Constitutional Law | Some Half-Hidden Aspects of Indian Social Justice — Part II
Last week, I had explored the dynamic connotation of Social Justice in the Indian Constitutional setting enumerating upon some of the unspeakable gospels that plague the life process of Indian Justice. Following up on the same, by way of this article, I shall attempt to locate its content and contours specifically in the Indian Society and thus would bring out its relativity in the process.
Social Justice, constitutionally accented but left undefined, is a relative concept taking in its wings the people, their traditions and aspirations, their turmoils and torments, their backwardness, blood, sweat and tears. In a different sense, the Madras High Court in Sridharan Motor Service v. Industrial Tribunal delved into this relativity and concepts of social justice have varied with age and clime. What would have appeared to be indubitable social justice to a Norman or Saxon in the days of William the Conqueror will not be recognized as such in England today. Courts and tribunals created by the law must guide themselves by the directions and principals embodied in the law. If the law declares that a line or course of conduct is illegal, they must give effect to that declaration. In countries with democratic forms of Government, public opinion and the law act and react with each other. Sometimes the law sets the pace and public opinion catches up with the law. In other cases, where the law lags behind, the public opinion the pressure of the opinion brings about a change in the law.
It behoves us, therefore, to specificate the content and contours of social justice in our context. Of course, legal relations have their roots, as Marx has stressed, in the material conditions of life. Broad equality also is a credal component of social justice, which has been stated by even by a total non-Marxist, like Matthew Arnold. A society of un-equals, according to him, “materializes our upper class, vulgarises our middle class and brutalizes our lower class”. Long ago, the Supreme Court in Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union said:
“Without embarking upon a discussion as to the exact connotation of the expression ‘social justice’, we may only observe that the concept of social justice does not emanate from the fanciful notions of any adjudicator but must be founded on a more solid foundation.”
Let us search for that solid foundation in the Indian ethos attested by the Constitution and the law, articulated by jurists and judges. I content myself with quoting Justice Dr P. B. Gajendragadkar, who strikes a balanced note with the restraints of judicial habit and the liberalism of Fabian.
What is social justice? To answer this, I will refer to the Welfare Plan evolved by the Beveridge Report and according to the Plan of Social Security put forward by the aforementioned report, democracy took upon itself the task of attacking five giant evils: Want, Disease, Ignorance, Squalor and Idleness. Basically, all these five giant evils thrive on the fundamental evil of poverty. Consequently, under the concept of a Welfare State, the primary function of the state of attacking the problem of poverty assumes considerable significance. Democracy realizes that this problem which concerns an overwhelmingly large number of its citizens cannot be successfully met unless it wisely uses its mighty weapon of law and attempts to restore balance to the economic structure and to remove the causes of economics tension from the body politic of the community. All the attempts made by democratic legislatures to meet the challenge of poverty constitute attempts to give to the citizens of the state economic justice. Equality of opportunity to all the citizens to develop their individual personalities and to participate in the pleasure and happiness of life is the goal of economic justice.
Social Justice as distinguished from economic justice has a special significance in the context of Indian society. As we all are aware, our social structure is based on castes and communities which create walls and barriers of exclusiveness and proceed on the basis of considerations of superiority and inferiority. The recent Sabarimala controversy and the demand for reservations by some communities in few states reminds us about the same complexity of society. This vice of social inequality assumes a particularly reprehensible form in relation to the backward classes and communities which are treated as untouchable; and so, the problem of social justice is as urgent and important in India as is the problem of economic justice stressed by one of the most influential political philosophers of the twentieth century John Rawls. I am using the term social justice in a comprehensive sense so as to include both economic justice and social justice. The concept of social justice thus takes within its sweep the objective of removing all inequalities and affording equal opportunities to all citizens in social affairs as well as economic activities.
Justice Gajendragadkar, in his Kumaramangalam Memorial Lecture, has dwelt further on this theme. The famous libertarian John Stuart Mill adopted a somewhat similar line of approach when he famously quipped that the only freedom which deserves the name is that of pursuing our own good in our own ways, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily or mental and spiritual. Mankind is the greater gainer by suffering each other to live as seems good to the rest. Mill did not approve of the idea of the State undertaking the task of educating the citizens because he thought that, it is a mere contrivance for moulding people to be exactly like one another; and as the mould in which it casts them is that which pleases the predominant power in the Government, whether this be a monarch, a priesthood, an aristocracy, or the majority of the existing generation, in proposition as it is efficient and successful, it establishes a despotism over the mind, leading by natural tendency to one over the body.
