LAW AND JUSTICE IN THE GLOBALIZING WORLD

“Justice is the highest

virtue of society”-PLATO,
discuss in the light of
Gandhi’s theory of social
justice

2016

PRESENTED TO: DR GULSHAN KUMAR COMPILED BY:

DR AMITA VERMA SIYA MINOCHA

DR KARAN JWANDA L.L.M COURSE

1ST SEMESTER

ROLL NO: 1640

UNIVERSITY INSTITUTE OF LEGAL STUDIES

 ACKNOWLEDGMENT

I, SIYA MINOCHA, feel myself highly elated, as it gives me tremendous pleasure to come out
with work on this topic.

First and foremost, I take this opportunity to thank my Teachers, Faculty, Corporate Law,
UILS, for allotting me such topic to work on. She has been very kind in providing inputs for this
work, by way of lectures and suggestions.

I would also like to thank my dear colleagues and friends in the University, who have helped me
with ideas about this work. Last, but not the least I thank the University Administration for
equipping the University with such good library and I.T. facilities, without which, no doubt this
work would not have taken this shape in correct time

2
 TABLE OF CONTENTS

I. INTRODUCTION ..................................................................................................................................... 4

II. GANDHI’S VIEWS ON SOCIAL JUSTICE................................................................................................... 6

III. SOCIAL JUSTICE ............................................................................................................................... 15

IV. DIRECTIVE PRINCIPLES OF STATE UNDER 35 TO51 PROVIDED SOCIAL ECONOMIC AND POLITICAL

JUSTICE ........................................................................................................................................................ 23

V. SOCIAL JUSTICE AND FUNDAMENTAL DUTIES .................................................................................... 29

VI. CONCLUSION ................................................................................................................................... 31

VII. REFRENCES ...................................................................................................................................... 32

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 I. INTRODUCTION

Justice as a virtue:
The word justice comes from its Latin root ‘Jus’ meaning ‘right’. It has its literal meaning as
‘binding’ or fitting or tying together of things and qualities harmoniously in human life. Justice is
not merely right determination and adjudication of disputes and enforcement of Law, but is so
comprehensive in its meaning and import that it takes within its ambit the whole of political,
social, juristic and moral idealism. It is so, because Justice has reference to the whole of human
existence which we want to realize by our thought, will and action. "Justice is the foundation of
social morality, and is concerned with the general ordering of society.”1
Plato Justice is realization of ‘Good’ which can be achieved in society by doing one’s
own duty according to one’s station in life otherwise; Justice achieves ‘Good’ by retribution. In
Plato’s theory to perform the nature-ordained duty is justice. Each class and each individual will
do their duty and none will interfere with other’s activities. In The Republic, Plato has made the
following observation….. “in the case of citizens generally each individual should be put to the
use for which nature intended him, one to one work, and then every man would do his own
business and be one and not many; and the whole city would be one and not many”. He believed
that the "principle of division of labor, that each man and more specially each class, should do
that work, for which he is fitted and no other...(is)... justice." 2
Plato wants to say that nature has made some men physically strong and other men
intelligent and wise. It has also made some men brave. Naturally, one man will be unfit for
another man’s job. If we accept this natural phenomenon it is expected that man will cooperate
with nature in all respects. This constitutes the central idea of justice. When this is achieved,
Plato says, justice in the society will start to reside.

1
D.D. Rapheal; Problems of Political Philosophy; London Macmillan 1979, p.105.
2
A.D. Lindsay; Introduction; The Republic of Plato, p. XXXV.

4
Social Justice as incidental from Justice:
Social justice is defined as “... promoting a just society by challenging injustice and valuing
diversity.” It exists when “all people share a common humanity and therefore have a right to
equitable treatment, support for their human rights, and a fair allocation of community
resources.” In conditions of social justice, people are “not be discriminated against, nor their
welfare and well-being constrained or prejudiced on the basis of gender, sexuality, religion,
political affiliations, age, race, belief, disability, location, social class, socioeconomic
circumstances, or other characteristic of background or group membership.” 3 The concept of
Social justice is highly discussed by almost all the leading and eminent personalities in various
academic disciplines.4 The reforms made by leading scholars and statesmen are noteworthy and
none the less much remains to be done.
While referring to the Indian society which is governed by the principle of social justice
as enshrined in the Constitution of India as prescribed by Gandhian philosophy. Gandhi’s
ideology such as Truth, Satyagrah and Ahimsa almost has touched all the nations in the modern
world for furtherance of peaceful existence. Social justice is a multidimensional concept. Which
is looking in Gandhi's various thought; such as in the concept of truth and non-violence, concept
of Ramrajya, Swaraj, Sarvodaya, Satyagraha and Trusteeship theory.5 The philosophical notions
of these theories of Gandhi provide the premise of the just social, economic and political order.
In these contexts we can be seen Gandhi's conception of social justice. Gandhi's idea for
decentralization of power and authority is one safeguard for individual freedom.

3
https://gjs.appstate.edu/social-justice-and-human-rights/what-social-justice
Viewed on 27th October, 2016 time -
4
Dias, Jurisprudence 5th Edition, Butterworth & Co. (1985) pp. 481-482.
5
Krishna Iyer, Justice and Beyond, Deep and Deep Publication, New Delhi (1982) p. 63.

5
 II. GANDHI’S VIEWS ON SOCIAL JUSTICE

Introduction:
The concept of Social justice is highly discussed by almost all the leading and eminent
personalities in various academic disciplines. The reforms made by leading scholars and
statesmen are noteworthy and none the less much remains to be done. For India’s future great
personalities like Abraham Lincoln, Martin Luther King, Mandela tried their best to at least
minimize the injustice that had been unleashed towards the downtrodden section. In this study
we may not forget the invaluable role played by Mahatma Gandhiji in South Africa. Gandhi’s
ideology such as Truth, Satyagrah and Ahimsa almost has touched all the nations in the modern
world for furtherance of peaceful existence.

