The role of judiciary in access to socio-economi and distributive justice

ABSTRACT The function of the Republic is to secure, inter alia, social, economic and political justice. To secure justice to the people under the law, courts with broad powers have been established in the country. The crafters of the Constitution have assigned to courts the massive task of dispute settling and securing justice to all- social, economic and political. From Kesavanand Bharti to Judges’ Transfer case and from Rupa Ashok Hurra to Shatrughan Chauhan a lot have been done to ensure social justice at grass root level. Expansion of the scope of locus standi, judicial review of ninth schedule, pronouncement of curative petitions et all is the steps taken to benefit marginalized class. Inclusion of ‘livelihood’ in the domain of right to life, enabling the people with ‘Right to Know’, placement of free and compulsory education under the category of fundamental rights etc. are the milestone on the path of access to justice. How far Supreme Court succeeds in broadening the scope of access to justice? To what extent are we successful in achieving social and economic justice to all, thereby the welfare nation? This paper is an effort to overview the role of judiciary as an instrument for the delivery of fair and equitable justice, resistant to governmental apathy as well as economic and social privilege. The paper addresses the Supreme Court’s approach to increasing access to justice and overcoming these impediments, especially through procedural innovations such as broadened locus standi and non-adversarial, investigative proceedings using court appointed investigative commissions and amicus curiae.

NATIONAL LAW UNIVERSITY JODHPUR

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TABLE OF CONTENTS TITLE

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Introduction ……………………………………………………………………………………….4 Access to Justice ………………………………………………………………………………….5 Concept of Egalitarian Society …………………………………………………………………...6 Preamble viz-a-viz Egalitarian Values ……………………………………………………………7 Egalitarianism and Fundamental Rights ………………………………………………………….8 Egalitarianism and DPSP …………………………………………………………………………9 Distributive Justice ………………………………………………………………………………10 Distributive Social Justice ……………………………………………………………………….11 Distributive Economic Justice …………………………………………………………………..13 Socio-Economic Justice and Constitutional Mandate …………………………………………..15 Role of Judiciary in Access to Socio-Economic Justice ………………………………………...16 Social Economic Justice through PIL …………………………………………………………...17 Social Justice and Epistolary Jurisdiction ……………………………………………………….18 Right to Food and Social Justice ………………………………………………………………...18 Social Justice and Health ………………………………………………………………………..19 Social Justice and Right to Education …………………………………………………………..19 Environmental Justice …………………………………………………………………………..22 Conclusion ………………………………………………………………………………………23 Bibliography …………………………………………………………………………………….24


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INTRODUCTION The preamble states that the people of India have given the Constitution to themselves to secure to all its citizens justice- social, Economic and political; Liberty; Equality and Fraternity assuring the dignity of the individual. These principles are characterized as ‘basic to our social order’ as they seek to build a socially just society. During pre-constitutional era Adam Smith’s laissez faire philosophy came into being. ‘Laissez faire’ means principle of non-interference, meaning thereby, minimum of law, minimum of state interference (control) and maximum of individual liberty. In economic field also it says that there should not be any state control or state regulation on the activities of the individual on his economic activities. During this period courts were directed to keep away from social ethical and equitable consideration and follow strictly the form and letter of the law. In twentieth century, as a reaction to the theories of laissez faire, arose the concept of ‘Welfare State’. Welfare state means that state should intervene in economic matters in the interests of social justice. With a view to save weaker section of the society political dogma, ‘Collectivism’ came into being. In course of time out of the collectivism, emerged the concept of the welfare state.1 India, which was police state till 1947, was not very much concerned with the welfare of the people. But soon after independence everything changed. The concept of welfare state has been expressly ingrained in the Preamble to the Constitution- 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 the national life2. Since then all efforts are being made to transform the country into a social welfare state. 3 Vast provisions have made to bring into existence socially and economically just society. Fundamental rights enshrined in Part III and the Directive Principles of State Policy incorporated in Part IV of the Constitution along with the Preamble form the very basis of the Welfare State.

1

Saxena, D.R., Social Change: Through Rule of Law or Rule of Legislation?, 9, (Saxena, D.R., Ed., Law, Justice and Social Change, New Delhi, Deep & Deep Publication, 2008) 2 Article 38(1), Constitution of India, 1950 3 Ibid.


