Constitutional Law | Some Half-Hidden Aspects of Indian Social Justice— Part I
Social justice has a dynamic connotation and missionary message in the Third World context and in the Indian Constitutional setting. It is a solemn national tryst and the anti-poverty imperative of Independence and after. Political rhetoric, dubious officialese and even judicial dicta have showered hopes of a transformation from the status quo of blood, sweat and tears to a social order in which justice — social, economic and political — shall inform the warp and woof of national life. And yet cold realism convicts the institutions and instrumentalities, charged with the responsibilities of social development, of making headway steadily backwards and of making strategic retreats and illusory advances proclaiming victories all time.
For whom, then, do the constitution bells toll? When will then,“We the people of India” have social justice? What, then, is the secret plot that defeats the bruited plans of progress? The juristic diagnosis, with a heuristic bent, of this socio-economic pathology is revelatory of some half-hidden maladies afflicting our justice system, understood in its legislative, administrative and judicial sweep, and is suggestive of possible remedies at all these levels. The untold story of Indian administration of injustice is not my thesis but will remain to be told by social scientists sooner or later if the midnight mandate of 15 August 1947 is to materialize as the life process of Indian justice. I do not propose to limit my consideration to court-administered justice but to expand social justice to embrace the processes and performance of the executive and the legislature. This wider coverage is also related to the compulsions of the Constitution whose conscience speaks through Article 38.
Granville Austin explores the soul of the instrument of instructions contained in Part IV and writes:
“In the Directive Principals, however, one finds an even clearer statement of the social revolution. They aim at making the Indian masses free in the positive sense, free from the object physical conditions that had prevented them from fulfilling their best selves…. The essence of Directive Principals lies in Article 38.”
The Constitution was to foster the achievement of many goals, transcendent among them was that of social revolution. Through this revolution would be fulfilled the basic needs of the common man, and, it was hoped, this revolution would bring about fundamental changes in the structure of Indian society — a society with a long and glorious cultural traditions, but greatly in need, as believed by Constituent Assembly of a powerful infusion of energy and nationalism. The theme of social revolution runs throughout the proceedings and documents of the Assembly. Social justice in our Socialist Republic is a socio-economic revolution in the current miasmic milieu. And in contemporary India, the human conditions is so poignant that governments have been constrained to profess and promise revolutionary change, from the socialistic pattern, through garibi hatao(removal of poverty), to “total revolution”.
And this revolution is not something new, it comes out from the speech of Jawaharlal Nehru, in the Constituent Assembly, at the midnight, just before Independence. He said that long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of midnight hour, when the world sleeps, India will awake to life and freedom. The amplitude of the aforesaid revolution is brought out in his Prison Diary by Jai Prakash Narain. Total revolution is a combination of seven revolutions — social, economic, political, cultural, ideological or intellectual, educational and spiritual. This number may be increased or decreased. For instance, the cultural revolution in the Marxian context covers economic and political revolution and even more than that. This is how we can reduce the number to less than seven. And we can add to this number by breaking up each of the seven revolutions into different categories. Economic revolution may be split up into industrial, agricultural, technological revolution, etc. Similarly, intellectual revolution may be split up into two — scientific and philosophical.
“Total revolution” can be said to be‘total’ in the sense not to indicate a change of total values but to cover total people and their sufferings, to build a total society which is so much split up, and to mobilise total support of our people. The epitome of social justice is of revolutionary import, although dismissed by many as a vague idea or glittering phrase or a constitutional dope. P. Yudin, in his book Soviet Legal Philosophy, writes that law and social justice are but means to one end — the unlimited manifestation of the total human potential, rather, in the words of Karl Marx, the full and free development of every individual. Law and justice do not function as an autonomous system and cannot regard the deeper materialist and cultural roots are irrelevant. And at the same time, Geo-social and politico-cultural constraints always operate on the justice system.
It is likely that in any discussion of social justice, however academic, the focus will be turned on national planning and poverty, the dynamics of development and the fossil techniques of the Constitutional Triumvirate, the politics of corruption and white-collar criminals (political, professional and commercial), performance audit of social-welfare, legislative slow-motion and people’s cause, bureaucratic betrayal through non-implementation, justice in the book and the like. The spectrum of social justice spreads out beyond the jural canvas into the politico-economic and socio-cultural.