Each and every person or we should say every citizen of the global family, ought to be
committed to peace in today's human predicament , caused by conflicts due to Ideological
Extremism, Religious Fundamentalism, Misguided Nationalism, Economic Injustice and
Inequality. Violation of Human Rights, Suppression of Freedoms, Militarism of Power Politics,
Population Explosion, Racial and Ethnic Discrimination, Egoism and uncontrolled human
instincts etc.

Gandhi recognized .the potentiality of these various kinds of conflict as occasions to contemplate
over the confirmed problems and also as opportunity to search peaceful means to resolve them,
because of his positive attitude .He knew very well that the process of conflict resolution
involved painstaking task of restructuring the present world by liberating human mind from
dogmatism of various kinds such as economic and political barbarism, religious bigotry etc. To
achieve simultaneously the negative aim of conflict - resolution and the positive aim of
establishing peace, Gandhi propounded his philosophy of peace. The need of ours is to proclaim
again and again the significance of Gandhian pacifism to solve crucial problems of conflicts and
violence.

6
To prevent structural violence, Gandhi proposed the theories with ideals of Satyagraha,
Sarvodaya, Swaraj , Swadeshi, Buniyadi Talim, Decentralization of Power, and wealth,
Trusteeship, social Harmony & communal unity, Economic equality, Sarva Dharma Sambhava,
Democracy of Enlightened Majority etc.
Gandhi's approach had always been Holistic as human life is a synthetic whole, which can not be
divided into watertight compartments of social , religious, political life etc. Following diagram
exhibits the salient features of Gandhian pacifism. Gandhi's Philosophy of Peace:
1 .Moral Crisis
Solutions: Non-violence Ashram, Anasakta Karma

2.Religious Fundamentalism
Solutions: Sarva Dharma Sambhava, Tolerance, Respect towards all Religions

3.Educational Reform
Solutions: Nai-Talim Adult Education

4.Social Disturbance
Solutions: Removal of Untouchability, Communal Unity, Sarvodaya, Upliftment of Women,
Prohibition, Service of Backward Classes, Village Sanitation

5. Political Conflicts
Solutions: Swaraj, Decentralisation of Power. Democracy of Enlightened Majority

6.Economic Problem
Solutions: Trusteeship, Swadeshi, Bread Labour, Khadi and Village Industries, Decentralisation
of Wealth Eleven Vows or Ekadasha Vrata also recommends the solutions mentioned above and
thus presents a constructive programme proposed by Gandhiji. Once again it underlines (i)
Removal of untouchability (ii) Prohibition, (iii) Upliftment of women (iv) Communal Unity (v)
Service of backward class (vi) Village Sanitation (vii) National Language (viii) Basic education
(ix) Adult education (x) Village Industries. Gandhiji assert that besides individual endeavour

7
corporate actions are also needed . So he established" Ashram", where people could be incited in
vows.

The most fundamental principle of his philosophy of peace is "Ahimsa" or non-violence which is
law of love, life and creation as opposed to violence or Himsa, the cause of hatred, death and
destruction. According to Gandhi the universal human value of Ahimsa ought to be cultivated
not merely at personal level, but at social, national and international level too if we wish to avoid
personal, social , national and international conflicts. It is a very powerful means to avoid
conflict, since it springs from inner realisation of the equality of all. human beings . Negatively it
is absence of mental intention of injuring, harming, disturbing and. agonising opponent, and
positively it is good will towards all human beings.

Nonviolence at interpersonal and International levels can be defined as Altruistic approach. As a

peaceful technique to resist injustice, it includes a concrete programme and leads to self-
suffering and sacrifice. For Gandhi "Fasting unto death" is the last step to oppose injustice.
Gandhi's approach is ethical, as he believes, that moral degeneration is the root cause of all evils
including conflicts. So he recommends acquisition of moral value such as truthfulness, non-
violence or love. self-control, forgiveness, non-enmity or friendliness, compassion, mercy etc. In
fact values are the best equipments discovered by human being to escape various types of
conflict. Researches also show that root of all problems invariably lies in the infringement of
values- moral, religious, spiritual, economic and political -and moral principles· Undoubtedly
conflicts are nothing but the illustration of the violation of moral laws, non performance of duties
, negligence of human values, enjoyment of freedom without caring for responsibility etc. Hence
Gandhi appreciates moral solution, which is inexpensive, and single person can initiate and
undertake the task of conflict resolution by attracting world wide attention· Gandhi, a great
political thinker, therefore, recommends that politics should be a branch of ethics· Moral
principles must be adhered to by politicians, ideologues, social activists as well as ordinary
citizen of the world as there is no dividing line between private and public life.
Assimilation of values in one's character and their expression in conduct is required to avoid
conflict and this in turn is possible through awakening of"Conscience" at personal, social,
national and global levels. Public awareness of those values which are conducive to peace

8
building must be evoked through exhibition, education, public lectures, dialogues and-mass
communication- T.V., Radio, Newspapers etc.

Gandhi proposed and adopted "Satyagraha" as an moral equivalent to war and conflict. As we all
know the successful conduct of war involves two things. On the one hand, suppression of the
virtues of kindness, friendliness, forgiveness and consideration for the sufferings of fellow
human beings , and on the other, encouragement of the feelings of unqualified hatred , anger and
hostility towards so called enemies. Thus war leads to total violation of the liberal democratic
principles of respect for persons and dignity of the individual. On the contrary, satyagrahi while
resisting injustice, shows respect for his opponent by making moral appeals to him and expecting
him to be responsive. Satyagrahi aims at conversion of the opponent's heart by making him
aware of his ill will or inhuman behaviour through self- suffering". Satyagraha aims at winning
over opponent by love and gentle persuading and by arousing in him a sense of justice rather
than forcing him to surrender out of fear.

The method of Satyagraha is purely moral and humanistic as it involves faith in the inherent
goodness and good sense of the opponent coupled with goodwill towards him and readiness to
come to an understanding and compromise. In fact Satyagraha aims at settlement of issue or
issues with the opponent without causing him even psychological injury but it implies soul -
force, courage and determination

A well-conducted Campaign of Satyagraha absolutely untouched by violence in word and deed,

made the hypocritical opponent suffer from split personality as his own moral consciousness
getting alarmed by the exposure of the immorality of his action.

