THE ARENA OF SOCIAL JUSTICE IN INDIA: A CONSTITUTIONAL PERSPECTIVE
AUTHORED BY - PALLAVI BHARDWAJ*
Abstract
The Constitution of India envisage certain fundamental principles such as Justice, Liberty, Equality, Fraternity in the preamble itself, highlighting the essentiality of these ideals. Dwelling upon the idea of Justice, one tends to come across the intricacies of different principles under one umbrella. A concept so vast yet not widely accessible, it’s conception though finds expression in different provisions of the Indian Constitution such as Article 14 and 21 along with various statutory enactments over the period of time. Justice (Social, economic and political) encompasses essence of the Rule of Law and Principles of Natural Justice in its core, the concept along with its conception is organic process and is capable of self-evolving through the inputs of political philosophers, judges and various other stakeholders involved in the administration of Justice. However, from the standpoint of an individual justice is quite personalized phenomenon which can vary if varied circumstances and situations. The Chief Draftsman of Our Constitution Dr. B.R Ambedkar believed in a social revolution which according to him is the only way forward towards emancipation of the people of India in its true meaning. This research work aims to revisit the notion of Justice in social context in light of the judicial precedents and ongoing reformation in the procedural laws of the nation.
Keywords: Justice, Social Justice, Constitution, Natural Justice, Socialism.
Research Methodology: This research work is based on the doctrinal method of research, seeking to understand and explore the concept of Justice as envisaged by the prominent political philosophers such as Plato, John Rawls and the Constitution of India, given form through the judicial precedents in light of the recently introduced 3 criminal Law amendment Acts.
Jurisprudentially speaking, a State has two roles to perform ‘War and Administration of Justice[1]’ and inability in any of the task leads to failure to be justly recognized as a State. War although is a term widely used in the primitive times before the world was globally polarized with groups or alliances of Nations, in the wake of establishment of United Nations. However, taking an instance of present times of the ongoing war between the Russia and Ukraine, one can understand how despite of growing time and international peace-making bodies, Humans are prone to a terrible disease called War. Another purpose of the State is ‘Justice[2]’, a term which could be called as the twin sister of Law. The concept of justice is a dynamic concept that is constantly evolving, involving subjective evaluations of the equity of interactions between individuals and groups of people. Its existence is ubiquitous in life, nature and essentially in a Criminal Justice System generally and a civilized State in specific.
Understanding Justice from the point of view of the political thinkers, it can be broadly divided into ‘3 categories[3],
Internationally, in support of social justice for equitable globalization, the International Labour Organization (ILO) adopted the ILO Declaration on June 10, 2008. Since the ILO's 1919 Constitution, this is the third significant statement of principles and policy issued by the International Labour Conference. The purpose of the day's observation is to further strengthen global efforts to reduce poverty, advance full employment and decent work, promote gender parity, and provide equitable access to social justice and well-being for all. February 20, was declared to be the World Day of Social Justice by the United Nations General Assembly during its sixty-second session in November 2007[4].
The idea of social justice is, thus, a revolutionary idea that provides the democratic way of life[5] purpose and substance and makes the rule of law active, according to P.B. Gajendragadkar, a former Chief Justice of India. The idea of social justice is what instils in the minds of the majority of people in this nation a sense of pride in India's political freedom (Gajendragadkar, 1965). He observes the fact that achieving social justice requires taking the required and reasonable actions with bravery, discernment, foresight, balance, and fair play to all the interests involved. If maintaining national liberty requires constant watchfulness, then maintaining individual freedom and liberty in a welfare state also requires constant watchfulness. The phrase "Rule of law" is used to characterize the constitution, evoking expectations regarding the behavior and nature of contemporary government while also reflecting constitutional history. The standards, expectations, and goals that make up the rule of law are diverse. They include conventional notions of individual liberty, natural justice, and the need for justice and equity in the interactions between the governed and the government. The concept of the rule of law is also connected to a few fundamental institutional configurations. All adult people must have an equal voice in the legislative process because equality is a fundamental idea that is central to our beliefs about justice and fairness[6].
