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Social Justice and Constitution of

India

(CONSTITUTIONAL GOVERNANCE)

Submitted by: Submitted to:

Submitted on
March 7, 2003

NATIONAL LAW UNIVERSITY

JODHPUR

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ACKNOWLEDGEMENT

“A mind troubled by doubt

Cannot focus on the course to victory”

As a child, you acknowledged everything you accomplished, as you grow older

and more sophisticated, you acknowledge only major accomplishments but an endeavor

of this magnitude would not have been possible without the invaluable help and support

of Dr. Jose P Verghese and Shri V.S.Shasthri. I express a deep sense of gratitude to

them.

But I still fail to understand the scarcity of this page to put in the efforts of all

those people who helped me and guided me through this small part of the paper that I

have completed.

Anything that I do in my life is incomplete without the blessings of my God who

are my parents only.

()

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TABLE OF CONTENTS

S. No. PARTICULARS PAGE No.

1 Introduction 6

2 Research methodology 7

3 Social Justice: An overview 8

4 Philosophy of Reservation policy and different Principles 13

5. Social Justice: A different Perspective 18

6. Ambedkar and Social Justice 21

7. Constitution: Ensuring Social Justice 24

8. Case Laws 26

9. Bibliography 47

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LIST OF ABBREVIATIONS

AIR All India Reporter

Ar. Article

Arts. Articles

Cl. Clause

Dr. Doctor

SC Scheduled Caste

SCC Supreme Court Cases

ST Scheduled Tribes

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LIST OF CASES

1) A.B.S.K. Sangh v. Union of India (AIR 1981 SC 297)


2) Anjali v. State of West Bengal (AIR 1952 Cal. 825)
3) Kuldeep Kumar Gupta v. H.P.S.E.B. (AIR 2001 SC 308)
4) M/S J K Cotton Spinning and Weaving Mills Co. Ltd. v. The Labour Tribunal of
India (AIR 1964 SC 737)
5) State of Madras v. Champakam Dorairajan (AIR 1951 SC 226)
6) Triloki Nath v. State of Jammu and Kashmir (AIR 1969 SC 1)
7) Valsamma Paul v. Cochin University (1996)3 SCC 545

CHAPTER 1

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CHAPTER 2
RESEARCH METHODOLOGY

TOPIC

Social Justice and Constitution of India.

AREA

Social Justice as guaranteed under Article 14 to 16 of our constitution.

OBJECTIVES

This project aims at finding the scope of Social Justice in India. This project deals with

the purpose, object and necessity of the Social Justice. This project also deals with

reservation policy and an overview of Articles 14, 15 and 16. This project also deals with

different debatable issues like Whether system of classification of Backward Classes

in India is appropriate or not?

RESEARCH QUESTIONS

1) Whether the reservation policy is good enough to impart social justice or not?

2) Why reservation on Caste system?

3) To trace out the philosophy behind Social justice in India?

RESEARCH METHODOLOGY

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The methodology used in this project is deductive in nature. I went through different

books, different Acts and magazines.

FOOTNOTING STYLE

National Law University, jodhpur’s footnoting style is used in this project.

CHAPTER 3
SOCIAL JUSTICE: AN OVERVIEW
Law is a product of society and it regulates human conduct, human relations, institutions,
traffic, transactions etc. in a given society. Thus the laws are bound to vary from society
to society. According to Bentham, laws should endeavour to promote the happiness of
the greatest number. Pound regarded law as a means of social engineering. Law plays a
tremendous role in the development of society as well as country. For example laws in
Pakistan have been made so harsh to meet requirements of feudal military authorities that
people there are finding difficult to meet the requirements of social justice. In Southern
Africa the laws are being harsh to crush the liberation movement. It is also a historical
truth that “law is supreme” but authority in power mould it to justify its existence and
actions.

We talk of concept of social justice. What does it mean? In this, two


concepts are involved simultaneously; one of the concepts of society and other is the
concept of justice. Justice can be defined as “one of the pillar of society” and without it
no association of human individual can subsist. But after all “justice” is not capable of
precise meaning. Justice may not mean expediency, prudence, equality, liberty,
generosity, friendliness, or goodwill although it involves an aspect of each of these terms.
Justice is essentially an other regarding virtue. Making other man merely happy may not
always being just- one may be unjust to a scholar by exhibiting nice movies at the time of
the examination even though he may be happy if he can see them. As far India is
concerned, justice has been closely related to dharma. Dharma refers specifically to

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moral functions of rewarding good and punishing the evil. The dharma acquires the
meaning of what is just and customary in conduct. There is both moral justice and legal
justice. Moral justice is not enforceable by law whereas legal justice is enforceable.