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No doubt the courts have always been attached very great importance to the preservation of human liberties. The judiciary was called upon to play an important role in preventing and remedying abuses and misuses power and eliminating exploitation and injustice. ACCESS TO JUSTICE Access to justice in different contexts used differently. It is entwined with the meaning of the term justice. Traditionally access to justice means to open up the formal systems of the law to disadvantaged groups in society. This includes removing not only legal and financial barriers, but also social barriers such as language, lack of knowledge of legal rights and intimidation by the law and legal institutions. Thus, Access to justice has two dimensions:

Procedural Access- having a fair hearing before a tribunal, and

Substantive Justice- to receive a fair and just remedy for a violation of one’s rights.

Access means approach, entry into. Accessible includes the idea of being able to influence. So access to justice means more than being able to raise one’s case in a court or other relevant institution of justice. Justice is defined as fairness; in the legal and political sphere, it usually means ‘exercise of authority in maintenance of rights’. Fairness covers both, the procedural access and the substantive rules that determine the exercise of authority. Access to justice therefore means the ability to approach and influence decisions of those organs which exercise the authority of the state to make laws and to adjudicate on rights and obligations. Justice is a term which has been used to portray a number of ideas including fairness, equality, and lawfulness. When we talk of justice in the broader sense, we have to bear in mind the definition given in Justinian’s Corpus Juris Civilis which states that; “Justice is constant and a perpetual will to render to everyone that to which he is entitled”. Similarly, Cicero described justice as “the disposition of the human mind to render everyone his due”. Thus, the rights guaranteed to persons are inherent in the very notion of justice. The concept of justice ought to activate the court to find a way to resolve the erroneous approach to the problem. The Supreme


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Court observed “Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way”.4 Justice is defined in terms of rights. Access to justice defined in its simplest would include the ability of any person to approach the appropriate authority and effectively claim the enforcement of rights. Thus, access to justice, in more real terms, would include the sum total of all those rights and remedies available to a person through which he can seek the enforcement of his or her rights.The role of law in this context has to be that which provides a substantive basis through which a person can legally seek the enforcement of his or her rights. Constitution has already provided us with a set of fundamental rights which guarantee, inter alia, the right to life and personal liberty, freedom of speech and expression, the right to equality and the right to move the court of law in the event of violation of these rights5. Luckily though, the Judiciary has been able to expand these basic rights guaranteed by the supreme lex to include various rights which make access to justice easier. The giant step taken towards was the expansion of the scope of Locus Standi. In S.P. Gupta v Union of India6 it was held that “any member of the public or social action group acting bonafide” can invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation of a legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court. CONCEPT OF EGALITARIAN SOCIETY The concept of egalitarianism emerged from the word "egalite" which means relative equality in the socio-economic lives of the people. Egalitarianism, as the nomenclature suggests, believes in an equitable social order, where men and women would be able to develop their personalities, without any outside hindrance. It also presupposes the elimination of all forms of discrimination and segregation. Untouchability, the policy of apartheid or racial discrimination as pursued by some erstwhile societies (till recently in South Africa and Namibia) is anathema to the principle of egalitarianism. French Revolution like Rousseau, Montesquieu and Voltaire can be regarded

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1993 Supp (4) SCC 595 See Article 32 & 226 Constitution of India, 1950. 6 AIR 1982 SC 149

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as the originators of the concept of egalitarianism though it was given a concrete socio-economic orientation in the famous writings of Karl Marx and Lenin. In the Indian context, during freedom struggle, the writings of Swami Viveknanda, Dadabhai Naoroji, M.N. Roy, Subhas Chanra Bose and Gandhiji, the egalitarian values have figured very prominently. From this, we infer that egalitarianism is basically concerned with equality and lack of discrimination or segregation. PREAMBLE AND EGALITARIAN VALUES The Preamble to the Constitution is an embodiment of egalitarian values. After 42nd Constitutional Amendment Act, 1976 the Preamble reads thus; "We, the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic and to secure all its citizens: JUSTICE, social, economic, political; LIBERTY, of thought, expression, belief, faith and worship; EQUALITY, of status and opportunity and promote among them all; FRATERNITY, assuring the dignity of the individual and unity and integrity of the Nation; In our constituent Assembly, this twenty-sixth day of November, 1949 do hereby Adopt, Enact and Give Ourselves This Constitution". The Preamble clearly establishes that the Indian people are one irrespective of their socioeconomic status and are the ultimate source of all authority. While justifying the sovereign power of the people in a famous Supreme Court Judgement, in 1950, Justice Patanjali Shastri observed, "There can be no doubt that the people of India in the exercise of their sovereign will, as expressed in the Preamble, adopted the democratic ideal which assures to the citizens the dignity of the individual and other cherished human values as a means to the full evaluation and expression of his personality, and in delegating to the Legislature, the Executive and the Judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights". Further, the four basic principles of an egalitarian society—Justice, Liberty, Equality and Fraternity are very categorically highlighted in the Preamble. In the words of a famous jurist,


