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The Concept
Of Social Justice
The term
social justice was first used in 1840 by a Sicilian
priest,
Luigi Taparelli d'Azeglio, and given prominence by Antonio Rosmini
Serbati in
La Costitutione Civile Secondo la Giustizia Sociale
in 1848. It has also enjoyed a significant audience among
theorists since John Rawls
book.
A
Theory of Justice has used it as a pseudonym of distributive
justice.
The concept of social justice is a revolutionary concept which
provides
meaning and significance to life and makes the rule of law
dynamic. When
Indian society seeks to meet the challenge of socio-economic
inequality
by its legislation and with the assistance of the rule of law, it
seeks
to achieve economic justice without any violent conflict. The
ideal of a
welfare state postulates unceasing pursuit of the doctrine of
social
justice. That is the significance and importance of the concept of
social justice in the Indian context of today.
The idea of welfare state is that the claims of social justice
must be
treated as cardinal and paramount. Social justice is not a blind
concept
or a preposterous dogma. It seeks to do justice to all the citizen
of
the state. Democracy, therefore, must not show excess of valour by
imposing unnecessary legislative regulations and prohibitions, in
the
same way as they must not show timidity in attacking the problem
of
inequality by refusing the past the necessary and reasonable
regulatory
measures at all. Constant endeavour has to be made to sustain
individual
freedom and liberty and subject them to reasonable regulation and
control as to achieve socio-economic justice. Social justice must
be
achieved by adopting necessary and reasonable measures. That,
shortly
stated, is the concept of social justice and its implications.
Citizens
zealous of their individual freedom and liberty must co-operate
with
democracy which seeks to regulate freedom and liberty in the
interest of
social good, but they must be able to resist the imposition of any
restraints on individual liberty and freedom which are not
rationally
and reasonably required in the interests of public good, in a
democratic
way. It is in the light of these difficult times that the rule of
law
comes into operation and the judges have to play their role
without fear
or favour, uninfluenced by any considerations of dogma or isms.
The term
social justice is a blanket term so as to include both social
justice
and economic justice.
The
Problems Of The Poor In India
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. Equality
of
opportunity to all the citizens to develop their individual
personalities and to participate in the pleasures and happiness of
life
is the goal of economic justice. The concept of social justice
thus
takes within its sweep the objectives of removing all inequalities
and
affording equal opportunities to all citizens in social affairs as
well
as economic activities. The problem of poverty and unequal
distribution
of wealth may be confined to the bigger cities and towns in India
but
the problem accentuated by the vice of social inequality existing
in a
gross form prevails in all of our villages. For instance, the harijans
constitute a large class of landless labourers who are treated as
untouchables by the rest of the community, who have no house to
live in,
generally no clothes to wear, who do not get food to eat &
sometimes
even decent drinking water is beyond their reach. The poor also
have no
access to legal assistance. Poor people are vulnerable to
injustice.
Poverty fosters frustration, ill feeling and a brooding sense of
injustice. Democracy realizes that this problem which concerns a
large
number of citizens cannot be successfully met unless law is used
wisely
to restore balance to the economic structure and to remove the
causes of
economic inequality.
The
Constitution Of India And Social Justice
The Constitution of India has solemnly promised to all its
citizens
justices-social, economic and political; liberty of thought
expression,
belief, faith and worship; equality of status and of opportunity;
and to
promote among the all fraternity assuring the dignity of the
individual
and the unity of the nation. The Constitution has attempted to
attune
the apparently conflicting claims of socio-economic justice and of
individual liberty and fundamental rights by putting some relevant
provisions.
Article 19 enshrines the fundamental rights of the citizens of
this
country. The seven sub-clauses of Article 19(1) guarantee the
citizens
seven different kinds of freedom and recognize them as their
fundamental
rights. Article 19 considered as a whole furnishes a very
satisfactory
and rational basis for adjusting the claims of individual rights
of
freedom and the claims of public good.
Articles 23 and 24 provide for fundamental rights against
exploitation.