The concept of liberty or freedom is slightly different from the concept of


justice. It deals with the question, who shall make a decision, but justice exclusively deals
with how to make decision.

Justice V.R. Krishna Iyer said that “Law in India cannot be


allowed to be the living coffin of dead soul of social justice. Human law and human
justice desiderate a new scheme of things…………..”
Social justice came into limelight during the French
Revolution of 1789. It is generally expressed in the terms of liberty, equality and
fraternity. Thus, “the notion of social justice postulates that if the question of merit
deserves attention, the demand of the need of the oppressed cannot be ignored. The
justification behind meeting the needs of the oppressed is that they arise out of
deprivation and exploitation of the system. The oppressed themselves are not responsible
for their disabilities, backwardness and vulnerability. As such, the basic premise of social
justice is emancipation of the under-privileged, exploited and oppressed sections of
society1. Its main aim is to liberate mankind from traditional bondage of social justice and
economic exploitation. However, in sociological terms, justice has different meaning in
relation to the nature of political systems, viz., capitalist, socialist and democratic
structure of the government.

The concept of social justice is founded on the basic ideal of socio-


economic equality and its aim is to assist the removal socio-economic disparities and
inequalities. Nevertheless in dealing with industrial matters, it doesn’t adopt a doctrinaire
approach a refuse to yield bindly to abstract notions, but adopts a realistic and pragmatic
approach. It therefore, endeavours to resolve the competing claims of employers and
employees by finding a solution which is just and fair to both the parties with the object
1
Aiyer, K.J., Constitutional Law of India, 12, (Allahabad: The law book Co.Pvt. Ltd.,1989)

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of establishing harmony between labour and capital. The ultimate object of social justice
is to help in the growth and progress of national econnmy as laid down in the case of
M/S J K Cotton Spinning and Weaving Mills Co. Ltd. v. The Labour Tribunal of
India2.
Social justice relates to those rights which an individual shares in
common in the society, since these rights flow from the society being its essential organ.
Laski put forward that “unless socialism exists, democracy can’t work”. Perhaps this idea
made our constitution framers to consider that social justice is the balancing wheel
between freedom, political and economic justice making the survival of democracy
possible. The concept of social justice takes within its sweep the objective of removing
all inequalities, and affording equal opportunities to all citizens in social as well as in
economic affairs, requiring a number of efforts to lift the people from the lowly condition
to a higher level.
The preamble and Article 32 of our Constitution envision social justice
as the arc to ensure life to be meaningful and liveable with human dignity. Social justice,
equality and dignity of person are cornerstones of our democracy. The concept of social
justice, which the Constitution of India engrafted, consists of diverse principles essential
for the orderly growth and development of personality of every citizen. Social justice is
thus an integral part of justice in the generic sense. Justice is the genus, of which social
justice is one of its species. Social justice is dynamic device to mitigate the suffering of
poor, week, dalit, tribles and deprived sections of the society and to elevate them to the
level of equality to live a life with dignity of person. Social justice is to a simple and
single idea of a society but is an essential part of complex social change for the relief of
poor etc. One of the objectives of social justice is to make the life of weaker section
liveable, for greater good of society at large. In another words, the aim of social justice is
to attain substantial degree of social economic and political equality (which is the
legitimate expectation and constitution goal). The concept of social justice embeds
equality to flavour and enliven the practical contents of life social justice and equality are
complimentary to each other so that both should maintain their vitality3.
2
AIR 1964 SC 737
3
Seeravi, H.M., Constitutional law of India: - A Critical Commentary,22, (Delhi, Universal Book Traders,
Fourth ed., 1999)

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One can say that social justice is the comprehensive form to create
social balance by law harmonizing the rival interests of different sections in the social
justice structure by means of which alone it would be possible to build up a welfare state.
In certain cases court laid down that social justice is a fundamental right. While leading
with Article 39A social justice would include “legal justice” which means that the system
of the administration of the justice must provide a cheap and effective instrument for
realization of justice by all sections of the society.