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L.M. Singhvi, "These four conceptual objectives of our constitution are intended to animate its value system, to enliven its institutions and instrumentalities and to inspire not only the exertions and actions of the state but also the endeavors of the society and the individual citizens". The main aim of our constitution is to establish a Welfare State and an Egalitarian Society projecting the aims and aspirations of the common people of India who made unparalleled sacrifices to achieve freedom. From the Preamble, we can infer that it is the people of India who have given to themselves the Constitution. The idea of a Welfare State and an Egalitarian Society can be realized by providing socio-economic justice to the people along with political justice. EGALITARIAN VALUES AND FUNDAMENTAL RIGHTS There are some prominent Articles in Part III of the Constitution which deal with egalitarian ethics. These are known as the Fundamental Rights. In the Part III on Fundamental Rights, Constitution affirms the basic principle that every individual is entitled to enjoy certain rights as a human being. The cherished goal of a welfare State cannot be achieved unless there is equality of status and opportunity and also justice in the political, social and economic spheres. Therefore, Article 14 of the Constitution guarantees equality before law and equal protection of laws to all irrespective of their socio-economic status. Article 15 prohibits any discrimination in public life on grounds of religion, race, caste, sex, and place of birth or any of them. With the egalitarian values in mind, Clause 4 of Article 15 empowers the State to make special provisions for the advancement of any socially and educationally backward classes of society. Clause 1 Article 16 states that there shall be equality of opportunity for all citizens in matters relating to employment in Central and State Government, Public Sector Undertakings and in local bodies like Corporations, Municipalities and Panchayat. Clause 2 of Article 16 lays down that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of any employment under the Indian State. Under Article 17of the Constitution untouchability has been 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.


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Article 19 deals with the six freedoms available to citizens irrespective of their socio-economic status. These freedoms are in the domains of speech and expression, peaceful assembly, forming associations, free movement throughout the territory of India, residence, acquiring or disposing of property, practicing any profession or carrying on any trade. Taking care of the egalitarian ethics the State shall have the right to impose reasonable restrictions on these freedoms, so that, the rich and powerful citizens do not misuse them at the cost of the poor and the downtrodden. Another prominent right ensuring social justice is the right against exploitation under Articles 23 and 24. Our Constitution recognizes the dignity of the individual and protects him against any form of exploitation either by the State or by the privileged classes in our society. Abolition of child labour, immoral trafficking in women and bonded labour by the Government of India are in accordance with these Articles. These Articles are very crucial in the sense that, protection of women and children against any inhuman exploitation has been possible under this provision. Gender equality has also been ensured under Articles 14, 15 and 23. Thus all the above mentioned provisions under the heading of fundamental rights, are directly or indirectly concerned with social, economic and political equality. And all these are very closely linked with the core egalitarian values. EGALITARIANISM AND DIRECTIVE PRINCIPLES Our founding fathers were convinced that, democracy in an underdeveloped country like India on the eve of independence could have a meaning for the bulk of people only if it was accompanied by social change. In order to realize the dream of social and economic democracy, Directive Principles of State Policy have been included in Part IV of our Constitution. The promises of curbing monopoly and concentration of wealth, promoting the interest of social good, of land reforms, of free and compulsory education for all children until the age of 14, were some of the pious declarations made under the Directives for the establishment of a stable and egalitarian democracy. Directives are like commands to the Central and State Governments as well as Public Sector Undertakings to follow certain basic principles while formulating their policies. Article 38 clearly states that the State shall strive to promote the welfare of the people by securing and protecting an egalitarian social order in which justice, social, economic and political shall affect all the institutions of national life. NATIONAL LAW UNIVERSITY JODHPUR