Natural justice is not mentioned once in the Indian Constitution. Nonetheless, the Indian Constitution cleverly incorporated a golden thread of natural justice. The words "Justice, Social, Economic, and Political" are found in the Preamble of the Constitution. These words guarantee equality of status and opportunity, as well as fairness in the social and economic activities of the populace. They also serve as a safeguard for individual liberty against arbitrary action, which is the foundation for the principles of natural justice. Apart from the preamble, Art. 14 guarantees Indian citizens equal protection under the law and equality before it. The foundational clauses of Art. 14[7] and Art. 21[8] guarantee the right to life and liberty, respectively, and strike at the heart of arbitrariness and living with dignity. Natural justice and a fair trial for the accused individual are guaranteed by Article 22. Particularly, the guiding principles of state policy Article 39-A[9] provides free legal aid to the poor and disabled in order to address the needs of socially, economically, and politically disadvantaged groups of individuals. Additionally, Article 311[10] of the constitution guarantees constitutional protection to civil servants. Additionally, constitutional remedies are provided by Articles 32, 226 and 136 in circumstances when any fundamental rights, including natural justice principles, are violated. After providing a brief overview, the author analyzes many significant provisions that have components of the Principle of Natural Justice[11].
1.1 Indian Criminal Justice System
In the world, there are primarily two kinds of criminal justice systems[12]. These are the following:
The justice system in every country forms the life blood of the state as it is determinant of the prevailing law and order situation, Constitutional Morality and Rule of law etc., these all factors come together to serve the purpose of Law, Justice as per Thomas Hobbes is ‘working according to the Law’. In India, the Criminal Procedure Code of 1973, governing the procedural law and aiding the Substantive Law of the ‘Bharatiya Nyaya Sanhita, 2023 (BNS)’ is also replaced by the ‘Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)’. The arrest, prosecution, and bail processes are outlined in the BNSS, after coming into the operation from 1st July, 2024 has opened the floor for more discussion and deliberation. These are the progressive steps taken by the government of the day to reform the colonial laws with a touch of amendment to the three criminal laws. It can also be seen as a facet of justice rather ‘social justice’, wherein people living in the era of welfare state have an access to justice as a fundamental right by virtue of Article 21[13] through the reformed criminal procedural laws and introduction to the new offences as suited to the present times and society, fully equipped with the digital era we are living in. This could also be read in light of ‘fairness in justice[14]’ as given by prominent thinker John Rawl in his ‘theory of Justice’ in contrast to the Bentham’s Utilitarianism[15]. Rawl idea of Justice interlinked with a just ‘social order and two principles of justice’ given by him in which he states that ‘all individuals participate for selection of the principle of justice’. The concept of Justice according to him is of ‘distributive nature’ having a feature of ‘Socialism’ hence, suitable for the democratic era with a touch of socialism. This Idea must be revisited in modern times through the constitutional prism and plethora of judicial precedents to reinforce the principles of Natural Justice through various functions performed and executed in any State globally.
The Latin words ‘jungere’ (to bind, to tie together) and ‘jus’ (a bond or tie) are the origin of the English word "Justice." Justice is a unifying or uniting concept that distributes each person's rightful share of rights and obligations, rewards and penalties, so organizing people into a just or fair order of relationships. Some of the Latin principles of justice were articulated by the Roman Emperor Justinian, who said that one should not hurt or injure others and that one should ‘suum cuique tribuere’ (give each what is due to them).
There is no clear distinction between social justice, or fairness among individuals, and international justice, or justice among nations, in the United Nations Charter. Justice is treated by the Charter as a general concept that should be applied in international relations, of which the Statute of the International Court of Justice is an essential component[16]. The Preamble and Article 1[17] of the Charter link respect for international law to justice. According to Article 2[18], justice is correlated with both the preservation of peace and security and each Member's sovereign equality. The mention of peace and the equality of nations suggests that no State should use force in a way that could endanger or threaten the political independence or territorial integrity of another.
The International Labour Organization (ILO) has adopted the ILO Declaration on Social Justice for a Fair Globalization, marking its third major statement of principles and policies since its 1919 Constitution. The declaration, based on tripartite consultations, emphasizes the ILO's role in achieving progress and social justice in the context of globalization. It institutionalizes the Decent Work concept, which has been developed by the ILO since 1999, and aims to accelerate progress in implementing the Decent Work Agenda at the country level. The Declaration emphasizes the importance of social development and social justice for peace and security, and acknowledges the challenges posed by globalization, such as financial crises, poverty, exclusion, and inequality. Starting from the sixty-third session of the General Assembly, 20 February will be celebrated annually as the World Day of Social Justice[19].