Talking about social justice, one extreme view is that every man should
stand or fall on his individual merit or capacity and should not seek any gratuitous
assistance from anybody. One might say that we are living with the principle of survival
of fittest, so any claim for the assistance from other is unnatural. Absolute competition is
regarded as the essence of life. Moreover this is also a part of human nature. The uneven
characteristics of the human beings (who are members of society) the unequal
distribution of natural resources in the world, the gradual depletion of these resources
coupled with the psychology of scarcity of goods and resources that are created as time
passes constitute strong factors against the blind belief in the myth of pure competition.
No country can say that he it is self-sufficient in all respects and no individual can say
that he can live without any kind of assistance from others. Thus, here comes the
necessity of social justice. The individual justice between two parties given by is a very
narrow concept. Our preamble talks about the justice in society. “Social justice” is a
broader concept. This broader concept of social justice can be explained in following
way in two basic elements of liberty and equality:-
“first a person is to have an right to the most extensive basic
liberty compatible with a similar liberty for others. Second, judicial and economic
inequalities are to be arranged so that they are both reasonably accepted to everyone’s
advantage and attached to position and offices open to all.”

This so called competition between liberty and


equality is settled by the concept of social justice. Our constitution mentions justice first
and liberty next. Social justice basically implies equality of opportunity to those who

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have been their dues. Article 14 with the further assistance of Article 15 and 16 of our
constitution states about the “Doctrine of equality” which incorporates that no one can
be discriminated on the ground of religion, race, caste, sex, place of birth or any of them.
“Justice, social, Economic and political”, is the sum total of the aspirations incorporated
in part IV. During the freedom struggle, Ambedkar's emphasis on issues related to social
justice forced the leaders of the national movement to take these up as part of the agenda
associated with the main demand for unshackling the country from the chains of
colonialism4. It was no coincidence that Gandhi, who had some differences with him on
the issue of a separate electorate, suggested Ambedkar's name to head the committee to
draft the Constitution. Further with these Articles of our constitution, Article 38 of our
constitution declared India as a welfare state ‘to promote the welfare of the people by
securing and protecting as effectively as it may a social justice order in which justice-
social justice, economic and political- shall inform all the institutions of national life. The
core of Directive Principles relating social justice can be found particularly in Article 23,
38, 39 and 46 and Articles 15(2) and 17 from part III of the constitution and are equally
fundamental to consider the constitutional philosophy of development of rural weaker
sections. The judicial awareness of the caste structure and consequent backwardness of
the certain sections of people in India, influenced the court’s approaches towards the
reservation question. Yet the basic need for the unity and integrity of the country
prevailed upon the court to adopt a cautious approach in social justice engineering
through the equality guarantee By social justice we mean social equality. Social justice
is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and
deprived sections of the society and to elevate them to the level of equality to live a life
with dignity of person5. It became evident to that in order to administer equality before
law some positive steps giving preferential treatment to those who are socially and
economically unequal are necessary. Otherwise equal treatment of different groups whose
situations and requirements are different would actually result in inequality. In the
determination of castes and classes deserving the support of reservation in education, job

4
Shukla V.N., Constitution of India,14, (Lucknow, Eastern Book Company, 9th Ed., 2001)

5
Singh, M.P.,The Constitution of India,3, (Delhi, Delhi Law House, 2nd edition,2002)

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etc., government have not followed a uniform or consistent policy. First in Balaji’s Case6
the court had to intervene and declare that an order providing 68 percent reservation was
a fraud on the State under Article 15(4). The court felt that generally speaking the
reservation shall be less than 50 percent. However, in Thomas Case7 the Supreme Court
modified this approach in relation to posts carried forward from previous years. Now, we
have to take an overview on the reservation system because this is the most important
method for ensuring social justice .