Humanism as the philosophy of Globalism or Global philosophy implies non-discrimination with

regard to race, sex language, region, religion, political ideology, social and economic status,
international status of the country etc. ,since the basic structure and nature of human beings all
over' the world is same .We must rationalise our ways of thinking and to think of the world in

9
terms of maps and markets, we should think of it in terms of men, women and children i.e. in
terms of mankind.

To prevent conflicts caused by religious bigotry, Gandhi suggested "Sarva Dharma Sambhav".
According to him all religions are true and man can not live without religion so he recommends
attitude of respect and tolerance towards all religions.

Since the scientific and technological researches aimed at material comforts are ruining human
sensitivity and sentiments i. e. human feelings and relations, so scientists and technocrats must
be reminded of their moral obligation to choose peaceful means and so to perform their first and
prior duty towards humanity .They should not invent biological, chemical , nuclear, laser and
other kinds of sophisticated weapons, which verifies the assumption that science and technology
one frequently used as instruments of exploitation, domination and destruction rather than as
means in the service of mankind and peace.
Ideological extremism is also a cause of violent confrontation, as it makes the ideologues
incapable of dialogue and negotiation while confrontational determination to counter force by
force must be replaced by a policy of dialogues and negotiations .Democracy facilitates such
policy, so Gandhi approved the democratic way of governance and life. We can say that Gandhi
has been the champion not only of political democracy but also of economic and spiritual
democracy as he committed to' the vedantic view of Unity-in-multiplicity and was a supporter of
economic equality. Mutual trust and bilateral negotiations, preparedness to discuss the problem
collectively with open mindedness, tendency to examine and change (if necessary) our own
belief i. e. flexibility is also required to escape conflict.

Social discrimination:
In Indian society the caste systems untouchability is fairly old which generated social hatred and
discriminatory feelings of high and low caste and as a result of this the latter category suffered
for centuries in the hands of the former. Time and again, ceaseless efforts were made by social
reformers to alleviate the status of down- trodden and bring them to a level by which they could
breathe and subsist with some confidence in the society. This was, however, a most complex
problem, the complete or satisfactory solution of which could not be evolved in spite of efforts

10
by prominent personalities including social reformers, educationists and political leaders of our
society. For example, Buddha, Mahavira, Kabir, Nanak, Dayanand and others played their social
and religious role at some time or the other to reform the Indian society besides; numerous socio-
religious reform movements had deep linkage with the cause of the untouchables who were
labelled with a serious stigma on the fair name of Hinduism. It should be noted that almost all
reform movements who tried to liberate the Indian society from the caste systems have resulted
in to castes, like Bhuddism, Jainism, Sikh, Arya samaj, Bramho samaj, etc.
The idea of social discrimination dawned on Gandhi in South Africa where he engaged himself
against the discriminatory attitude of the South African government against Indians.
Gandhi claimed that he was a Sanitanist. For him, Vedas were indefinable as God and Hinduism.
The reverent reading greatly strengthened his faith in the Gita.

The economic and educational uplift is no doubt, an essential part of true repentance by caste
Hindus. It is a test of the sincerity of their professionals. But the uplift will not be complete
without the throwing open of temples. The throwing open of temples will be an admission of the
religious equality of Harijans. It will be the surest sign of their ceasing to be the outcastes of
Hinduism, which they are today.

And when temples are thrown open to Harijans, schools, wells and many similar facilities will be
automatically open to Harijans. It is easy enough to realize that untouchability may subsist side
by side with economic uplift. The declaration of the opening of temples will cover him with the
rest. It will be like the abolition of slavery. It will be a vast and glorious step in the much-needed
and overdue purification of Hinduism.
Temple-entry permission, to be of use, has naturally to be a voluntary act on the part of Hindus.
It has to be, therefore, a genuine change of heart in the caste Hindus. Legislation is nevertheless
necessary because of the fact that in law the entry of Harijans into caste Hindu temples is said to
be prohibited. Legislation will constitute the seal of approval of the vast mass of Hindus. The
conversion of untouchable to Islam or Christianity was criticized by Gandhi. He favored
religious bonds as it was a matter of the heart. Others should not take advantage of the
helplessness of untouchables. Conversion’s of castes was dominant feature under the British rule,
and was condemned by him.

11
On Untouchability
“He indeed was much pained to see the appalling plight of untouchables in various regions of the
country. Its eradication greatly agitated his mind and he devised ways and means, from time to
time, through his speeches and writings.” He wrote in Navajivan, ‘By passing resolutions and
talking about their problem we have raised hopes in them. It was absolutely necessary to do this.

Gandhi and Vykom Satyagraha:

Undoubtedly Gandhi showed much concern about the Vykom satyagraha undertaken in 1924-25
in order to obtain permission for ‘untouchables’ and ‘unapproachable’ to use certain roads round
about the temple at Vykom in Travancore. * In Travancore the satyagrahis did not attack a whole
system, but they fought sacerdotal prejudice. The Travancore State came in by a side door as it
were. Indeed the Vykom satyagrha had attracted a wide public attention.
He drew a sharp distinction between untouchability and Varna or caste. The caste system, in his
opinion, had a scientific basis. Reason does not revolt against it. “Caste creates a social and
moral restraint. The doctrine of caste cannot be extended. I would restrict it to four divisions.
Any multiplication would be an evil. I would reform the castes and rid them of undoubted
abuses, but I can find no reason for their abolition. For me there is no question of superiority or
inferiority. A Brahmin who regards himself as superior being born to look down upon the other
castes is not a Brahmin. If he is first he is so by right of service.”

Indeed, there was no vice that was special to the untouchables, not even dirt and insanitation.
During the second phase of the Civil Disobedience Movement, Gandhi had been kept in jail
under the usual rules. But during his fast, these had been relaxed and he had Kasturba to attend
upon him and many visitors. After his contact with the authorities through correspondence, he
was permitted from 7th November to conduct the

Harijan movement from within the jail, to receive visitors freely and to write. In May 1933
sixteen months after his arrest, he decided again to fast for twenty-one days. This was his only
fast of any length since his experimental fasts in South Africa.

