justice to the needy victims of accidents curtailing delay. If still the

question of determining compensation of fault liability is kept alive, it would result in additional

litigation and complications in case claimants fail to establish liability of defendants. Wherever the

Legislature wanted to provide additional compensation, it has done so specifically."

The Supreme Court has firmly ruled in Balbir Kaur v. Steel Authority of India,51 that "the concept of

social justice is the yardstick to the justice administration system or the legal justice and it would be

an obligation for the law Courts to apply the law depending upon the situation in a manner

whichever is beneficial for the society" as the respondent Steel Authority of India was directed to

provide compassionate employment to the appellant. In Superintending Engineer, Public Health,

U.T. Chandigarh v. Kuldeep Singh,52 the Supreme Court held that "It is the duty of the authorities to

take special care of reservations in appointments as a part of their constitutional duties to accord

economic and social justice to the reserved categories of communities. If ST candidate is not

available, the vacancy has to be given to SC candidate and the reserved roster point has to be filled

in accordingly". In Ashok Kumar Gupta v. State of U.P.,53 it was held by the Apex court that "To

give proper representation to SC/ST Dalits in services is a social justice which is a fundamental

right to the disadvantaged. It cannot be said that reservation in promotions is bad in law or

unconstitutional."

In Consumer Education & Research Centre v. Union of India,54 it was held that "Social justice is a

device to ensure life to be meaningful and livable with human dignity. State has to provide facilities

to reach minimum standard of health, economic security and civilized living to the workmen. Social

justice is a means to ensure life to be meaningful and liveable."

So we can see that the Supreme Court has always stepped in to protect the interest of the Indian

citizens, whether it has been has the case of consumer protection or claiming insurance or be it

representation of suppressed classes. It has used the medium of social justice as an umbrella term to

deliver justice.

50. AIR 2001 SC 1832.51. AIR 2000 SC 1596.52. 1991 (9) SCC 199. 53. 1997 (5) SCC 201.54. 1995 (3) SCC 42.

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9. THE PROBLEMS OF THE POOR IN INDIA

This vice of social inequality assumes a particularly reprehensible form in relation to the backward

classes and communities which are treated as untouchable; and so the problem of social justice is as

urgent and important in India as is the problem of economic justice. Equality of opportunity to all

the citizens to develop their individual personalities and to participate in the pleasures and

happiness of life is the goal of economic justice. The concept of social justice thus takes within its

sweep the objectives of removing all inequalities and affording equal opportunities to all citizens in

social affairs as well as economic activities. The problem of poverty and unequal distribution of

wealth may be confined to the bigger cities and towns in India but the problem accentuated by the

vice of social inequality existing in a gross form prevails in all of our villages. For instance, the

harijans constitute a large class of landless labourers who are treated as untouchables by the rest of

the community, who have no house to live in, generally no clothes to wear, who do not get food to

eat & sometimes even decent drinking water is beyond their reach. The poor also have no access to

legal assistance. Poor people are vulnerable to injustice. Poverty fosters frustration, ill feeling and a

brooding sense of injustice. Democracy realizes that this problem which concerns a large number of

citizens cannot be successfully met unless law is used wisely to restore balance to the economic

structure and to remove the causes of economic inequality.

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10. WHERE DOES THE SOLUTION LIE?

The solution to social injustice lies within us only. We should be aware of the expressions - the

poor, the backwards, social justice which are being used to undermine standards, to flout norms and

to put institutions to work. We should subject every claim whether it is made in the name of the

poor, the backward, whosoever to rational examination. After it has been in effect for a while,

subject every concession to empirical evidence. We should shift from equality of outcomes to

equality of opportunities. And in striving towards that, nudge politicians to move away from the

easy option of just decreeing some reservations etc to doing the detailed and continuous work that

positive help requires, the assistance that the disadvantaged need for availing of equal opportunities.

We must bear in mind that if the majority disregards smaller sections in the community, it drives

them to rebellion. We should try to refashion the policies of state on truly secular and liberal

principles. The individual and not the group should be the unit of state policy.

Since no society is static, and social processes are constantly changing, a good legal system is one

which ensures that laws adapt to the changing situations and ensure social good. Any legal system

aiming to ensure good should ensure the basic dignity of the human being and the inherent need of

every individual to grow into the fullness of life. The hope of the Indian masses does not lie in the

legal system alone, but in their conscious awakening and fight for social and economic justice.

Knowledge of their legal rights however, can be an important motivating force in this. Many NGOs

and individuals are emerging in different parts of the country to take up the cause of social change

and change for a more just India, where justice will not merely be talked about in intellectual

discussions on the intricacies of law, or written about in books, which the masses can't read, or

exchanged for good old money, but actually lived and experienced by the majority of the people.

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11. CONCLUSION:

It might be asked why the principle of equal justice has failed to have its effect. The answer to this

is simple. To enunciate the principle of justice is one thing. To make it effective is another thing.

Whether the principle of equal justice is effective or not must necessarily depend upon the nature

and character of the civil services who must be left to administer the principle. The solution to

social injustice lies within us only. We should be aware of the expressions- the poor, the backwards,

social justice which are being used to undermine standards, to flout norms and to put institutions to

work. We should shift from equality of outcomes to equality of opportunities. And in striving

towards that, politicians should be doing the detailed and continuous work that positive help

requires, the assistance that the disadvantaged need for availing of equal opportunities. Social

processes are constantly changing, a good legal system is one which ensures that laws adapt to the

changing situations and ensure social good. Any legal system aiming to ensure good should ensure

the basic dignity of the human being and the inherent need of every individual to grow into the

fullness of life.

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