6
AIR 1963 SC 649
7
AIR 1976 SC 490

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THE UNDERLYING PRINCIPLES AND PHILOSOPHY BEHIND
RESERVATION

(a) Reservation would de-stabilize the traditional caste hierarchy and transform the social
structure of Indian society into a homogeneous unit and promote social integration. It is
compensatory justice to off-set the accumulated disabilities of the historically
handicapped sections of the society. It is compensatory discrimination by giving
preferential treatment in Government empoyment and state owned educational
institutions to the traditionally oppressed and underprivileged sections of society. It is
preferential treatment to stimulate development of their neglected talents and absorb them
occupationally and educationally in the main stream of national life. It is compensatory
preference to liberate the oppressed and depressed from their age long social and cultural
shackles.
(b) To sum up the underlying principles and philosophy behind job reservation are:
1). Job reservation is a fundamental right guaratnteed under the Constitution to
Backward Classes and Scheduled Castes.
2). It has been designed as a measure for implementation of Social Justice and to
bring a just social order in this society.
3). It is an adventitious aid and prop to the under-privileged, to give them an
equal opportunity to compete with the more advanced sections of the community.
4). It is compensatory justice to offset the accumulated disadvantages and
disabilities suffered by Backward Classes and Schedule Castes for centuries.
5). It gives them an opportunity to develop their neglected talents and bring them
to the main stream of national life with regard to both education and occupation.
6). It removes social imbalance and tension and paves the way for orderly
progress in a democratic manner.

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THE DEVICE ADOPTED UNDER THE CONSTITUTION TO
IMPLEMENT SOCIAL JUSTICE THROUGH RESERVATON

The twin pillars on which social justice rests are equality of status
and equality of opportunity. How are we to provide equality of status and equality of
opportunities to the historically handicapped sections of society who have been deprived
of education for centuries? How are we to bring these disadvantaged sections of society
both educationally and occupationally to the main stream of national life? In short, how
are we to bring equality in a society of unequals 8? The Constitution under Article 16(4)
has provided for reservation to backward classes in the State Services. Article 15(4) has
provided for reservation to backward classes in State owned educational institutions, and
Article 15(4) and 16(4) providing Job reservation and seat reservations in educational
institutions are fundamental rights guaranteed under the Constitution to backward classes
and it has been designed for implementation of Social Justice to backward classes and it
is further strengthened by Article 38 of the Constitution that gives direction to the
Government to secure a just social order to promote the welfare of the people.

8
Singh, M.P.,The Constitution of India,31, (Delhi, Delhi Law House, 2nd edition,2002)

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SOCIAL JUSTICE: A DIFFERENT PERSPECTVE
The founding fathers of our republic conceived India as the dwelling-place of the spirit of
liberty where social justice would prevail and the nation would be enriched by the
enterprise and labour of its citizens. To bring social equality we have to bring a great
change in our social institutions. Social justice is different from mere equality. Social
justice demands that there should be proper differentials for ability and other laudable
qualities. Elimination of such differentials is the very first negations of social justice. All
the social justice measures taken at the international level and at the national level aim at
increasing the happiness of the people. One important feature about social justice is that
social justice cannot be confined to the man made boundaries of a so-called sovereign

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state. Social justice on the basis of which alone democracy can flourish can have a
meaning for the toiling masses only when the foundation of the present feudal and
capitalist social justice order is uprooted and exploitation of man by man has ended and
all men and women are enabled to live in freedom and given an opportunity to grow to
the full stature for the attainment of which the constitution maker intended them to be.
One can say that social justice is a means as well as a device to ensure life to be
meaningful, and liveable with human dignity. Rule of law is a patent instrument of social
justice to bring about equality in results. Social justice must flow from the legal system,
as otherwise ‘Rule of law’ will breakdown. Social justice and rule of law are dependent
upon each other and in the absence of the one the other cannot exist. In India our
constitution framers have resorted to democratic planning in order to bring about social
justice. Thus they intended to bring social justice by means of socialism. Thus by the
Forty Second amendment of the constitution, the Indian republic has been declared to be
a Sovereign, Socialist, Democratic Republic. Socialism assures the actual participation of
the entire people in the making of policies. This naturally leads to the development of
human personality on all sides – cultural, economic, social and political. Socialism does
not mean only the wiping of every tear from every eye, but it means the putting of
twinkle in every eye and smile on every lip.
Social justice in a broad sense involves political justice, economic
justice or distributive justice. Social justice found a new device in ‘distributive justice’ in
promoting the rule of equality and in the filling of loop between rich and poor. The role
of law, as an instrument of social justice has to adopt itself to serve equality as an
instrument of ‘distributive justice’ in achieving socialism. Social justice measures which
are introduced to reduce the effect of centuries old social injustice include abolition of
untouchability, reservation of seats in educational institutions, government office and
certain other positive measures such as financial assistance given to socially and
economically backward to come on a par to the main stream. The welfare component in
social justice paves the way for promoting the welfare of different segment of society,
such as protecting the aged in the matter of pension and gratuity, equal pay for equal pay
etc. To achieve the main objectives of the preamble it is indispensable to make protective
discrimination among the citizens of the country as there are many disparities amongst