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Thus the steps for the upliftment of Harijans taken by Gandhi were unique in our history. Along
with numerous other issues- political, social, economic, cultural and other he ardently identified
himself with numerous causes which had deep linkage with the daily life of a down-trodden
member of our society. He always wished to give the Harijan a place of honour and respect in
our society which was denied to them since centuries. In this task what he preached, he
professed. He spoke much in their favour by undertaking strenuous tours of all the regions of
India. He castigated caste-Hindus and criticized their behavior towards the untouchables. By
doing so, he demanded their financial and social cooperation for the upliftment of this neglected
community. At Mahatma' persuasion, numerous affluent persons came forward and funded his
schemes of reform. The money thus raised was spent on their educational, moral, social,
economic and religious development. Undoubtedly much progress was visible in this regard with
the passage of time. The Hindu orthodoxy in many areas had to bow down before Mahatma's
humanitarian gestures.

Gandhi used to spend time with the Harijans by living himself with them. This kind of personal
identification of the Mahatma made the Harijans realize their sense of importance in our society.
He taught them the sense of cleanliness and advised them to raise their economic and social
standards by hard work and honest means. He raised their colonies and advised the workers to
devise schemes of their upliftment.

After incessant work for more than three decades, it was realized that much headway was made
in this regard. They were given numerous concessions in the educational institutions,
reservations in government departments, ministerial positions, reserved seats in the provincial
legislatures and Lok Sabha. By doing so, the social status of a sizeable population in this
community has been raised. Thus the present chapter gives a clear picture about Gandhian
reforms and ideas related to the upliftment of the weaker sections. The charisma of Gandhi made
an invaluable impression among all the Indians invariable of caste and community. By sticking
on with “Harijans” and their welfare Gandhi turned the people of Indian towards the movement
of social justice. In consequent of the aforementioned activities, a very good amount of the
weaker category got empowered and it is because our father of Nation. In the succeeding chapter

13
this book discusses about E.V. Ramasamy whose opposition to the self-centered approach and
dominative attitude of Brahmins are elaborated.

14
 III. SOCIAL JUSTICE

1. Introduction –
In Indian society the caste systems untouchability is fairly old which generated social hatred and
discriminatory feelings of high and low caste and as a result of this the latter category suffered
for centuries in the hands of the former. During British regime, the government had introduced
reservations in favour of the lower caste as well as tribals. These policies created new
administrative categories which tended to refashion the old notions of untouchables. Hence the
sharing out of the ‘backward’ between ‘depressed classes’ (untouchables and tribals) and ‘caste
other than depressed classes’ that was decided in 1925.6 For depressed classes seats in local and
national assemblies were reserved from 1919 onwards. However, after Government of India Act,
1935, the untouchables were designated as Scheduled Castes and the denomination spread in the
providence of British India. After independence, this group was officially recognized by
constituent assembly, whereas the rest of the former depressed classes group was reclassified in
to a new category, the other backward classes. Both such groups were supposed to benefit from
programme of positive discrimination under the scheme of Indian Constitution.7

2. Social justice and Constitution of India –

The words, “Socialist” and “Secular” have been inserted in the preamble which reflects the idea
social welfare state. 8 The term ‘justice’ in the Preamble embraces three distinct formssocial,
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

6
P. Radhakrishnan, Backward Classes in Tamil Nadu: 1872- 1988, Economic and Political Weekly, 10 March, 1990
pp. 509-517.
7
Christophe Jaffrelot, Containing the Lower Castes: The Constitution Assembly and the Reservation Policy, p. 249-
250, in Supra n. 9.
8
(Equality before the Law) states that: The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India; Article 15(1) (Prohibition of discrimination on grounds of
religion, race, caste, sex and place of birth) states that: The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them; Article 16 (1) (Prohibition of discrimination
on grounds of religion, race, caste, sex and place of birth) states that: There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under the State; Article 17 (abolition of
titles) states that: “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any
disability arising out of “Untouchability”; Article 18 (1) states that: No title, not being a military or academic
distinction, shall be conferred by the State.

15
based on caste, colour, race, religion, sex and so on. It means absence of privileges being
extended to any particular section of the society, and improvement in the conditions of backward
classes and women. Economic justice denotes on the non- discrimination between people on the
basis of economic factors. It involves the elimination of glaring in equalities 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
and equal participation in the governance of the society. The Constitution has more than two
dozen articles providing for compensatory treatment for disadvantaged citizens or for protecting
them against discrimination. All these provisions and its subsequent amendments are intended to
ensure the economic, social and political justice to disadvantaged citizens.9

3. Social Justice and Fundamental Rights –

Article 15, 15(4), 16 (4) and 29 (2) as part of fundamental rights offer two folds advantages to
SCs/STs and OBCs. Such provisions not only bans discrimination in government employment
but permits the state to make any provision for the reservation in such employment. The
Constitution provides reservation in many areas as education, employment, land allotment and
housing etc. Article 330 and 332 of Indian Constitution provides reservation in political matters
to margined sections of the society such as SC/ST in both houses of parliament. Such provisions
reflect the idea of the distributive form of justice.10
In Keshavanand Bharti v. State of Kerala11 The fundamental Rights and directive principles are
supplement each other and aim at the same goal of about a social revolution and the
establishment of a welfare state. The fundamental rights of our constitution are social justice. It
is mentioned in the preamble itself Justice: Social, Political, and Economic. It the ideas of social
justice were not to remain on paper, how do we give them concrete shape? How do citizens
realize that it is through governance they ought to get social Justice? The constitution of England
is written and the supremacy of parliament is its dominant characteristic of social justice “Rule
of Law" explains that an individual in England has the right and freedom to take whatever action
he like, so long as, he does not violate any rule of the ordinary law of the land. The Americans

9
Gopal Guru, Constitutional Justice: Positional and Cultural, p. 236 in Rajeev Bhargava (ed.) Politics and Ethics of
the Indian Constitution, New Delhi: Oxford University Press, 2013.
10
Gopal Guru, Constitutional Justice: Positional and Cultural, p. 236 in Rajeev Bhargava (ed.) Politics and Ethics of
the Indian Constitution, New Delhi: Oxford University Press, 2013.
11
AIR 1973 SCC 225.

