Indian Constitution and Social Justice

Central India Law Quarterly

Social Justice In Indian Constitution
SOCIAL JUSTICE IN INDIAN CONSTITUTION
                               Dr. Kamla Jain

       The Preamble to an Act sets out the main objectives which the
legislation is intended to achieve.' It is a sort of introduction to the statute
and many a times very helpful to understand the policy and legislative
intent. It expresses "what we had thought or dreamt for so long" The
Constitution makers gave to the Preamble ''the place of pride". It
embodies in a solemn form all the ideals and as pirations for which the
country had struggled during the British regime. In re Berubari case2 the
Supreme Court herd that the Preamble to the Constitution is a key to
open the mind of the makers, and shows the general purpose for which
they made the several provisions in the Constitution.

     The Preamble declares and secure to all citizens justice, social,
economic and political.
Preamble how far useful i n interpreting the Constitution
      The Preamble is the key to open the mind of the makers but it
does not m,ean that the preamble can override the express provisions of
the Act in Berribury case, the Supreme Court held that preamble was not
a part of Constitution and there fore it could never be regarded as a
source of any substantive power. What is true about the powers is
equally true about the prohibitions. In keshawanand Bharti Case3
Supreme Court rejected the view and held that preamble is the part of
the Constitution. Though in any ordinary statute not much importance is
attached to the preamble, all importance has to be attached to the
preamble in a Constitution Statute.
The Purpose it serves
       The preamble serves the following purposes namely, 1. It
indicates the source from which the Constitution comes, 2. It contains the
enacting clause which brings in to force the Constitution;3. It declares the


     M.A., LL.M., Ph.D.. Professor & HOD, Govt. Hamidia College. BPL. Recepient of
     Ambedkar Award on her Book "Parliament v. Executive Presented Nine Research
     Papers at International Law Research Seminar held at Vigyan Bhawan, New Delhi
     on 21-25 March 1993.
1.   Golaknath. AIR 1967 SC 1643
2.   AIR 1960 SC 845.
3.   AIR 1973 SC 1461.
 Vol. IX:ll]                 SOCIAL JUSTICE                              185

great rights and freedoms which the people of lndia intended to secure to
all citizens and basic type of Government and the quality which was to be
established.
Democratic State
       In a republic the political sovereignty vests in the people and the
head of the State is only a person elected by the people for a fixed term.
In our Constitution there is a President who is the head of Executive and
who is elected as opposed to hereditary monarch, and holds office for a
fixed term of five years. The democratic set up can be of two types, one,
direct and second, indirect. The term "Democracy" in its broadest sense
embraces, in addition to political democracy, also social and economic
democracy.
Objectives Enshrined i n the Preamble
       Democracy would indeed be hollow if R fails to generate this spirit
of brotherhood among all sections of people feeling that they are all
children of the same soil and the same motherland. Justice is the
harmonious blending of selfish nature of man and the good of society.
The attainment of the collective good as distinguished from individual
good is the main aim of rendering justice. Combining the ideals of
political, social, economic democracy democracy with that of equality
and fraternity in the Preamble, Gandhiji described as "The lndia of My
Dream", namely " an India, in which the poorest shall feel that it is their
country in whose makingthey have an effective voice; an lndia in which
all communities shall live in perfect harm~ny."~


       42nd Constitutional Amendment has inserted three new words in
the preamble., Secularism, socialism and interigaty. Socialism is implicit
in the Preamble and the Directive Principles of the Indian Constitution.
The term "Economic Justice" in the Preamble denotes nothing but India's
resolve to bring socio-economic revolution. The Directive Principles,
particularly Art, 39 (b) & (c) of the Constitution are Charters of social and
economic liberties of the people. The word "socialismwhas, however, no
definite democratic and communistic. Generally, the term implies a
system of government in which the means of production is wholly or
partially controlled by the State. India's. socialism is, however a
democratic socialism and not a "communistic socialism". For this purpose,