Justice has been a topic of debate across cultures and traditions, with various interpretations. In ancient Indian society, it was associated with dharma, and maintaining a just social order was considered a primary duty of kings. In China, Confucius argued that kings should maintain justice by punishing wrongdoers and rewarding the virtuous. In Plato's book ‘The Republic[20],’ Socrates discussed the importance of justice, arguing that unjust people were often better off than just ones. Socrates clarified that justice involves the well-being of all people, and that a just ruler or government must be concerned with the well-being of the people. This idea of giving each person his due remains important in our present day understanding of justice. However, our understanding of what is due to a person has changed since Plato's time. Today, our understanding of what is just, is closely linked to our understanding of what is due to each person as a human being, with dignity being a key factor.
Defining justice is a crucial aspect of moral reasoning and can be a useful in understanding the distinction between concepts and conceptions[21]. A definition of justice should be a product of reflections about justice, rather than a starting point. However, this distinction blurs the line between defining and advocating, as it presupposes certain values and should be defended rather than contained in an arbitrary definition. A conception of justice provides a framework within which a conception of justice is formulated, and a conception provides a standard for judging a person, rule, act, or society as just or unjust. Developing moral concepts is not a morally neutral enterprise, as it requires posing a moral issue and trying to answer it. Definitions are necessary to make arguments intelligible and facilitate communication between people. However, defining ethical concepts is a risky venture, and social thinkers should carefully consider the risks involved. The approach of eclecticism, which focuses on recording what people mean when they make statements about moral concepts, is not always effective.
Justice is a moral value that is connected to other moral values like equality, liberty, and fraternity. A society or state is fundamentally defined by how it fairly and justly arranges human relations, granting each person their appropriate rights and obligations as well as just rewards and penalties. By adjusting the concepts of liberty, equality, cooperation, etc., justice accomplishes this. Hence, the concept of justice has historically been seen to be one that harmonizes or balances the concepts of equality, liberty, etc as understood by Plato. In this regard, it should be briefly mentioned that personified Lady justice, who is often depicted as holding a balance in her hands, represents the balancing or reconciling nature of justice.
Social justice is the equitable and fair allocation of opportunities, resources, and privileges within society. Originally a theological concept, it is now more broadly understood to mean the equitable configuration of social structures that grants access to advantages in terms of money. Another name for it is distributive justice. It places a strong emphasis on distributing social resources fairly within society. Social justice advocacy frequently addresses racism, discrimination against LGBTQ+ people, and gender inequity. By establishing rights and obligations inside societal structures, social justice makes it possible for everyone to participate in the benefits and expenses of teamwork. Institutions such as taxation, social insurance, public health, public education, public services, labor laws, and market regulation are all important in ensuring fair distribution of wealth and opportunities. Since Plato and other ancient philosophers wrote about it, the idea of social justice has existed. In The Republic, Plato proposed that "every member of the community must be assigned to the class for which he finds himself best fitted" as the ideal state.
According to Plato, the law should "account in the first instance of relations of inequality in which individuals are treated in proportion to their worth and only secondarily of relations of equality," as rights are only recognized between free people. It is said that Socrates originated the concept of the social contract—according to which members of society should abide by the laws of society and bear its costs because they have reaped its benefits—through Plato's dialogue Crito[22].
Poverty and inequalities are increasing globally due to the COVID-19 pandemic, climate change, geopolitical tensions, and armed conflicts. These crises highlight the interconnectedness of economies and societies and the need for concerted action. To address these issues, it is crucial to call for more inclusive multilateralism, global solidarity, and a comprehensive approach to human rights. Social justice is essential for sustainable socio-economic development and achieving the Sustainable Development Goals. It must become a pillar of revitalized multilateralism, serving as a unifying ideal and a key tool for a more effective multilateral system.
The Constitution of India envisages ‘Justice’ in the preamble with ‘social, economic and political’. The concept of basic human needs, including the right to food, housing, health, education, and livelihood, is crucial for human development and freedom. These rights should be viewed as entitlements to be equal as humans and members of society. Social justice is a political and cultural balance of diverse interests in society, requiring pluralism or democracy to achieve higher goals. It is an integral part of society, aiming for the growth of individuals and personal development. The concept of social justice is revolutionary and provides meaning to life and makes the rule of law dynamic. In India, the caste system has historically posed challenges to democracy, and democratic facilities like fundamental rights are misused to maintain caste identity. To achieve social justice, democracy must adopt necessary and reasonable measures, ensuring individual freedom and liberty are subject to reasonable regulation and control. The basic aim of social justice is to remove imbalances in social, political, and economic life, creating a just society.