16
Constitution framed in 1787 and brought in to force in 1789, did not contain any fundamental
rights for Americans. It was met with serious condemnation. Consequently, the first ten
amendments were enacted in 1791, incorporating the fundamental rights. These amendments
have been described as the American "Bill of Rights". The Rights are binding on the Executive
as well as the Legislature.12
The Fundamental Rights, which are secured by the Constitution of India, are grouped under the
following heads:-
 Right to Equality (Articles 14 to 18)
 Right to Freedom (Articles 19 to 22)
 Right to Education (Article 21-A)
 Right against Exploitation (Articles 23 and 24)
 Right to Freedom of Religion (Articles 25 to 28)
 Cultural and Educational Rights of minorities (Articles 29 and 30)
 Right to Constitutional Remedies (Article 32)13

4. Fundamental Rights are Available against the State:

According to the philosophy behind Fundamental Rights, they are available only against the
State, for they are limitations upon the powers of the Government, Legislative as well as
Executive. It is against the might of the State that an individual needs constitutional protection
Conceptually, the fundamental rights are available only against the State, However, there are
provisions in part III of the Constitution, which impose limitations upon the action of private
individuals as well, for example, Articles 15(2), 17, 18(2), 23(1), and 24. As regards these
provisions, the Supreme Court in People's Union for Democratic Rights v. Union of India14 ruled
that it was the constitutional obligation of the State of takes necessary steps for the purposes of
interdicting such violation and ensuring observance of the fundamental rights by the private
individual who was transgressing the same.15
The first Fundamental Right secured to the people of India is the "Rights to Equality". It is
contained in Articles 14 to 18. These provisions are discussed under the following heads-

12
Dicey. AV "Introduction to Law of Constitution 1991 P. 1988.
13
Javed v. State of Haryana, AIR 2003 SC 3057.
14
AIR 1982 SC 1473.
15
Peoples Union for Democratic Rights v. Union of India AIR 1982 SC 1473.

17
  Equality Before Law or Equal Protection of Laws (Article 14)
 Prohibition of Discrimination Against Citizens (Articles 15)
 Equality of Opportunity in Public Employment (Article 16)
 Abolition of "Unsociability" (Article 17)
 Abolition of Titles (Article 18)

A. The concept of equality has been held basic to the rule of law:
The majority of the Supreme Court has held that the right to equality conferred by Article 14 is a
Basic Structure of the Constitution and an essential feature of democracy or rule of law. Article
14 uses two expressions namely-
Equality before Law - The phrase "equality before law" is English in origin. It is a familiar
feature of what Dicey called the "Rule of Law"."Rule of Law" means that no man is above the
law and that every person whatever be his rank or condition, is subjected to the ordinary law of
the land is amendable to the jurisdiction of the ordinary tribunals.
Equal protection of laws - the phrase "equal protection of laws" is based on Section 1 of the
Fourteenth Amendment of the Constitution of the United States of America adopted on July 28,
1868, which runs as: "nor shall any State-deny to any person within its jurisdiction the equal
protection of laws". This phrase is interpreted to mean "subjection of equal laws applying to all
in the same circumstances". It means that all persons have the right to equal treatment in similar
circumstances, both in the privileges conferred and in the liabilities imposed by laws. It requires
that equal laws should be applied to all in the same situation and that there should be no
discrimination between one person and another.

Article 14 Strikes at Arbitrariness - Dynamic Approach to save social justice:

The Supreme Court in E.P. Royappa v. State of Tamil Nadu 16 251 has given a dynamic
connotation to the equalizing principle. The Court declared this equalizing principle contained in
Article 14 as a "founding faith', a way of life" must not be subjected to "a narrow pedantic or
lexicographic approach. Equality is a dynamic concept with many aspects and dimensions and it
cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a
positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness

16
AIR 1974 SC 555.

18
are sworn enemies; one belong to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarchy. In Maneka Gandhi v. Union of India17, the Supreme Court
reiterated the majority view in E.P. Royappa v. State of Tamil Nadu and emphasizing on the
content and reach of the great equalizing principle enunciated in Article 14, stated. Article 14
Strikes at arbitrariness in State action and ensures fairness and equal of treatment.
B. No Discrimination against Citizens :
Article 15(1): Clause (1) of Article 15 provides: "The State shall not discriminate against any
citizen on ground only of religion, race, caste, sex, and place of birth or any of them".
Discrimination, in the context of Article 15 also means classification among persons or things
and also reservations for some of the members of a group or a class. If any such classification or
reservation is based on any of the grounds mentioned in Article 15(1), i.e., religion, race, caste,
sex or place of birth, it would be violative of Article 15(1).18 In Indira Sawhney v. Union of
India19, the Supreme Court has held that classification of Backward Classes into "Backward" and
"More Backward" not only permissible but essential. The Court explained that the object of the
special provision contained in the constitution was not to uplift a few individuals and families in
the Backward Classes, but to ensure the advancement of the Backward Classes as a whole.
No Discrimination as to Use or Access to Public Article 15(2): Clause (2) of Article 15
provides : "No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any
them, be subjected to any disability, liability, restriction or condition with regard to- (a) Access
to shops, public restaurants, hotels and places of public entertainments; or (b) The use of wells,
tanks, bathing Ghats, roads and places of public resort maintained wholly or partly out of State
funds or decided to the use of general public". While the prohibition under Clause (1) is against
State only Clause (2) prohibits not only the State but also private individuals from violating the
direction contained therein.
Special Provision for Women and Children Article 15(3): Clause (3) of Article 15 provides:
Nothing in this article shall prevent the State from making any special provision for women and
children". This Clause is an exception to the rule against discrimination embodied in Clause (1)
as well as Clause (2). While, both these Clauses prohibit discrimination on the ground of sex,

17
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
18
General Manager v. Rangchari AIR 1962 SC 36.
19
AIR 199 SC 477.