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Article 39 provides that the State shall in particular, direct its policy towards securing (a) for all citizens, men and women equally, the right to an adequate means of livelihood; (b) distribution of ownership and control of material resources of the community to subserve the common good; (c) operation of the economic system as not to result in the concentration of wealth and means of production to the detriment of any sections of our society; and (d) equal pay for equal work for both men and women. In order to protect the dignity of the individual, Article 42 prescribes for "just and human conditions of work" and Article 43 talks of a decent standard of life and full enjoyment of leisure and socio-cultural opportunities. Our ideal of egalitarianism and fraternity is not confined to internal issues only, but also throws light on our quest for a universal brotherhood on the basis of goodwill towards all nations and malice towards none. In the quest for equality among the nation-states, Article 51 suggests that Article 51: The Indian government shall endeavor; a) to promote international peace; b) maintain just and honorable relations between nations; c) foster respect for international law and treaty obligations in the dealings of organized people with one another; and d) To encourage settlement of international disputes by arbitration". Thus our sense of egalitarian values often crosses the barriers of our state boundary and in this respect, India has been an example to many developing nations of Asia, Africa and Latin America. DISTRIBUTIVE JUSTICE A combination of social justice and economic justice denotes what is known as ‘distributive justice’. The constitution of India does not completely dedicated to any traditional ideology as – equalitarian or utilitarian theory etc. Dedication of constitution is embedded in progressive concept of social justice and various rules of justice such as- justness, fairness and reasonableness 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. NATIONAL LAW UNIVERSITY JODHPUR

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"The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India" incorporated in Article 14 denote 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 backward classes,7 which is the attribute of corrective and compensatory justice.

DISTRIBUTIVE SOCIAL JUSTICE

Constitution envisages the establishment of a welfare state at the federal level as well as the state level. In a welfare state the primary duty of the government is to secure the welfare of the people. 8 Economic and Social justice are the key ingredients of welfare. Founding fathers embedded social order based on social justice. The constitution commands idea of justice as supreme value to usher in the egalitarian social, economic and political democracy. As has been observed by the Supreme Court Social Justice, Equality and dignity of person are cornerstones of social democracy. Social justice concerns with the distribution of benefits and burdens throughout the society entitling every member of the society to enjoy the same level of well being as every other.9 Supreme Court Defined ‘Social Justice’ in Air India Statutory Corpn. v. United Labour Union 10 as, “the concept of social justice which the constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. Social Justice is thus an integral part of justice in the generic 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…..” In the case of S.R. Bommai v Union of India 11 court held that Social Justice and Judicial Review is the basic feature of the Constitution of India. Democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity. Socialistic concepts of society should be implemented in the true spirit of the Constitution. “Establishment of the egalitarian social order through rule of law is the basic structure of the 7

Article 15(4) and Art. 16(4) Constitution of India 1950 Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37 9 David Miller : Social Justice, 1976 Edition, page 317 10 AIR 1997 SC at 669 8

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AIR 1994 SC 1918


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constitution.”12 The court has laid emphasis on social justice so as to attain substantial degree of social, economic and political equality. Another idea propounded by the court is that socialism means distributive justice so as to bring about the distribution of material resources of the community so as to subserve the common good. In D. S. Nakara v. Union of India13, 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 socialism 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 interpreted so as to take the society one step towards the goal. The aim of social justice is to attain a substantial degree of social, economic and political equality. The preamble to the constitution read with the Directives Principles in Articles 38, 42, 43, 46 and 48A promotes the concept of social justice. The Supreme Court has firmly ruled in Balbir Kaur v/s Steel Authority of India (2000) 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/s Kuldeep Singh (1997) 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/s State of U.P. (1997) 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."

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Samatha v State of Andhra Pradesh, AIR 1997 SC 3297 (1983) 1 SCC 305


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In Consumer Education & Research Centre v/s Union of India (1995) 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 livable." DISTRIBUTIVE ECONOMIC JUSTICE “From each according to his capacity, to each according to his needs” is underlying principle upon which distributive economic justice works. This concept connotes, inter alia, the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society. In India there has always been emphasis on mixed economy, i.e., along with the public sector, the private sector also has a role to play. The government accepts the policy of mixed economy where both public and private sectors co-exist side by side. Further the constitution makers rightly perceived that mere political democracy would be meaningless in a country of the poor millions without economic justice. As has been observed by Dr. Ambedker in his concluding speech in Constituent Assembly debate; “Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity…” The constitution is thus an instrument to achieve the goal of economic democracy along with the political and social democracy. There is a very wide planning of justice according to necessity in the constitution. It expects distribution of social benefits according to necessity by which needier person can get benefits. Article 39 lays stress upon certain aspects of economic justice. It lay down principles of policy to be followed by the State. Accordingly, Article 39 requires that, in particular, to direct its policy towards securing: a) That all citizens, irrespective of sex, equally have the right to an adequate means of livelihood; b) That the ownership and control of material resources of the community are so distributed as best to subserve the common good;