‘Babasaheb Dr. Ambedkar's theory of social justice focuses on five basic principles:
Ambedkar believed that social justice can be dispensed in a free social order, based on liberty, equality, and fraternity’[23].
David Miller's book[24] presents a new theory on social justice, arguing that principles must be understood contextually, with each principle finding its home in different human associations. The three primary components are desert, need, and equality. The book uses empirical research to demonstrate the central role of these principles in popular conceptions of justice, defends them against critical attacks, and explores instances of justice requiring equal distribution. Miller argues that while social justice must pervade major social institutions and guide politicians, officials, and voters, it must also constrain people's everyday behaviour. He addresses issues about the scope of social justice, focusing on core resources such as income, wealth, jobs, education, and healthcare. Miller also argues that social justice principles are always applied within bounded communities, with distribution often focused on small units like workplaces. He develops a theory of social justice grounded in evidence about how ordinary people understand distributive justice and addresses disputed practical questions. The book provides a comprehensive review of research related to issues such as people's attitudes about what constitutes a just society.
Dr. B.R Ambedkar was a prominent Indian lawyer and social justice advocate who dedicated his life to the empowerment of marginalized communities in India. He played a pivotal role in the draft of the Constitution of India, ensuring it included provisions for fundamental rights[25], abolition of untouchability[26], and affirmative action. He also led the Temple Entry Movement, challenging traditional caste hierarchies and promoting social equality. In order for every Indian citizen to live with respect and dignity and to have equal opportunities for both moral and material development, the Indian Constitution called for a social revolution that would create a new and just social order free from Caste discrimination. Ambedkar championed labour rights and economic reforms, emphasizing the need for land reforms and economic empowerment. He introduced reservation policies in education and government jobs to ensure representation and opportunities for Dalits and other backward classes. In 1956, he led a mass conversion of Dalits to Buddhism as a symbol of his vision for social equality and religious freedom. His concept of social justice remains relevant today due to its emphasis on education, inclusion, human rights, intersectionality, and global relevance. Ambedkar's conception of social justice[27] encompassed the following ideas:
He placed greater emphasis on brotherhood and emotional integration than on the humane treatment of all citizens in all circumstances, the removal of caste distinctions, education and property for all, and good will and tenderness. In terms of social justice, he believed that injustices of all kinds should be eliminated by the rule of law, morality, and public conscience. He supported justice for a society that can endure. His legacy continues to inspire movements for equality, social justice, and human rights worldwide.
An essential objective that is deeply embedded in the structure of the Indian constitution is social justice. Given that it is a core goal, this is the case. However, challenges remain to be overcome in the fight against systemic inequalities and to protect the rights and dignity of every citizen, even in light of the significant advancements made in promoting inclusive development and protecting the rights of marginalized populations. Working together, the government, the legal system, civil society, and the economic sector are the main actors that must ensure that the commitments outlined in the constitution are fulfilled. By addressing the root causes of socioeconomic inequality, implementing measures that the principle of equal justice has failed due to the nature and character of civil services administering it. The solution to social injustice lies within us, and we should shift from equality of outcomes to equality of opportunities. Politicians should provide positive help to the disadvantaged, and a good legal system should adapt to changing situations and ensure social good, ensuring the basic dignity of human beings and their inherent need for growth. Despite constitutional guarantees and judiciary intervention, achieving social justice in India remains challenging due to economic inequalities, limited access to education and healthcare, and pervasive prejudice. The caste system, prejudice against religious views, gender-based violence, and environmental degradation further hinder progress. A delicate balance must be struck between redressing historical wrongs and preserving merit-based principles and governance efficiency. Controversies surrounding reservation laws highlight the need for a delicate balance.
To address social justice, a comprehensive approach involving social, policy, and legal remedies is needed. Enhancing affirmative action policies, allocating resources to education, healthcare, and skill development projects can empower underprivileged communities and reduce socioeconomic disparities. Promoting a culture of social consciousness through educational programs, media platforms, and civil society enterprises can combat preconceptions and biases. Collaboration between government, judiciary, civil society, academic institutions, and the commercial sector is crucial for a fair and equitable society. Ultimately, we may state that the goal of the Indian Constitution was to create a social structure that was equitable for all. In light of that, the Formal and substantive socioeconomic equality are secured by the legal and constitutional safeguards established by the Constitution. This transformation has been brought about by welfare state model. However, after all the efforts to bring about economic modernization, the challenge lies in the socio-cultural arena or the Social Revolution or a facet of social justice.
