Exploring the constitutional mandate and judicial role in ensuring equal, fair and inclusive society

According to the Oxford English Dictionary, the word “justice” means the “administration of law or equity.” The concept of justice is as old as civilization and society. It is deeply ingrained in the roots of our Indian Civilization. The word ‘Justice’ finds its roots in a French word ‘JOSTISE’ which signifies righteousness, equity, vindication of right, administration of law. Justice can also be understood as the correct application of law, as opposed to arbitrariness. A society cannot exist without the presence of justice, which is one of the most important pillars of any nation.
The Constitution of India was adopted by the constituent assembly on 26 November 1949 and came into force on 26th January 1950. The preamble of the Constitution declares India to be a Sovereign Socialist, Secular, Democratic Republic committed to Justice, Equality, Liberty for the people. It is a brief introductory statement that highlights the ideals, objectives, and sets out as guiding philosophy and principles of the document and it indicates the source from which the document derives its authority, meaning the people. At the time of independence, the framers of the Constitution were deeply inspired by the feeling of social equality and social justice. For the aforesaid reason, they incorporated such provisions in the Constitution of India which reflect its form as a social welfare state.
According to the United Nations, Social justice may be broadly understood as the fair and compassionate distribution of the fruits of economic growth. Simply speaking, a fair and equal distribution of resources, opportunities, and privileges in society is referred to as social justice. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of the personality of every citizen. Social justice is thus an integral part of justice in the generic sense.
The expression “socialist” was purposely inserted in the Preamble. Highlighting the significance of the expression socialist in the Preamble, the Supreme Court in Excel Wear v Union of India on 29 September 1978, “held that the addition of the word ‘socialist’ may enable the courts to lean more in favour of nationalization and state ownership of industry. But, so long as private ownership of industries is recognized which governs an overwhelming large principles of socialism and social justice cannot be pushed to such an extent so as to ignore completely, or to a very large extent, the interest of another section of the public, namely the private owners of the undertaking. Elucidating the purpose & aim of a Socialist state, the apex court, in D.S. Nakara v. Union of India & Ors. on 17 December 1982, observed “that the principal aim of a socialist state is to eliminate inequality in income, status and standards of life. The basic framework of socialism is to provide a proper standard of life to the people, especially, security from cradle to grave. Among these, it envisaged economic equality and equitable distribution of income. This is a blend of Marxism & Gandhism, leaning heavily on Gandhian socialism. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society reveals a long march, but, during this journey, every state action, whenever taken, must be so directed and interpreted so as to take the society one step towards the goal.”
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 the absence of privileges being extended to any particular section of society, and improvement in the conditions of backward classes (SCs, STs, and OBCs) and women. Economic justice denotes the non-discrimination between people on the basis of 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’. Political justice implies that all citizens should have equal political rights, an equal voice in the government. The term ’equality’ means the absence of special privileges to any section of society and the provision of adequate opportunities for all individuals without any discrimination. The Preamble secures at all citizens of India equality of status and opportunity. This provision embraces three dimensions of equality – civil, political, and economic.
The following provisions of the chapter on Fundamental Rights ensure civic equality: (a). Equality before the Law (Article 14). (b). Prohibition of discrimination on grounds of religion, race, caste, sex of place of birth (Article 15). ©. Equality of opportunity in matters of public employment (Article 16). (d). Abolition of untouchability (Article 17). (e). Abolition of titles (Article 18). There are two provisions in the Constitution that seek to achieve political equality. One, no person is to be declared ineligible for inclusion in electoral rolls on grounds of religion, race, caste or sex (Article 325). 2nd, elections to the Lok Sabha and the state assemblies to be on the basis of adult suffrage (Article 326).
Articles 36 to 51 incorporate certain directive principles of State policy which the State must keep in view while governing the nation, but by Article 37 these principles have been expressly made non-justiciable in a court of law. These principles shall not be cognizable by any Court they are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in framing laws. They are enumerated in Part IV of the Constitution. They can be classified into three broad categories – socialistic, Gandhian and liberal-intellectual. The directive principles are meant to promote the ideal of social and economic democracy. They seek to establish a ‘welfare state’ in India. The Constitution itself declares that ‘these principles are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’. Emphasizing the importance of Directive principles enlisted in Part-IV of the Constitution, the apex court in Minerva Mills & Ors. V Union of India & Ors. on 31-07-1980, observed: that the importance of Directive Principles in the scheme of our Constitution cannot ever be over-emphasized. Those principles project the high ideal that the Constitution aims to achieve. In fact Directive Principles of State Policy are fundamental in the governance of the country and there is no sphere of public life where delay can defeat justice with more telling effect than the one in which the common man seeks the realization of his aspirations. But to destroy the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure. Parts III and IV are like two wheels of a chariot, one no less important than the other. Snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution which is the ideal that the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.