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them based upon social justice, educational and economic conditions, etc. Article 15
gives scope to achieve social justice and economic justice as is desired under the
preamble. Article 15, Cl. (4) lays down that nothing in this article or in Cl. (2) of Art. 29
shall prevent the state from making any special provisions for the advancement of any
socially or educationally Backward Classes or for the Schedule Castes or Schedule
Tribes.Cl. (4) was inserted by the decision passed by the Supreme Court in State of
Madras v. Champakam Dorairajan9 which enables the government to make special
provisions for Backward Classes.
Art. 46 lays down that the state shall promote with special
care the educational and economic interests of the weaker sections of the people, and in
particular, of the Schedule Castes and the Schedule Tribes, and shall protect them from
social justice injustice and all forms of exploitation. Art. 14 forbids class legislation, but
it does not forbid reasonable classification which must not be arbitrary, artificial or
evasive. But it must be based on some real and substantial distinction bearing a just and
reasonable relation to the objects sought to be achieved by the legislation. What
Backward Classes are, is not defined anywhere in the Constitution. This expressly
shows that our constitution makers have intended to determine backwardness on the
grounds of social justice and educational condition, but not on the caste basis.
The development of Public Interest Litigation (PIL) is one of the
greatest services by the judiciary for the cause of poor people. It is undertaken for the
purpose of redressing any social injustice, enforcing any public duty, and protecting
social interest.
In the case of Balaji v. State of Mysore10 , while dealing with
the question of Backward Classes, Justice J. Gadkar said:
“The backwardness under Article 15(4) must be social
justice and educational. It is not either social and educational.” The criterion for
determination of Backward Classes in our country now seems incompetent to dispense
social justice. There are two other criteria, which should also be taken account while
determining Backward Classes:

9
AIR 1951 SC 226
10
AIR 1963 SC 649

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1) Reservation should also be based on the economic
backwardness of a person.
2) Person shall be allowed to avail themselves of the
reservation for only one generation, if substantial benefit has
been received under the reservation. Then alone all sections
of backward classes will be benefited.
We are lacking the environment of social justice. We have poverty, failure to provide
drinking water and primary education, disparity in incomes and concentration of wealth
among few hands. For this judiciary alone can’t be held liable. Politicization, corruption,
economic imbalance etc. are also liable. Years of intensive mass education will be needed
if the standards of rationality and fair dealing, of social justice and individual freedom,
which are enshrined in our constitution, are to breed in the bones of our young man and
woman who are in their formative years and to whom the bright future of the country
belongs. The problem of social justice is an urgent and important in India.

AMBEDKAR AND SOCIAL JUSTICE


Ambedkar was dead against the Hindu caste structure as he was of
the view that this structure has been primarily responsible for committing all sorts of
atrocities on the various sections of the society, particularly the weaker section and
Scheduled caste and Scheduled tribes. He was, therefore against Manu Smriti as it gives a
blank cheque to the Brahimins to commit all sorts of atrocities on Scheduled caste and
Scheduled tribes and justify their evil designs11. Barbara Roger recalls, “ a representative
Of the untouchables caused quite a stir when he called for the floor microphone at the end
of one long session to plead for outside help for his people. He broke down in tears as he

11
Singh, R.G., social justice in India and development of weaker sections, Bindeshwar pathak(ed) 342,
(New Delhi: Inter – India publications, 1997)