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c) That operation of the economic system should not result in the concentration of wealth and means of production to the common detriment; d) That there is equal work for both men and women; e) That the health and strength of workers, men and women and tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; f) That the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The Supreme Court has taken recourse to Article 39 (a) to interpret Article 21to include therein the ‘right to livelihood’. The Supreme Court has observed in Olga Tellis v. Bombay Municipal Corporation14: “if there is an obligation upon the state to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life”. Keeping with principles embodied in Article 39 (a) Supreme Court in Mahesh Gupta v. Yashwant Kumar Ahirwar,15 held that reservation for women or handicapped persons was not subject to the percentage of 50% as prescribed in Indra Sawhney v. Union of India. Article 39 (b) and (c) are very significant constitutional provisions as they affect the entire economic system in India. They relates to distribution of ownership and control of material resources of the community. An Act falling under Clauses (b) and (c) of Article 39, must have the operation in the economic system and concentration of wealth. Taking over of management by the government of a sick textile mills has been characterized as being in furtherance of Article 39 (b) and (c).16 Under Article 41, it is expected to the state that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education

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AIR 1986 SC 180 (2007) 8 SCC 261 16 N.T. Corporation Ltd. v. Sitaram Mills, AIR 1986 SC 1234 15


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and to public assistance in case of unemployment, old age, sickness and disablement, and in other cases of underserved want. It is provided under Article 42 that the state shall make provision for securing just and humane conditions of work and for maternity relief. In Article 43 it is expected that the State shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the state shall endeavor to promote cottage industries on an individual or co-operative basis in rural areas. The Supreme Court has in number of decisions referred to the concept of socialism and has used this concept along with the Directive Principles of State Policy to asses and evaluate economic legislation. The court has derived the concepts of social justice and of an economically egalitarian society from the concept of socialism. According to Supreme Court, “the principal aim of socialism is to eliminate inequality of income and status and standards of life, and to provide a decent standard of life to the working people.”17 In Peoples Union of Democratic Rights vs. Union of India,18 the Supreme Court has 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. SOCIO-ECONOMIC JUSTICE AND THE CONSTITUTIONAL MANDATE Our Constitution incorporates the principles of social-economic justice besides the preamble in parts III, IV X, XVI, Schedule V and VI. In particular Articles 14, 15(4), 15(5), 16(4), 16(4A), 16(4B), 17, 19, 23, 24, 38, 39, 40, 46, 330, 332 and 334, 335 to 342 are set to achieve the desired goal of social, economic and political justice Articles 14 to 16 incorporate principles of equality and non discrimination while at the same time they also comprehend affirmative action in clauses (4) and (5) of Article 15 and clauses 4, 4A and 4B of Article 16. By Article 17 the abominable and degraded practice of untouchability was abolished and untouchability practiced in any form was made penal offence. Articles 23 and 24 relate to right against exploitation and prohibition of forced labour and employment of children in factories. 17 18

D.S. Nakara v Union Of India, AIR 1983 SC 130 AIR 1982 SC 1473


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Articles 38 to 48 forming part of directive principles embodied in Part IV incorporate the principles for socio economic transformation of the society. Special mention has to be made in respect of Article 46 directing the state to promote the educational and economic interests of weaker sections and in particular Scheduled Castes, Scheduled Tribes and other Backward Classes. Articles 330, 332 relate to reservation of seats in Lok Sabha and Legislative Assemblies in favour of Scheduled Castes and Scheduled Tribes and seats so reserved are in proportion to their population. Article 335 recognizes the claims of the members of Scheduled Castes and Scheduled Tribes for appointment to services and posts in the Union and the States consistent with the maintenance of efficiency in administration. By the Constitution (82nd Amendment) Act 2000 the state is empowered to relax qualifying marks in any examination or lowering of standards of evaluation in matters of promotion concerning Scheduled Castes and Scheduled Tribes. By the Constitution 65th Amendment Act, Article 338 was amended by which in the place of the Special Officer for the Scheduled Castes and Scheduled Tribes, a National Commission was established to investigate and monitor all matters relating to the safeguards provided for these classes, to enquire into specific complaints with regard to deprivation of rights and safeguards, to render advice on the planning process of their socio economic development and to evaluate the progress achieved. ROLE OF JUDICARY IN ACCESS TO SOCIO-ECONOMIC JUSTICE The essence of socio-economic justice in a country can be valued only in terms of positive, material and substantive benefits to the working people in the form of services rendered by the State. In other words, socio-economic justice would demand removal of alienation, and gaps between sections of society. It also suggests mobility in social and economic life. It expresses concern for the common man, for the poor and deprived sections of the society, those who have suffered for centuries and have borne silently the sufferings of social and economic exploitation. Thus, socio-economic justice, in, the negative sense means, curtailment of the privileges of a few in our society, while positively it suggests that the poor and the exploited sections of our society