Law and Life are symbiotic and the realities of the later mound the processes of the former. At this stage, I will abbreviate my observations. Social Justice to the millions — to wipe every tear from every eye — will be subverted by soft justice to the millionaires. Dr Ambedkar’s warning to the Constituent Assembly makes us feel guilty:
By independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves.
The obvious inadequacies of Indian justice have received public attention and, occasionally, aroused popular consternation and, indeed, judicial fatalism. The colossal backlog of cases in courts is one such; the expensiveness of litigation, with a pyramid-style processual institution, is another. The time-consuming complexities of adjective law — diverting judicial attention from the justice of the case to procedural irrelevancies, are also notorious. Judicial action whittling down welfare projects is an accusation on which legal historians will pronounce. Anyway, for a choice of the great makers of modern Indian judges have offered no competition — although politicians have been included and excluded by turns depending on who pro tempore wields the sceptre!
On the executive side, those who care to know, know that human problems are drowned in heaps of files and delayed orders marked by callous correctness. Indifferent to the immediate solutions of human injustice or community crises is characteristic of fossil secretariat fastidiousness. What is more calamitous is that pharisaic formalism obscures a clearer, creative, curative view of the little Indian and his social maladies, which is his desideratum.
The parliamentary process — a British transplant — is subtly alienated from the people. Representatives, elected periodically on adult franchise, are expected to be sensitized and attuned to the crying needs of indigent communities and even individual misers. In a rule-of-law country, backup law for executive action is a requisite; and inquest into administrative injustice is also a parliamentary function. Therefore, benignant programmes, developmental schemes and social welfare projects require broad legislative sanctions and performance audit by committees of members. These aspects emphasise the pervasive importance of thoughtful legislation geared to social justice in its manifold aspects and constant vigilance about effective execution.
And yet, two things are well known about legislative blundering. Law is never made in time or at all where it is badly needed. And where it is made, it is so lacunosely drafted — unwittingly, let us assume — that while the small fish get caught, the big sharks escape through the meshes. That is what I call soft justice aptly put by Justice V.R. Krishna Iyer in a rather poetic manner:
“The law locks up both man and women
Who steals the goose from off the common,
But lets the greater felon loose
Who steals the common from the goose.”
And about drafting shortcomings leading to the legislative fiasco, another jingle relating to British Parliamentary drafting on which our system is closely modelled. I would again quote Justice V.R. Krishna Iyer, who, in a fitting comment said:
“I am the Parliamentary draftsman
I compose the country’s laws,
And of half the litigation
I am undoubtedly the cause.”
Follow-up of legislation at the level of implementation is “a consummation devoutly to be wished”. If these are the glaring systemic failures, there are hundred half-hidden self-defeating aspects of Indian justice involving all the three branches of government.
We, in India, since 1947, have had a dynamic, down-to-earth, people-oriented conceptualization of social justice and socialist expressions, with an egalitarian slant, anti-feudal, anti-exploitative bias and an urgent summons for action with hints of Future Shock versus Human Tomorrow. The tragic fact is that great words and sour deeds, the claws of the past and the caresses of the Present, the periodic electoral avalanches, the phrase-mongering parliamentary exercises and the logomachic justice processes, have hidden, through their cumulative ballyhoo, the near-bankrupt balance sheet of the nation in terms of distributive justice, basic needs of the largest and lowliest human segments and the distressing distance between the rags and the riches. The real answers to these questions will arise only if we lift the veil behind the veil, without fear or favour vis-à-vis the elite, the tycoon and the latifundist and with total commitment to that ubiquitous species found on Indian Earth whom Mahatma Gandhi symbolized when he desperately wrote in his book, Socialism of My Conception that, ‘Swaraj has no meaning for the millions, if they do not know how to employ their enforced idleness’.
I am tempted to think that we are substantially where we were when the Republic was born — not in the conventional GDP or Gross Domestic Product but in the tragic GNP or Growing National Poverty but on top of this the denial of social democracy. I would end this essay by what was said by Dr. Ambedkar himself, he warned us that we should not only be content with mere political democracy. I quote, as he said:
“We must make our political democracy a social democracy as well. 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 as principals of life. These principals of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from another is to defeat the very purpose of democracy.”
In the next part, I shall analyse how Social Justice, constitutionally accented but left undefined, is a relative concept taking in its wings the people, their traditions and aspirations, their turmoil and torments.