4.   AIR 1978SC597.
 186                 CENTRAL INDIA LAW QUARTRTLY                       [I 996

the Preamble has combined both the words, socialism and Democracy in
the Preamble. This combination of the words; socialism and the
democracy have been criticised by many writers. It has been said that
democracy and socialism cannot co-exist. This criticism is, however,not
justified in view of the gradual change of thinking of the modern socialists
their thinking is in line with the ides of welfare State which would prevent
only the excess of exploitation and free competition without destroying
 individual initiative and without detriment to the political freedoms. It is
thus, marriage of democracy and socialism which has been embeded in
the Indian Constitution.
Equality Before Law
         The concept of equality does not mean absolute equality-among
human beings which is physically not possible to achieve. It is a concept
implying absence of any special priviledge by reason of birth, breed or
the like in favour of any classes to the ordinary law of the land. The
guarantee of equality before law is an aspect of what Dicey calls the
"Rule of Law" in England. The rule has got some exceptions under the
provisions of the Constitution for instance, foreign diplomates, President
of India, State Governors. Article 14 permits classifications but prohibits
class lagislations. The classification is to be reasonable and it must fulfil
two conditions, namely, it must be founded on intelligible differentia and
the differentia must have a rational relation to the object sought to be
achieved. In Menka Gandhi4 Justice Bhagwati propounded that the
concept of equality is a dynamic concept with many aspects, and
dimensions and it cannot be imprisoned within traditional and doctrinaire
 limits.
Cases in support of the Concept
       In K.C. Vasanta v. Karr~ataka,~    Supreme Court gav, clear cut
guidence to be followed in matter of reservation for Scheduled Castes
and Scheduled Tribes. Although the judges of the Supreme CoUrt
expressed five separate opinion. They are as follows : (1) the
reservation in favour of the SCs & STs must continue as at present, that
is, without the application of a means test, for a further period of 15
years. Another 15 years will make it 50 from the commencement of the
Constitution, a period reasonably long for these classes to overcome the
baneful effects of social oppression, isolation and humiliation; (2) the
means test, that is, the test of economic backwardness ought to be


 5. AIR 1985 SC 1495.
 Vol. IX:II]                SOCIAL JUSTICE                                 187

applicable even to the SCs and STs. after 15 years (after 2000 AD); (3)
so far other backward classes are concerned two tests should be
applied;

                (a)     that they should be comparable to the         -
                        SCs and STs. in the matter of their
                        backwardness;
                @)      that they should satisfy the means test
                        such as the State Government may lay
                        down, in the context of prevailing
                        economic conditions;

(4) the policy of reservations in employment education and legislative
institutions should be reviewed every five years or so. This will afford an
opportunity:-

                (i)     to the State to rectify distortions arising
                        out of particular facts of the reservation
                        policy; and

                (ii)    to the people, both backward and non-
                        backward, to ventilate their views in a
                        public debate on the practical impact of
                        the policy of reservation.
Special Provisionsfor SCs and STs.
       Under Article 330 to 345 special provisions are made for
safeguarding the interest of the Schedule Caste and Tribes, Anglo-
Indians and backward classes. Article 347, 350 350-A & B make special
provisions for protecting the interest of linguistic minorities.

Backward classes : The Constitution does not define as to who are the
persons who belong to backward classes. It is for the Centre and the
State Government to specify such classes of persons for the purpose of
the Constitution. There is no uniformity in the matter and each State lists
the backward classes in its own way. The Backward Classes
Commission appointed in 1953 was asked to determine the criieria on
the basis of which a class may be considered as a backward class. The
Commission could not find a criteria for such classification Very recently
M.P. Government had made reservations to the extent of 70% in the
public employments, which is quite unreasonable looking to the present
progress and development of these classes.
     188                  CENTRAL INDIA LAW QUARTRTLY                      [I 996

