Status of Social Justice in India


“Social Justice” means availability of equal social opportunities for the development of personality to all the people in society, without any discrimination by caste, sex or race. No one should be deprived, because of these differences, those social conditions which are essential for social development. The issue of social justice is associated with social equality and 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 the words, like Socialist, Secular, Democratic and Republic in the Preamble. Especially the word justice in the Preamble is explained as justice, social, economic and political. The term justice is secured in the Constitution through various provisions of Fundamental Rights and Directive Principles. Social justice denotes the equal treatment of all citizens without any social distinction. It means the absence of privilege being extended to any particular section of the society, and improvement in the conditions of backward classes (SCs, STs, and OBCs) and women. In line, economic justice denotes on the non-discrimination between people by economic factors. It involves the elimination of glaring inequalities in wealth, income, and property. A combination of social justice and economic justice denotes what is known as “distributive justice.” The Preamble secures to all citizens of India equality of status and opportunity.

1.1 Social Justice Provisions

The Indian Constitution is unique in its content and spirit. Though borrowed from almost every constitution of the world, the Constitution of India has several salient features that distinguish it from laws of other countries. However, 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 the whole revolution as Jawaharlal Nehru reminded 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 clothes and each Indian will get the best option that he can progress himself'(Minerva Mills Vs. Union of India, 1980). Social justice was found useful for everyone in its kind and flexible form. Although social justice is not defined anywhere in the Constitution, it is an ideal element of feeling which is a goal of the constitution. Feeling of social justice is a form of relative concept which is changeable by the time, circumstances, culture, and ambitions of the people (Iyear, 1987:53). But the inclusion of the word “Socialist” in the Preamble by the 42nd  Amendment Act has strengthened the democratic ethos of social and economic justice.

Under Indian Constitution, the use of social justice is accepted in a wider sense which includes social as well as economic justice. According to Chief Justice Gajendragadkar, ‘In this sense, social justice holds the aims of equal opportunity to every citizen in the matter of social and economic activities and to prevent inequalities. The Constitution of India does not entirely dedicate to any traditional ideology, and it is embedded in the progressive concept of social justice and the various rule of justice such as equality, transaction, necessity, options, etc. are as its helping organs. In fact dedication of the constitution is in such type of social justice which can fulfill the expectations of welfare state according to Indian conditions. Keeping in view the value of equality our Constitution boldly mentions that the state shall not deny to any person equality before the law or the protection of the laws within the territory of India (Article 14 of the Indian Constitution). The original principle of equalitarian justice is propounded/ derived by Aristotle that is similar behavior in the equal matter. If there is inequality, there will be an injustice. On the issue of “Equality,” the Supreme Court of India delivered several judgments defining the concept itself and in the context recently in the case of E.P. Royappa vs. State of Tamilnadu (AIR, 1974). Justice P.N. Bhagwati has held that equality is a movable concept which has many forms and aspects. It cannot be tightened in a traditional and principled circle. Equality with similar behavior prohibits arbitrariness in action.

1.2 Democracy and Social Justice

Democracy, as we know, is not only a form of government but focuses on human rights and human dignity, in turn, implies the rule of law, equality, liberty and freedom from oppression, exploitation, and arbitrary interference. The constitution of India has accepted the right to equality as an essential element of justice and sought to realize the various components of social justice. Also, to make the principle of equality more efficient, the system of special provision for backward classes of society several provisions have been made in the constitution. Under Article 15(4) the state shall make any particular provision for the advancement of any socially and educationally backward classes of citizen or the Scheduled Castes and Scheduled Tribes (SCs and STs), 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 equalisation under Article 16(4). If it is in the opinion of the state that any class of citizens has not adequately representation under state employment, the state shall make any provision for the reservation of appointments. Likewise according to Article 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 scheduled tribes and shall protect them from social injustice and all forms of exploitation (Article 46 of the Indian Constitution). In a very famous case of Indra Shahni vs. Union of India (Supreme Court Judgement, 1992). The Supreme Court of India declared 27% reservation legal for socially and economically backward classes of the society. 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 the generation to generation. Some citizens of the community made supremacy on the benefits of the society and made deprived to others. So this provision of protective discrimination has been achieved for those deprived people who are living in unbeneficial circumstances.