19
Clause (3) enables the State to confer special rights upon women, since women are a well
defined class.20
Special Provision for Backward Classes Article 15(4): Clause (4) of Article 15 contains
another exception to Clauses (1) and (2). It provides: "Nothing in this article or in clause (2) of
Article 29 shall prevent the State from making any special provision for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes". This Clause was added by the Constitution (First Amendment) Act, 1951, as
an equal to the decision of the Supreme Court258 Scope of Clause (4) of Article 15 and social
justice: Clause (4) of Article 15 enables the State to make special provisions. "Special Provision
for advancement" is a wide expression and should not be construed in a restricted sense as
meaning only social and educational advancement. The expression may include many more
things besides mere reservation of seats in colleges.21
Special Provisions Relating to Admission to Educational Institutions for SCs S.Ts and OBC
in Article 15(5): The Constitution (Ninety-third Amendment) Act, 2005 has inserted a new
Clause (5) law, special provisions, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes, in so far as,
such special provisions relate to their admission to educational institutions, including private
educational institutions, whether aided or unaided by the State, other than the minority
educational institutions, referred to in Clause (1) of Article 30.22
Equality of Opportunity-State may lay down Qualifications or Conditions Article 16 (1):
.Educational Qualifications As basis of Classification: Educational qualifications can justifiably
be made a basis of classification for purposes of promotion to higher post.
No Discrimination on the ground of region, Race, Caste,Sex,Desent ,Place of Birth,
Residence or any of them etc Article 16(2): Where discrimination is based, partly on the
grounds contained in Article 16(2) and partly on other consideration, there will be no
contravention of this Clause. Also, where discrimination is based on grounds other than those
mentioned in Clause (2), it would not attract this Clause, but the case will have to be weighed
and judged in the light of the general principle laid down in Clause (1) of Article 16.23

20
State of M.P. v. G.D. Terthani, AIR 2003 SC 2952.
21
K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495.
22
The Constitutional 93rd Amendment Act 2005.
23
Kailash Chand Sharma v. State of Rajasthan, AIR 2002 SC 2877.

20
Requirement as to residence in state Article 16(3): Reservation of Posts for Backward
Classes Article 16(4): Clause (4) of Article 16 expressly permits the State to make "provision
for the reservation of appointments or posts in favour of any backward class of citizens which, in
the opinion of the State, is not adequately represented in the services under the State”. The
expression "backward class of citizens" in Article 16(4) includes the Scheduled Castes and the
Scheduled Tribes. This Clause, however, cannot be extended to persons acquiring SC/ST status
by voluntary mobility. Further, children of intercaste married couples, of which one is SC/ST,
have been held not entitled to claim reservation benefit. However, such children can claim
relaxation of marks.
Reservation in promotion-seventy seventh, Amendment, 1995 Article 16(4-A): The Court
observed that while it was certainly just to say that a handicap should be given to backward
classes of citizens at the stage of initial appointment, but it would be a serious and unacceptable
inroad into the rule of equality of opportunity to say that such a handicap should be provided at
every stage of promotion throughout their career. That above rule has been modified as regards
the members belonging to the scheduled Castes and the Scheduled Tribes, by the Constitution
(Seventhly-seventh Amendment) Act, 1995, which has added a new Clause (4A) to Article 16
which provides: Nothing in this article shall prevent the State from making any provision for
reservation in matters of promotion to any class or classes of posts in the services under the State
in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State are
not adequately represented in the services under the State.24
Reservation in promotion, catch-up rule negated 85th amendment 2001: The Apex Curt
further observed that the rule of reservation gave accelerated promotion, but it did not give the
accelerated consequential seniority. The Court explained that a reasonable balancing of the rights
of general candidate and roster candidate would be achieved by following the catch-up rule.
According to this rule if "in case any senior general candidate at level 3 goes further up to level
4, in that case the seniority at level 3 has to be modified by placing such a general candidate
above the roster promote reflecting their inter se seniority at level.25

24
Article 16 of the Constitution of India.
25
Article 16-(4-A)85th amendment Act 2001.

21
 C. Abolition of Untouchability-
Article 17 abolished "Untouchability" and forbids its practice in any form. It further declares that
"the enforcement of any disability arising out of Untouchability shall be an offence punishable in
accordance with law. It contains another specific application of the principle of equality before
the law. 26 Article 17 places the term “Untouchability” in inverted commas. Accordingly, the
subject-matter of this Article is not Untouchability in its literal or grammatical sense, but the
practice as it has developed historically in India. So understood, it was a product of the Hindu
Caste System, according to which particular section amongst the Hindus had been looked down
as untouchables by the other sections of that society.27

26
Article 35 Empowers parliament to make laws Inter alia prescribing to be offence under part III of the constitution
p. 110.
27
Shastri Yana Puriusdali v. Muldas Bhudradas Vaish , AIR 1996 SC 1119.

22
 IV. DIRECTIVE PRINCIPLES OF STATE UNDER 35 TO51
PROVIDED SOCIAL ECONOMIC AND POLITICAL
JUSTICE

Introduction –
Part IV of the Constitution sets forth the ideals and objectives to be achieved by the State for
setting up in India a Social Welfare State, which aims at social welfare and the common good
and to secure to all its citizens, justice-social and economic. The inspiration for including in the
316 AIR 2002 SC 177 187 Constitution, such Principle is drawn from the Constitution of
Ireland, 1937.

Object and purpose Behind the Directive Principles: is to bring social welfare state –
The founding-fathers were aware of the drawbacks; the country had been suffering from, such as,
poverty, unemployment, and lack of education, social, economic, and political backwardness.
They, in order to eradicate, these evils, set forth in the very Preamble, the ideals and objectives to
be achieved. The intention was to establish in India a democracy-political, economic and social.
To achieve this cherished goal, the trainers were unanimous to secure to the people practically all
the prevailing political, social and economic rights. The effect of the insertion of Articles 31C
was to provide supremacy for Directive Principles contained in Articles 39(b) and 39(c) over
Fundamental Rights contained in Articles 14, 19 and 31.