[1] Dr. N.V. Paranjape, Studies in Jurisprudence & Legal Theory Pg. 257 (Central Law Agency, 9th Edition 2019).
[2] ‘Aristotle expands on justice by stating it consists of treating equals equally and unequals unequally, in proportion to their inequality. This is also known as distributive justice (Aristotle 1985).’ https://fernwoodpublishing.ca/files/pursuingjustice.pdf Last Visited on 10th July, 2024.
[3] Ashok K. Upadhyay, John Rawls Concept of Justice 16 (Rawat Publications, Jaipur and New Delhi 1999).
[4] ‘Social Justice’ https://www.clearias.com/social-justice/ Last Visited on 16th July, 2024.
[5] Sastri Yagnapurushadji And Others vs Muldas Brudardas Vaishya and Another 1966 SCR (3) 242.
[6] Allan, T. R. S., 'The Rule of Law', Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism, Clarendon Paperbacks (Oxford, 1994; online edn, Oxford Academic, 22 Mar. 2012), https://doi.org/10.1093/acprof:oso/9780198259916.003.0002, Last Visited on 16th July 2024.
[7] ‘14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’
[8] ‘21. No person shall be deprived of his life or personal liberty except according to procedure established by law.’
[9] ‘39A. 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.’
[10] ‘311. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. [Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply—] (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State; (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.’
[11]‘Shivaraj’ ‘Principles of Natural Justice in Indian Constitution’ https://www.legalservicesindia.com/article/1519/Principles-of-Natural-Justice-In-Indian-Constitution.html Last Visited on 16th July, 2024.
[12] ‘Criminal justice system in India’ https://blog.ipleaders.in/criminal-justice-system-in-india/ Last Visited on 10th July 2024.
[13] ‘21. Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.’
[14] Ashok K. Upadhyay, John Rawls Concept of Justice 53 (Rawat Publications, Jaipur and New Delhi 1999).
[15] Subrata Mukherjee Sushila Ramaswamy, A History of Political Thought Plato to Marx’ 317 (PHI Learning Private Limited Delhi 2nd Edition 2018)
[16] United Nations New York, (2006) ‘The International Forum for Social Development Social Justice in an Open World The Role of the United Nations’ https://www.un.org/esa/socdev/documents/ifsd/SocialJustice.pdf Last Visited on 11th July, 2024.
[17] ‘Article 1: The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.’
[18] ‘Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
1.The Organization is based on the principle of the sovereign equality of all its members.
2.All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.
3.All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4.All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
5.All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
6.The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
7.Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.’
[19] ‘Advancing social justice’ https://www.un.org/en/observances/social-justice-day Last Visited 11th July, 2024.
[20] Plato, Plato's The Republic (New York: Books, Inc., 1943)
[21] Sadurski, W. (1985). ‘The Concept of Justice’. (In: Giving Desert Its Due. Law and Philosophy Library, vol 2.) Springer, Dordrecht. https://doi.org/10.1007/978-94-015-7706-9_2 Last Visited on 10th July 2024.
[22] Ibid.
[23] ‘Social Justice and Indian Context’ International Journal of Science and Research (IJSR) Volume 3 Issue 9, September 2014 https://www.ijsr.net/archive/v3i9/MDIwMTU3Mzk=.pdf Last Visited on 11th July, 2024.
[24] David Miller, Harvard University Press, Cambridge, Mass., 1999.
[25] Article 12-35, The Constitution of India.
[26] 17. “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.
[27]‘Dr. B.R. Ambedkar’s concept of Social Justice and Constitution of India’ https://ijcrt.org/papers/IJCRT2012278.pdf Last Visited on 12th July, 2024.
Authors: PALLAVI BHARDWAJ
Registration ID: 103110 | Published Paper ID: WBL3110
Year : Aug - 2024 | Volume: 2 | Issue: 16
Approved ISSN : 2581-8503 | Country : Delhi, India
DOI Link : https://www.doi-ds.org/doilink/08.2024-17423568/THE ARENA OF SOCIAL JUSTICE IN INDIA: A CONSTITUTI