Article 24, in particular, prohibits an employer from employing a
child
below the age of 14 years in any factory or mine or in any other
hazardous employment. Article 31 makes a specific provision in
regard to
the fundamental right to property and deals with the vexed problem
of
compulsory acquisition of property.
Article 38 requires that the state should make an effort to
promote the
welfare of the people by securing and protecting as effectively as
it
may a social order in which justice social, economic and political
shall
inform all the institutions of national life. Article 39 clause
(a) says
that the 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
disabilities.
Article 41 recognizes every citizen's right to work, to education
& to
public assistance in cases of unemployment, old age, sickness &
disablement and in other cases of undeserved want. Article 42
stresses
the importance of securing just and humane conditions of work &
for
maternity relief. Article 43 holds before the working population
the
ideal of the living wage and Article 46 emphasizes the importance
of the
promotion of educational and economic interests of schedule
castes,
schedule tribes and other weaker sections.
The social problem presented by the existence of a very large
number of
citizens who are treated as untouchables has received the special
attention of the Constitution as Article 15 (1) prohibits
discrimination
on the grounds of religion, race, caste, sex, or place of birth.
The state would be entitled to make special provisions for women
and
children, and for advancement of any social and educationally
backward
classes of citizens, or for the SC/STs. A similar exception is
provided
to the principle of equality of opportunity prescribed by Article
16 (1)
in as much as Article 16(4) allows the state to make provision for
the
resolution 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. Article 17 proclaims
that
untouchability has been abolished & forbids its practice in any
form &
it provides that the enforcement of untouchability shall be an
offence punishable in accordance with law. This is the code of
provisions
dealing with the problem of achieving the ideal of socio- economic
justice in this country which has been prescribed by the
Constitution of
India.
Where Does
The Solution Lie?
The solution to social injustice lies within us only. We should be
aware
of the expressions - the poor, the backwards, social justice which
are
being used to undermine standards, to flout norms and to put
institutions to work. We should subject every claim
whether it is
made
in the name of the poor, the backward, whosoever to rational
examination. After it has been in effect for a while, subject
every
concession to empirical evidence. We should shift from equality of
outcomes to equality of opportunities. And in striving towards
that,
nudge politicians to move away from the easy option
of just
decreeing
some reservations, etc to doing the detailed and continuous work
that
positive help requires, the assistance that the disadvantaged need
for
availing of equal opportunities. We must bear in mind that if the
majority disregards smaller sections in the community, it drives
them to
rebellion. We should try to refashion the policies of state on
truly
secular and liberal principles. The individual and not the group
should
be the unit of state policy.
Since no society is static, and social processes are constantly
changing, a good legal system is one which ensures that laws adapt
to
the changing situations and ensure social good. Any legal system
aiming
to ensure good should ensure the basic dignity of the human being
and
the inherent need of every individual to grow into the fullness of
life.
The hope of the Indian masses does not lie in the legal system
alone,
but in their conscious awakening and fight for social and economic
justice. Knowledge of their legal rights however, can be an
important
motivating force in this. Many NGO's and individuals are emerging
in
different parts of the country to take up the cause of social
change and
change for a more just India, where justice will not merely be
talked
about in intellectual discussions on the intricacies of law, or
written
about in books, which the masses can't read, or exchanged for good
old
money, but actually lived and experienced by the majority of the
people.
Indian
Judiciary'S Interpretation Of Social Justice
In
Oriental Insurance Co. Ltd. v/s Hansrajbai V. Kodala (2001) the
Apex
Court held that "The object is to expeditiously extend social
justice to
the needy victims of accidents curtailing delay - If still the
question
of determining compensation of fault liability is kept alive, it
would
result in additional litigation and complications in case
claimants fail
to establish liability of defendants - Wherever the Legislature
wanted
to provide additional compensation, it has done so specifically."
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."
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."
So we can see that the Supreme Court has always stepped in to
protect
the interest of the Indian citizens, whether it has been has the
case of
consumer protection or claiming insurance or be it representation
of
suppressed classes. It has used the medium of social justice as an
umbrella term to deliver justice.
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Concept Of Social Justice And The Poor
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The
author can be reached at:
anshuman.gupta@legalserviceindia.com /