Promotion of social justice order in which social, economic and political justice –
In State of Mysore v. Workers of gold mines28 it had observed that social and economic justice
have been given a place of pride in our constitution.Article 38(1) and 43 of the constitution:
38(1) provides requires-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 institution of national life. Clauses (2) article 38—which was
inserted by the constitution (44th amendment) act 1978 further requires—the state shall, in
particular, strive to minimize inequalities income and Endeavour to eliminate inequalities in

28
AIR 1958 SC 923.

23
status, facilities and opportunities, not only amongst, individuals, but also amongst groups of
people residing in different areas or engaged in different vocations318— Article 43—enunciates
another directive principal by providing that. The Shall Endeavour to secure, by suitable
legislation or economic origination or in any other way, to all workers agriculture, industrial or
otherwise, worth a living wage, condition of work ensuring a decent standard of life and full
enjoyment of leisure and social and cultural opportunities supreme court emphasized that the
concept of social and economic justice is a living concept of revolutionary import, which gives
substances to the Rule of law and meaning and significance to the ideal of a welfare state.

Enforcement Of Social Justice Through Economic Justice Under Article 39 –

Article 39 provides: "The State shall, in particular, direct its policy towards securing-
(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;
(b) that the ownership and control of the material resources of the community are so distributed
as best to sub serve the common good;
(c) that the operation of the economic system does not result in concentration of wealth and
means of production to the common detriment;
(d) that there is equal pay for equal work or both men and women;
(e) that the health and strength of workers, men and women, and the tender age of children are
not abused and that citizens are not forced by the economic necessity to enter avocations
unsuited to their age or strength 29 . Those 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.

Equal Justice and Free Legal Aid (Article 39-A) –

Article 39A obligates the State to secure that "the operation of the legal system promotes justice,
on a basis of equal opportunity, and shall, in particular provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities for securing justice are
not denied to any citizen by reason of economic or other disabilities". This Directive Principle
was inserted by the Constitution (42nd Amendment) Act 1976.Article 39A promotes justice on

29
Article 39 of the constitution of India.

24
the basis of equal opportunities. It imposes an imperative duty upon the State to provide free
legal aid to the poor30
The court in Rajan Dwivedi v. Union of India31 ruled that it could issue a writ of mandamus to
enforce Article 39-A and the social obligation of equal justice and that free legal aid had to be
implemented by suitable legislation or by formulating scheme for free legal aid. In pursuance of
this suggestion Parliament passed the Legal services Authorities Act, 1987 Article 39-A of the
Constitution of India provides that State shall secure that the operation of the legal system
promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by
suitable legislation or schemes or in any other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disability. Articles 14 and
22(1) also make it obligatory for the State to ensure equality before law and a legal system which
promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that
constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the
poor, downtrodden and weaker sections of the society.32 Later the provisions for Legal Aid to the
poor in civil matter were also incorporated in the Code of Civil Procedure.

Village Panchayats (Article 40 of the constitution and social justice –

Article 40 commands that "the State shall take steps to organize village panchayats and endow
them with such powers and authority as may be necessary to enable them to function as units of
self-government". The Constitution (73rd Amendment) Act, 1992 and the Constitution (74th
Amendment) Act, 1992 which have inserted Article 243 to 243ZG are the major steps taken in
the direction of implementing the Directive Principles contained in Article 40.
The 73rd Amendment to the Indian Constitution has provided for the reservation of the seats and
positions for women in the Panchayati Raj institutions. It was considered as the most effective
institution to remove inequality, invisibility and powerlessness among the Indian women. The
question of political empowerment of women in rural India had assumed considerable
significance with the 73rd Constitutional Amendment. This amendment mandated the minimum
one-third reservation for women in Panchayati Raj bodies, which is one of the most important
aspects of this constitutional initiative. Along with that it also brought unlimited opportunities for

30
Article 39-A of Indian constitution inserted by the42 amendment 1976.
31
AIR 1995 SC 10.
32
Chaudhary Baidynath "Legal Aid Programme as an Instrument for Social Justice’’ I.L. I vol 38/2 1996.

25
the women to participate in the grassroots level politics to ensure that the voice of the rural
women is heard. In this way the role of women at the grassroots level is not limited only to their
involvement in the decision making but also in the rural development process 325 It is
disheartening that even after providing them with 33 percent reservation in the state Panchyats;
they are still confined to the four walls of their house. 'Going by the participation level of these
women in the election, one can safely say that majority of them are merely present but they are
not participating at all. Their participation in the Panchayati Raj institutions seems to be a
farce.33

Right to work, to Education and to Public Assistance34 -

Article 41 requires that "the State, shall within the limits of its economic capacity and
development, make effective provision, for securing the right to work, to education and to public
assistance in cases of unemployment, old age sickness and disablement, and in other cases of
underserved want.

Just and Humane Conditions of Work35-

Article 42 requires that "the State shall make provisions for securing just and humane conditions
of work and for maternity relief “This Article exhibits the concern of the framers of the
Constitution for the welfare of the workers. (H) Article 43 sets out the ideals to which our Social
Welfare State has to approximate in an attempt to ameliorate the living conditions of the
workers.

Participation of Workers in Management of Industry (Article 43A)-

Article 43A obligates: "The State shall take steps, by suitable legislation or in any other way, to
secure the participation of workers in the management of undertakings, establishments or other
organizations engaged in any industry “Article 43A was inserted by the Constitution (42nd
Amendment) Act, 1976. The workers participation may mean sharing in decision-making and
policy-making with the management, or it may be described as transfer of decision-making right

33
Sunder Ram "Panchayati Raj reforms in India 2007 p. 176.
34
Article 41 of the Indian constitution.
35
Article 42.

26
in the enterprise or undertakings. The Supreme Court held that it was an accepted doctrine today
that labour was the backbone of the Nation, particularly in the area of economic self-reliance.36

Common Civil Code (Article 44) Article 44 directs –

"The State shall Endeavour to secure for the citizens a uniform civil code throughout the territory
of India."37

Free and compulsory Education for Children (Article 45) Compulsory Early Childhood
Care & Education for Children-
The State shall Endeavour to provide early childhood care and education for all children until
they complete the age of six years.38 "The State shall Endeavour to provide, within a period of
ten years from the commencement of this Constitution, free and compulsory education for all
children until they complete the age of fourteen years.