At large, apart from the Preamble which ensures social justice in multi-dimensional direction Part III and IV of the Constitution provide detailing of social justice under the titles of Fundamental Rights and Directive Principles of State Policy respectively. Article 23 relates to the prohibition of traffic in human beings, and forced labor and Article 24 forbids the employment of children in factories under which no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. In line in Articles 37, 38, 39, 39A and 46 of the Directive Principles of State Policy the States were given a significant number of governing guidelines relating to the promotion of the welfare of the people in society. It includes certain principles of policy to be followed by the State, providing equal justice and free legal aid and promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other backward classes. Thus, realizing that the masses had suffered for long and recognizing the reality of prevailing social inequalities, the founding fathers placed the mandate of social equality at the helm of Constitution and attempted to create a system where every member is empowered to participate in the liberties and the freedom provided under the Constitution.

1.3  Initial Planning for Social Justice

After the adoption of our Constitution, large-scale social and economic changes have taken place. It is true that in many areas, we could not achieve the desired results, but even then the powers of law and legislation have a tremendous impact on society. Law is mostly marginal to the process by which society changes; the law is an effect rather than a cause. The legislation is always based on the quintessence of the public opinion. But inevitably, it often lags behind the real life and Goethe once said of law as the rule of dead over the living. This is too a conservative view and sees rules as passive and reactive, something that accommodates change rather than causes it (K.R.Narayanan Memorial Lecture, 2007). India after attaining independence by a series of social welfare legislations based on the mandate of our Constitution proved that law could be active and dynamic. No longer was the State seen as standing to one side of the society and performing the role of a night watchman, but as a manager of social and economic interests. The State has become the center of political and economic power and source and distributor of basic legal rights and real standards. Society is constantly in motion, economies strengthen and fail technology moves on, new social institutions emerge, even there is a fundamental alteration of the structure of the society. In the process the Courts have taken recourse to these provisions often, in their crusade to bring justice to the poor. Through innovative and creative strategies, they have expanded the scope of the Fundamental Rights, to render justice to women, children, bounded laborers and other oppressed sections of society.

Justice is called a total value. This is why the fathers of our Constitution stressed that the positive/constructive aspect of political freedom has to be instrumental in the creation of a new social order, based on the doctrine of socio-economic justice (Mahapatra, 2011:33). Some practical measures have been taken from the beginning, to create more favorable social conditions for the millions of downtrodden. First of all, the Constitution had been amended when experience with its working made such change necessary. In 1950 itself, arising out of the Supreme Court decision in the State of Madras vs. Champakam Dorairajan, clause (4) was added to Article 15, dealing with the prohibition of discrimination on the grounds of religion, race, etc. The new clause said that nothing in Article 15, nor in section 2 of Article 29, nothing in either shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or the SCs and STs (Menon, 1970:32). Similarly, when it was found, on the basis of ten years’ progress in respect of the conditions of Scheduled Castes and Tribes, and also Anglo-Indians, that the reservation of seats for the former and the provision for nomination in terms of the latter, for a period of ten years prescribed in Constitution of 1950 was inadequate, a clause in the 8th amendment, passed in 1960, extended both to 20 years. In many another way best possible was done to improve the conditions of the weaker sections of the community. Politically too, these weaker sections of the community have been able to make their influence felt as, for example, in the composition of Cabinets both at the Centre and in the States.

In the years following the independence of the country, India planned for a welfare State and attempted several welfare schemes in general. Especially for Jawaharlal Nehru, the ideal was to be not only all-around national economic development, with its associated characteristics of a more general social progress, but also more specifically, the improvement of the lot of the poorer sections of the population and of the rural areas which Gandhiji had always emphasized (Menon : 33). The Harijans, in particular, are in most regions in a social situation for which there is no parallel in the world. Gandhi realized that if our national movement was to become a mass movement, these sections of our society which constitute the vast majority of our population also have to be brought into it. And they will not come into it unless the historical injustices, negative and positive, things were undone and things are done, are rectified, and even more important; they feel that they are being corrected, and justice is done to them at last. In this connection, two important protective legislations in operation for people belonging to SCs are the Protection of Civil Rights 1955 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, despite this constitutional position, atrocities and crimes on members of SCs, especially the women, continue to occur in all parts of the country in varying degrees. As per the National Crime Records Bureau Report 2005, the crimes against SCs in the last few years were mainly atrocities followed by hurt and rape.