Social justice is a dynamic device to mitigate the sufferings of the poor, weak, tribals etc and deprived sections of society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain a substantial degree of social, economic, and political equality, which is the legitimate expectation of every section of society. Reiterating the constitutional importance of Social Justice, the Supreme Court, In Nagaraj & Others vs Union Of India & Others on 19 October 2006, observed: “that the amendments which may abrogate individual rights but which promote the Constitutional ideal of ‘justice, social, economic and political’ and the ideal of ‘equality of status’ are not liable to be struck down under Article 14 or Article 16(1) and consequently, such amendments cannot violate the basic structure of the Constitution.” In Ramon Services Pvt. Ltd. vs Shri Subhash Kapoor & Others on 10 September 1999, R.P. Sethi, J. observed thus: “After independence, the concept of social justice has become a part of our legal system. This concept gives meaning and significance to the democratic ways of life and of making life dynamic. The concept of the welfare state would remain in oblivion unless social justice is dispensed. Dispensation of social justice and achieving the goals set forth in the Constitution are not possible without the active, concerted, and dynamic efforts made by the person concerned with the justice dispensation system.” In Som Prakash Rekhi v. Union of India on 14 November 2000, Krishna Iyer, J., has stated thus: “Social justice is the conscience of our Constitution, the State is the promoter of economic justice, the founding faith which sustains the Constitution and the country is Indian humanity. The public sector is a model employer with a social conscience not an artificial person without a soul to be damned or a body to be burnt.” In the Case of S.R Bommai v. Union of India, the apex court held “that social justice and judicial review are two basic features of the Indian constitution. Elaborating on the concept of equality envisaged in the Constitution, Bhagwati Justice, In a landmark judgment, E.P. Royappa vs. the State of Tamil Nadu, on 23-11-1973, “held that equality is a dynamic concept which has many aspects and dimensions. It cannot be “cribbed, cabined and confined” within the traditional and doctrinaire limits. From a positivistic point of view, equality is antithetical to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strikes at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be a denial of equality.”
Equality with equal behaviour prohibits arbitrariness in action; inequality is surely there. To accept the right to equality as an essential element of Justice, the Indian Constitution prohibits unequal behaviour on the grounds of religion, race, caste, or sex. However, the constitution accepts that strict compliance with 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 citizens 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 is not adequately represented under state employment, the state shall make any provision for the reservation of appointments. According to Art 46 the State shall promote with special care the educational and economic interests of weaker sections of the people, and in particular, of the scheduled castes and the scheduled tribes, and shall protect them from social injustice and all forms of exploitation. In a landmark case, Indra Sawhney Etc. vs Union Of India And Others, on 16 November 1992, the Supreme Court declared 27% reservation legal for socially and economically backward classes of society under central services.
Basically, protective discrimination is used to fulfill those lacks which arise due to a long time of deprivation. It is a part of corrective and compensatory justice. It has been said that people of the backward class of society have been bearing injustice from generation to generation. Some people in society have supremacy over the benefits of society and are deprived of others. So this provision of protective discrimination has been made for those deprived people who are living in unbeneficial circumstances. Through equal opportunity on the basis of quality, the Supreme Court has tried to make a reasonable balance between the distribution of benefits and distributive justice. Our judicial system is the enforcer and protector of Justice. Explaining the role of the Judiciary for the protection of the preambular promise made by the Constitution, the apex court, In People’s Union For Democratic Rights vs Union Of India & Others on 18 September 1982, held, “that minimum wages must be given and not to pay minimum wages is the violation of human dignity and it is also known as exploitation. In India, courts have performed a great role in making Social Justice successful. In the field of distributive Justice, the Legislature and Judiciary both play a great role but courts play a more powerful role in delivering compensatory or corrective justice but these principles are known as mutual relatives, not mutual opposites. Ideals and goals are to deliver social justice. The medium may be distributive or compensatory justice. The adopted type may be of quality, Necessity, Equality, Freedom, Common interest, or other. Although the Supreme Court has not found any possible definition of Social Justice but has accepted it as an essential organ of the legal system.
The Supreme Court of India has given a principal and dynamic shape to the concept of social justice. Social justice has been the guiding force of the judicial pronouncements.” In Harjinder Singh vs Punjab State Warehousing Corp. on 5 January 2010. Supreme Court Observed that judges, especially the judges of the highest court, have a vital role in ensuring that the promise is fulfilled. If the judges fail to discharge their duty in making an effort to make the Preambular promise a reality, they fail to uphold and abide by the Constitution which is their oath of office. In my humble opinion, this has to be put as high as that and should be equated with the conscience of this Court. That being the legal position, under, Article 38 of the Constitution, a duty is cast on the State, which includes the judiciary, to secure a social order for the promotion of the welfare of the people. Article 38(1) runs as follows:
The State shall strive 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.” This is echoing the preambular promise. Conclusion: Social justice is a preambular promise that accomplishes a wide range of issues and advocates for the fair and equal treatment of all people, regardless of race, religion, gender, colour, sexual orientation, disability, or socio-economic status. The Constitution promotes social justice so that the life of every individual becomes meaningful and he is able to live with peace and dignity. We all dream and strive to live a better world. A world that is fair, just, and peaceful. This dream can be achieved in a society that is based on the social justice principle. For this, systemic and ideological changes are needed. Changing our economic, social, moral, educational, and government institution system to one based on social justice is a step forward. Social justice has relevance in governance and public policies as it is socially, politically, economically, and morally significant. Social justice is a vital element to be taken into account by the government during the framing and execution of public policies, rules, regulations, and laws. Governance is a great way to implement social justice on a broader and deeper scale. Governments must make the extra effort and try to imbibe the principle of social justice in every and all decisions of theirs. The idea of the welfare state and constitution can only be achieved if the state endeavours to implement them with a high sense of moral duty. We should strive to promote the welfare of the people by securing and protecting a social order in which justice social, economic, and political shall inform all the Institutions of National life. The need of the hour is to ensure the proper and balanced implementation of policies in accordance with a preambular promise of social justice for fulfilling the dream of a just, fair, and welfare state.
The writer is a Government Law Officer, the Department of Law, Justice & Parliamentary Affairs, UT of J&K, and is pursuing a Masters In Political Science through IGNOU. He can be reached at [email protected]

Mudasir Mushtaq Khan