Promotion of Educational and Economic Interest of Weaker Sections (Article 46) –

“The State shall promote with special care the educational and economic interests of the weaker
sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and
shall protect them from social injustice and forms of exploitation333. The expression "weaker
sections of the people" is not defined in the Constitution. It includes all sections of the society,
who were rendered weaker due to various causes including poverty and natural and physical
handicaps.39

Duty to Raise the Level of Nutrition and the Standard of Living (Article 47): provides –
"The State shall regard the raising of the level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties and, in particular, the State
shall Endeavour to bring about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health.

36
Mumbai Kamgar Sabh v. Abdul Bhai AIR 1976 SC 1455.
37
Sarla Mudgal v. Union of India AIR 1995 SC 153.
38
Unni Krishan v. State of Ap. 1993 SC 2178.
39
Article 46 of the Indian constitution.

27
Implementation of Directive principles of state policy-Role of Judiciary regarding social
justice:
It is well settled that both the Fundamental Rights and the Directive Principles aim at the same
goal of bringing about a social revolution and the establishment of a Welfare State. It is a
mandate of the Constitution not to the Constitution (86th Amendment) Act, 2002, inserting
Article 21-A

28
 V. SOCIAL JUSTICE AND FUNDAMENTAL DUTIES

Other provisions of social justice under the constitution of India: (A) Fundamental duties
regarding social justice U\A 51A –
To protect and improve the natural environment including forests, lakes, rivers and wildlife, and
to have compassion for living creatures. Lakes, rivers and wildlife, and to have compassion for
living creatures. To develop the scientific temper, humanism and the spirit of enquiry A parent or
guardian to provide opportunities for education to his child or, as the case may be, ward between
the age of six and fourteen years. These Duties have been added to implement the
recommendations of the Swaran Singh Committee reported in 1976. These duties are intended to
create psychological consciousness among the citizens and are of merely educative value. These
Duties have been added to implement the recommendations of the Swaran Singh Committee
reported in 1976. These duties are intended to create psychological consciousness among the
citizens and are of merely educative value. 40

Object and Importance of the Fundamental Duties-

The fundamental duties have been incorporated in the Constitution with the mere object to
remind every citizen that while enforcing his fundamental rights, he must also be conscious of
his fundamental duties. These duties, it is said, would help to strengthen our democracy. These
provisions are made for Enforcement of Fundamental Duties. In Surya Narain v. union of India41
The Rajasthan High Court held that the duties under Article 51A were the duties of the
individual citizens. They cast no public duties and, therefore, a mandamus could not be sought
against an individual who did not observe his duties under Article 51A. Minister in charge of
tribal welfare who may in addition be in charge of the welfare of the scheduled castes and
backward classes. Article 244 (1 ) Regarding administration of scheduled areas and tribal areas -
(1) The provisions of the Fifth Schedule shall apply to the administration and control of the
Scheduled areas and Scheduled tribes in any state other than the state of Assam, Meghalaya,
Tripura and Mizoram. (2) The provisions of the sixth schedule shall apply to the administration
of the tribal areas in the state of Assam, Meghalaya, Tripura and Mizoram.

40
The New Caluse (K) was Insurted by the 86 Constitutional Amendment Act 2002.
41
AIR 1982SC135.

29
  Article 330: Reservation of seats for the scheduled castes and scheduled tribes in the House
of People. Article 332: Reservation of seats for scheduled castes and scheduled tribes in the
Legislative Assemblies of the states.
 Article 334: Reservation of seats and special representation in Legislative Assemblies and
House of People to cease after fifty years.
 Article 335: Claims of scheduled castes and scheduled tribes to service and posts. The
claims of the members of the scheduled castes and scheduled tribes shall be taken into
consideration consistently with the maintenance of efficiency of administration in the
making of appointments to service and posts in connection with the affairs of the Union or
of a state.
 Article 338: National Commission for scheduled castes and scheduled tribes.
 Article 339: Control of the Union over the administration of Scheduled castes and Scheduled
tribes.
 Article 340: Appointment of a commission by the president to investigate the conditions of
backward classes.
 Article 341: Power of the President to specify the castes, races or tribes or posts of or groups
within castes, races or tribes as scheduled castes.42

42
Article 330 to 342 of the Indian constitution.

30
 VI. CONCLUSION

Though there is a remarkable progress in the economy, science and technology, infrastructure
development but the gap between the rich and poor is widening day by day. The socially
excluded sections of the poor are systematically left behind from their countries’ progress. Their
excluded status is the product of multiple and intersecting inequalities. Though various initiatives
have been taken by the government to achieve the target even though some of the targets are far
from to achieve and still comprehensive programmes and policies are required to achieve these
targets. The constitution should be interpreted in such a manner to make it a living document in
order to fulfill the aspirations of the people. The judiciary has played a great role in updating the
constitution through its positive interpretation. It is the collective effort of all the organs of
government which lead the social justice to all the citizens. The need of hour is to ensure the
proper and balanced implementation of policies so as to make social justice an effective vehicle
of social progress.

31
 VII. REFRENCES

1. Amartya Sen, The Idea of Justice, Oxford University Press, 2009. ·

2. Amit Bhandari, Development with Dignity, National Book Trust of India,
New Delhi, 2005.
3. Andreas Follesdal and Thomas Pogge (eds.), “Real World Justice: Ground,
Principles, Human Rights and Social Institutions, Springer, The Netherlands,
2005. ·
4. Andrew Kuper, Democracy Beyond Borders: Justice and Representations in
Global Institutions Oxford University Press, 2004
5. Gopal Guru, Constitutional Justice: Positional and Cultural, Rajeev
Bhargava (ed.) Politics and Ethics of the Indian Constitution, New Delhi:
Oxford University Press, 2013.
6. https://gjs.appstate.edu/social-justice-and-human-rights/what-social-justice
7. http://www.gandhi-manibhavan.org/activities/essay_socialwelfare.htm
8. http://www.mkgandhi.org/articles/gandhian-perspective-of-
development.html
9. http://www.yourarticlelibrary.com/sociology/mahatma-gandhi-views-on-the-
basic-issues-of-social-change/38489/

32