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should have all rights and opportunities to improve their status and rise to high positions of power.19 In India, courts have performed a great role to make the Social justice successful. In the field of distributive Justice, Legislature and Judiciary both are playing great role but courts are playing more powerful role to deliver compensatory or corrective justice but these principles are known as mutually relatives not mutually opposites. Ideals and goals are to deliver social justice. 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 Justice20 but has accepted it as an essential and an organ of legal system. The supreme court of India has given a principal and dynamic shape to the concept of social justice. Social justice has been guiding force of the judicial pronouncements. In Sadhuram v. Pulin21, the Supreme Court ruled that as between two parties, if a deal is made with one party without serious detriment to the other Court would lean in favour of weaker section of the society. The judiciary has given practical shape to social justice through allowing affirmative governmental actions are held to include compensatory justice as well as distributive justice which ensure that community resources are more equitably and justly shared among all classes of citizens. The concept of social justice has brought revolutionary change in industrial society by charging the old contractual obligations. It is no more a narrow or one sided or pedantic concept. It is founded on the basic ideal of socio-economic equality and its aim is to assist the removal of socio- economic disparities and inequalities. In J.K. Cotton Spinning and Weaving Co. Ltd. v. Labour Appellate Tribunal,22 the Supreme Court of India pointed out that in industrial matters doctrinaire and abstract notions of social justice are avoided and realistic and pragmatic notions are applied so as to find a solution between the employer and the employees which is just and fair. SOCIO-ECONOMIC JUSTICE THROUGH PUBLIC INTEREST LITIGATION

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Available at < http://www.ncte-india.org/pub/human/chap8.htm> (Last visited on 15.03.2014) Mysore Mills Co. Ltd. vs Sooti Mill Mazdoor Union AIR 1955 SC 170 21 AIR 1984 SC 1471 22 AIR 1964 SC 737 20


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In People’s Union of Democratic Rights vs. Union of India23 the Supreme Court has 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. An important step in the area of gender justice was the decision in Vishaka v. State of Rajasthan. 24 The petition in that case originated from the gang-rape of a grassroots social worker. In that opinion, the Court invoked the text of the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) and framed guidelines for establishing redressal mechanisms to tackle sexual harassment of women at workplaces. Though the decision has come under considerable criticism for encroaching into the domain of the legislature, the fact remains that till date the legislature has not enacted any law on the point. It must be remembered that meaningful social change, like any sustained transformation, demands a long-term engagement. Even though a particular petition may fail to secure relief in a wholesome manner or be slow in its implementation, litigation is nevertheless an important step towards systemic reforms. SOCIAL JUSTICE AND EPISTOLARY JURISDICTION Evolution of Epistolary Jurisdiction by the Supreme Court has substantially contributed to the distribution of Social and Economic justice in India. In it letters have been treated as writ petitions without requiring the help of lawyers to move the courts.25 It was evolved in the case of Sunil Batra v. Delhi Administration,26 wherein a letter, written by a prisoner lodged in jail to a Judge of the Supreme Court, has been considered as the Writ Petition. The prisoner in that letter complained of a brutal assault committed by a Head Warden on another prisoner. The Court treated that letter as a writ petition, and, while issuing various directions, opined that: “…technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found”. RIGHT TO FOOD AND SOCIAL JUSTICE

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AIR 1982 SC 1473 (1997) 6 SCC 241 25 Bandhua Mukti Morcha v. Union of India. (1984)3 see 161 26 (1978) 4 SCC 494 24