    Abolition of Untouchability
           "Untouchability" is neither defined in the Constitution nor in the
    Act, The Mysore High Court has, however, held that the term is not to be
    understood in its literal or grammatical sense but to be understood as the
    "practice as it had developed historically" in the cbuntry. Understood in
    this sence, it is a product of the Hindu caste system according to which
    particular section amongst the Hindus had been looked down as
    untouchables by the other sections of that society. A literal construction
    of the term would include persons who are treated as untouchables -
    either temporarily or otherwise for various reasons, such as, suffering
    from infectious disease or on account of social boycott resulting from
    caste or other dispute. In either case such persons can claim the
    protection or benefit either of Article 17 or of the 1955 Act!

            In exercise of the powers confered by Article 35 Parliament has
    enacted the Untouchability (Offences) Act 1955. This Act was amended
    by the Untouchability (Offences) Amendment Act 1976 in order to make
    the law more stringent to remove untouchability from the society. It has
    now been renamed as, The Protection of Civil Rights Act, 1955. The
    expression "Civil Right" is defined as "any right accuring to a person by
    reason of the abolition of untouchability on the ground of untouchability
    by Article 17 of the Constitution." Under the amended Act any                   '

    discrimination on the ground of untouchability will be considered an
    offence. It imposes a duty on public servants to investigate such offence.
     It provides that if a public servant, wilfully neglects the investigation of
    any offence punishable under this Act, he shall be deemed to have
    abetted an offence punishable under this Act.                          -
    Constitutional Provisions for Women
            Article 6- (1) & (2) prohibit discrimination on ground of sex in
    offices. Article 39-A provides to have. right to adequate means of
    livelihood. Article 51-A-E provides that it would be the duty of every
    citizen to renounce practices derogatory to the dignity of women and the
    rights of the women can be illustrated by the following laws:-

          A vast majority of woman are ignorant of the protective laws or
    even of their existence. The law has there-fore remained an ineffective
    instrument of social change for equality for women. Amendments have
    been brought about from time-to-time in the existing legislations relating to

'   6.    AIR 1958 Mysore 84. Devarajlah v. Padmanna
 Vol. IX:ll]                  SOCIAL JUSTICE                             189

Hindu Marriage Act, Child Marriage Restraint Act, Equal Remuneration
Act, Factories Act, Maternity Benefit Act and Immoral Traffic Prevention
Act. A new enactment, the Indecent Representation of Women
(Prohibition) Act 1986 and the Commission of Sati (Prohibition) Act 1987
have also been passed to protect women. Legal aid and literacy services
are available to women at all levela. But even then, women remain without
the intended protection. The need of the hour, therefore, is to make them
aware of their rights and the legal aid to be resorted to in case of violation
of the same.
Suggestions
       A serious attempt should be made for Uniform Civil Code. A legal
restriction should be impose on the power of making will to deprive
female heirs. Among the Hindus, Christians and Parsees. Muslim wife
should be given a right to divorce her husband on his second marriage
and Muslim Law to be amended on the lines of muslim families Laws
Ordinance 1961, of Pakistan. A Uniform Civil Code may be made and all
the laws pertaining to marriage and divorce should be amended and
introduced amongst all the Indians.

       Family courts should be set up immediately and the functioning of
these courts should be not as formality but it should be in real spirit for
creating awareness of legal rights and legal literacy. The women and
children should be given proper education pertaining to their rights.
Proper implimentation of all the laws pertaining to children as well as
women should be ensured and legal aid and advise should be provided
without any economic base, or disqualification.

       Significant steps should be taken to impliment all the laws which
are amended to facilitate detection, prevention and punishment of crimes
against women, and exploitation of children. Article 21 should be
attracted to the cases of children employment in dangerous
employments, because there is a anamoly in Article 24 and 23, which
need to be amended.

       Labour laws pertaining to children and women should be properly
implemented and a time-bound mechanism should be set up for the
follow of action, otherwise all the provisions will remain on the papers
and there can be no proper social justice to this section of the society
which is suffering on account of sex and age.