The sequitur, for our social scheme, is that Indian democracy is not static, passive or negative. It is dynamic and positive and is determined to create a new social order based on equality and justice through the instrumentality of the law. Jurisprudence, in such a challenging situation, cannot walk alone but must collaborate with progressive schools of the social sciences and remake, not merely meddle, reorient, not merely readjust. In the words of Dean Pound, while jurists have been at these tasks, a new social order has been building which makes new demands and presses upon the legal order with a multitude of unsatisfied desires. Once more we must build rather than merely improve; we must create rather than merely order and systematize and logically reconcile details. Here we hover around the frontiers of social justice.
Social justice, as I am trying to indicate, is a relative concept, with changing context dependent on time and circumstances, on people’s culture and aspirations. We concern ourselves with an ancient Asian member of the Third World with its inherited injustices, cultural kinks and enormous economic, social and demographic problems. So our perceptions must be conditioned by the past, present and future and the traditions and aspirations of the broad community in working its way towards liberation, all of which have, in good measures, codified our Constitution. But, even within the Constitution, which is the sanction for the correlation of the old way of life and the direction for the new social order, there is spacious scope for interpretation guided by social perspective.
The Indian Constitution, says Granville Austin, is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement. Yet despite the permeation of the entire Constitution by the aim of national renascence, the core of the commitment to social revolution lies in Part III and IV, in the Fundamental Rights and in the Directive Principles of State Policy. These are the consciences of the Constitution. The Fundamental Rights and the Directive Principles had their roots deep in the struggle for independence. And they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India. The rights and principles thus connect India’s future, present and past, adding greatly to the significance of their inclusion in the Constitution, and giving strength to the pursuit of the social revolution in India.
Dr. Ambedkar regarded Part IV as a socialist chapter and contended that the intention of the nation was not to pay lip service to these principles but they were to be made the basis of all legislative and executive action that they might be taking hereafter in the governance of the country. He vehemently objected to making the Constitution any other than a mere political contrivance. He cited the Directive Principles as giving us the substance of a Socialist State. He said:
“If these Directive Principles are not socialistic in their direction, and in their content, I fail to understand what more socialism can be.”
His words were predictive when he spoke:
“What value these Directive Principles possess, will be realised better when the forces of right contrive to capture power.”
Social Justice is the balancing wheel between freedom, politics and economic, and indeed, makes for the survival for democracy. Harold Laski said that the survival of political democracy today is, all over the world, definitely impossible unless it can conquer the central citadel of economic power. There cannot, in a word, be democracy unless there is socialism.
The great pledge to project social justice as a fact of national life and underwrite its triple components of equality, dignity and the basic minima of human needs to every Indian was made at the historic hour before midnight when India awoke to freedom. But the midnight continues and the masses, caught in the darkness ask in agony, “where is the dawn”? This, notwithstanding Gandhian moral weightlifting by national leaders — Marxian revolutionism of the infighting Left, the multi-point programmes and alluring manifestos of all parties, the Five Year Plans, mini-plans and the rolling plans manufactured by Yojana Bhavan think tanks.
If great jurists and judicial statesmen live in the slumberous past and feed on precedent-made lore, the drift to doomsday may be their guilt. If we want not socialism for the rich — of which some of our co-operative housing colonies and co-operative farms are symbolic but true — participatory socialism of the marginalized people, creative jurisprudence of remedies, progressive laws regulating production and distribution, village-based delivery system of justice and a host of juridicare and legal literacy programmes become the heavy responsibility of lawyers, lawmakers and opinion makers. Our tryst for destiny is redeemed only by a legal strategy for salvaging the starvelings of village India and the squalid denizens of city slums.
Here I conclude the preliminary objection on swaraj and social justice now regarded by many as a mirage. I would now quote Justice V.R. Krishna Iyer, who says,
“Social Justice, the ideological signature of our Constitution, is Vasudhaiva Kutumbakam(the world is one family) which is the fingerprint of our cultural heritage. This is what I conceptualize as Human Tomorrow.”
Our plans for prosperity will be built on the quicksands of unconscionable industrialism, our future mortgaged to shortage economy, intractable inflation and looming injustice to large numbers below noise-voice line, unless by multidisciplinary efforts of law, technology and social sciences geared to the great secular-spiritual goal of democracy and socialism, is given propitious material conditions. If the weak and the meek are to share the resources of our nation, the Rule of Law, in its dynamics, distributive, democratic militancy, must occupy the commanding heights of the justice system and become an activist instrument in the hands of social, economic and political proletariat in its struggle against the three-dimensional proprietariat to establish a better human order and juster legal culture.