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A recent example of this approach was the decision in People’s Union for Civil Liberties v. Union of India,27 where the Court sought to ensure compliance with the policy of supplying mid-day meals in government-run primary schools. The mid-day meal scheme had been launched with much fanfare a few years ago with the multiple objectives of encouraging the enrolment of children from low-income backgrounds in schools and also ensuring that they received adequate nutrition. SOCIAL JUSTICE AND HEALTH With regard to health, a prominent decision was delivered in Parmanand Katara v. Union of India.28 In that case, the court was confronted with a situation where hospitals were refusing to admit accident victims and were directing them to specific hospitals designated to admit ‘medico-legal cases’. The court ruled that while the medical authorities were free to draw up administrative rules to tackle cases based on practical considerations, no medical authority could refuse immediate medical attention to a patient in need. Court observed, denial to access to health care is violation of ‘protection of life and liberty’ guaranteed under Article 21. Strengthening the recognition of the ‘right to health’ in Indian Medical Association vs. V.P. Shantha29 it was ruled that the provision of a medical service (whether diagnosis or treatment) in return for monetary consideration amounted to a ‘service’ for the purpose of the Consumer Protection Act, 1986. Consequently the medical practitioner could be held liable under the Act for deficiency in service in case of negligence. Supreme Court in Novartis AG vs. Union of India, Supreme Court protecting the social rights of citizens held that the patent law concerns with social and economic interests. The Supreme Court thus in the instant case protected both, the social rights of the people i.e., right to health and Economic justice. SOCIAL JUSTICE AND RIGHT TO EDUCATION Education is the basic right which must be granted to all for the proper development of the nation because it increases the productivity of the citizens of that country and thus is directly 27

(2007) 1 SCC 728 AIR 1989 SC 2039 29 AIR 1996 SC 550

28


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proportional to the welfare of the people. Chief Justice S.R. Das in the advisory opinion of the Supreme Court In re Kerala Education Bill, 1957 to express that: “One of the most cherished objects of our Constitution is to secure to all its citizens the liberty of thought, expression, belief, faith and worship. Nothing provokes and stimulates thought and expression in people more than education. It is education that clarifies our belief and faith and helps to strengthen our spirit of worship”. In Francis Coralie Mulin vs. Administrator, Union Territory of Delhi 30 (1981), Justice Bhagwati observed: “The fundamental right to life which is the most precious human right and which forms the arc of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. We think that the right to life includes right to live, with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about, mixing and co-mingling with fellow human beings.” In case of Miss. Mohini Jain vs. State of Karnatka31, for the first time in independent India, “Right to education” of the Indian citizens and the State obligation to secure the right came under scrutiny at the premises of the apex court. The Court said that “although 'right to education' had not been guaranteed as a fundamental right under Part III of the constitution, the Articles 21 (in Part III of the Constitution of India), Article 38, 39(a), (f), 41 and 45 (in Part IV of the Constitution of India) together makes it clear that the framers of the constitution made it obligatory for the State to provide education for its citizens. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by right to education.” The will demonstrated in Mohini Jain case continued in the later Constitution Bench decision in UnniKrishnan v State of A.P. and Ors.32 Wherein the Constitution Bench articulated that the fundamental right to education flows from Article 21. While declaring the right to education to 30

1981 AIR 746 1981 SCR (2) 516 1992 AIR 1858 32 AIR 1993 SC 2178 31


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be a fundamental right, it was held not to be an absolute right, and its content was defined by the parameters of Articles 45 and 41 of the Directive Principles. In this case the college management was seeking enforcement of their right to business through the charging of “capitation fees” from students seeking admission. The court expressly denied this claim and proceeded to examine the nature of the “Right to Education.” •

Whether “Right to education” under Articles 21, 41, 45 and 46 is a fundamental right?

•

Whether private aided recognised/affiliated educational governed by rules framed by Government in matters of admission of students and fee chargeable as also recruitment and conditions of service etc, of teachers and staff.

•

Whether private recognised/affiliated institutions obliged to act fairly consistent with Articles 14 and 15 and in accordance with conditions of grant of recognition affiliation?

The Court held that the right to basic education is implied by the fundamental right to life when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to endeavor to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14. T.M.A. Pai Foundation vs. State of Karnataka33 The scheme framed by the Court in Unnikrishnan case and thereafter followed by Government was held to be unreasonable restriction under Art-19(6) of the Constitution, in this case in respect of private unaided educational institutions. The Court was of the opinion that: “The scheme has the effect of nationalizing education in respect of important features viz. the right of unaided institutions to give admission and to fix the fee” The scheme relating to grant of admission and the fixing of the fee framed in Unnikrishnan Case, has been replaced by another judicially evolved scheme, thought as a temporary measure

33

(2002) 8 SCC 481: at page 539: AIR 2003 SC355


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in T.M.A. Pai as elaborated on in Islamic Academy of Education v/s. State of Karnataka34 and P.A. Inamdar v. State of Maharastra35. Joy Senior Secondary School vs. Union of India36 Supreme Right

Court of Children

on

26 to

March,

2013

it has been held:

Free

and

Compulsory

That

the

Education Act,

2009 is constitutionally valid and shall apply to the following: 1. A school established, owned or controlled by the appropriate Government or a local auth ority; 2. An aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; 3. A school belonging to specified category; and 4. An unaided nonminority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. ENVIRONMENTAL JUSTICE The Supreme Court, in its interpretation of Article 21, has facilitated the emergence of an environmental jurisprudence in India, while also strengthening human rights jurisprudence. There are numerous decisions wherein the right to a clean environment, drinking water, a pollution-free atmosphere, etc. has been given the status of inalienable human rights and, therefore, fundamental rights of Indian citizens. In Subhash Kumar v. State of Bihar37, the Court observed that: “The right to live is a fundamental right under Article 21 of the Constitution, and it includes the right of enjoyment of pollution-free water and air for full enjoyment of

34

(2003) 6 SCC 697: (2003) 5 JT 1 (2005) 6 SCC 537: AIR 2005 SC 3226 36 Available at< http://www.indiankanoon.org/doc/141205373/>(last visited on Sep17,2013) 37 AIR 1991 SC 420. 35


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life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution…” In Indian Council for Enviro-Legal Action v. Union of India,38 Supreme Court recognized the “polluter pays” principle as a fundamental objective of governmental policy to prevent and control pollution. In M.C. Mehta v Union of India 39 popularly known as Taz Trapezium case concept of sustainable development recognized. Recognizing state as a trustee of all natural resources court propounded the doctrine of ‘Public Trust’ in the case of M.C. Mehta v Kamal Nath40. The Court held that the state, as a trustee of all natural resources was under a legal duty to protect them, and that the resources were meant for public use and could not be transferred to private ownership.

CONCLUSION The framers of the constitution conferred Fundamental Rights and Directive Principles in the constitution so that the state should take endeavor towards making a welfare state. Though Directive Principles of State Policy cannot be claimed as a matter of right but state is under an obligation to provide its citizens with all those facilities like education, a descent livelihood, health, shelter and many other things which are essential to live a good life. The only thing to be done is to realize their essence and implement them in a proper manner so as to achieve the goal of a welfare state. Law alone cannot bring social justice. All the three wings of the government shall have to work together and transparently to promote the aim of constitution framers to achieve the socially and economically just society. Being the final interpreter of the Constitution, Supreme Court plays a crucial role in making the idea of social and economic justice real. Justice should mean justice according to certain principles of law rather than sympathy. The law courts have done much to dispense justice in true sense to all; much more have to be done. However, In the name of social justice even such activities are performed which have nothing to do with social justice. Courts should keep themselves off from judicial adventurism. The need of hour is to ensure the proper 38

(1996) 3 SCC 212. AIR 1997 SC 734 40 AIR 2000 SC 1997 39


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and balanced implementation of policies so as to make social justice an effective vehicle of social progress.

BIBLIOGRAPHY BOOKS REFERRED 1. DD Basu, Commentary on the constitution of India, 8th Edition, Vol. 3, Lexis Nexis Butterworths, (Nagpur: Wadhwa 2008) 2. Khosla, Madhav, Indian Constitution (New Delhi: Oxford India, 2012) 3. Jain, M.P., The Indian Constitutional Law, (Pal, Ruma, Rev., Nagpur: LexisNexis, 2013) 4. Austin, Granville, The Indian Constitution: Cornerstone of a Nation, (New Delhi: Oxford University Press, 2010) 5. Shukla,V.N. “Constitution of India” (Singh, M.P. ed., Lucknow, Eastern Book Comp., 2011) ARTICLES REFERRED


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1. Rohini

Dasgupta,

Essay

on

preamble

of

the

Indian

constitution

,

http://www.preservearticles.com/201104235906/essay-on-the-preamble-of-indianconstitution.html last visited on 5 September 2013 2. Effectiveness of directive principles of state policy, http://ssrn.com/abstract=1758849 last visited on 24th August 2013 3. Accessed from http://en.wikipedia.org/wiki/Directive_Principles_in_India last visited on 22nd September 2013


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The role of judiciary in access to socio-economi and distributive justice

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