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holds the plenary that untouchability were being murdered, beaten, raped and abused
everyday throughout India, while no body outside knew what was happening and the
people were completely friendless within India itself ….” The fact is that the nineteen
century reformer and revolutionary Mahatma Phule and twentieth century intellectual and
revolutionary Ambedkar were the two great Indian personalities who not only understood
the sufferings and plight of the untouchables but themselves have gone through the
agony12. It should be kept in mind that Dr. Ambedkar used the term ‘ untouchable’
(achuta) for ‘dalit’. Even in independent India, the untouchables were living a miserable
life. Ambedkar held responsible the brahminical Hindu social system for dividing the
society into various classes, i.e., the lower caste and the higher caste. According to him,
Brahminism believes in the following principles:-
1. graded inequality between the different classes,
2. Complete disarmament of the Shudras And the untouchables;
3. complete prohibition of education for the Shudras and the untouchables;
4. ban on the Shudras and the untouchables in occupying places of power and
authority and
5. Complete subjugation and suppression of woman.
Therefore, Ambedkar suggested that they should be one and
only one standard of Hindu religion acceptable to all Hindus. Priesthood among
Hindus should be abolished, no ceremony should be allowed to be performed by a
priest does not board a legally valid sanad.
According to Dr. Ambedkar, the root cause of social injustice to
the shudras is the caste system in Hindu society. He observed, “Castes are enclosed
units and it is their conspiracy with clear con science that compels the ex-
communicated to make themselves into a caste. He further maintained that “ the root
untouchability is the caste system, the root of the caste system is religion attached to
varnashram; and the root of brahminical religion is authorization of power.
Untouchability is not only system of unmitigated economic
exploitation, but it is also a system of uncontrolled economic exploitation 13. This is
because there is no independent public opinion to condemn it and there is no impartial
12
Ibid
13
Ibid

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machinery of administration to restrain it. There is no appeal to public opinion, or
whatever public opinion there is, it is opinion of the Hindus, who belong to the
exploiting class and as such favor exploitation. He wanted to remove this
untouchability and to create public opinion wrote several articles in Mook Nayak,
Equality, Janta etc. and organized protest Marches for permitting untouchables in the
temples. He was of the view that the problem of untouchability was basically the
problem of socio- Economic and political equality. He said the downtrodden people
are tired of being governed. They aspire to govern themselves. The urge of self
realization in the downtrodden classes must not be allowed to devolve into a class
struggle or class war. This can only be done by the establishment of equality and
Fraternity in all walks of life. Therefore, to ensure social justice he persuaded the
constituent assembly to incorporate certain provisions in the constitution itself.
Accordingly, under articles 14-18 the right to equality, untouchability has been
declared an offence14. Earlier also, he made frantic efforts for granting socio-
economic Safeguards to the downtrodden people and submitted a memorandum to the
first round table confidence of 1930 which was held in London.
As a result of his relentless fight for social justice for the
downtrodden people, several provisions for protection of the Scheduled caste and
scheduled tribes, women, minorities etc. have been incorporated in the present Indian
constitution.

14
Ibid

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CHAPTER 4

CONSTITUTION – ENSURING THE SOCIAL JUSTICE


The Indian constitution has the species of social justice.
Article 14 to 17 with several Directive Principles are ensuring the Social justice in
India. Art. 14 to 16 form a code by themselves and embody the distilled essence of
the constitution’s casteless And classless egalitarianism. Nevertheless, our founding
fathers were realists, and so did not declare the proposition of equality in its bald
universality but subjected to certain special provisions, not contradicting the soul of
equality, but adopting that never-changing Principal to the ever changing social
milieu15. That is how Article 15(4) and 16(4) have to be Read together with Articles
15(1) and 16(1). The first sub article speaks of equality and second sub article
amplifies its content by expressly interdicting caste as a ground of discrimination. Art.
16(4) imparts to the seemingly static equality embedded in Art. 16(1) a dynamic
15
Supra note at 74

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equality by importing equalization stratagis geared to the eventual achievement of
equality as permissible stated action, viewed as an amplification of Art. 16(1). The his
same observation will hold good for the sub articles of Article 15. Thus we Have a
constitutional fundamental Guaranteed under Art. 14 to 16, but it is a notorious fact of
our cultural heritage that the SC and the ST have been in unfree India nearly
dehumanized and a facet of the struggle for freedom has been the restoration of full
personhood to them together with the right to share in the social and economic
development of the country. Art. 46 is a Directive Principle of State Policy contained
in part IV of our constitution. Every Directive Principle is fundamental in the
governance of country and it shall be the duty of the state to apply that portion in
making laws. The positive ascent of this Article is that the claims of SC and ST to
equalization of representation in services under the state, having regard to their
sunken social status and impotence in the power system, shall be taken into
consideration16. The negative element, which is a part of the Article is that measure
taken by the state, pursuant to the mandate of Articles 16(4), 46 and 335, shall be
consistent with and not subversive of the maintenance of administration. Within this
broad framework the Central Government worked out its policy, way back in 1950
and made subsequent alterations in keeping with the needs of the situation, the poor
progress registered, the militant impatience of the affected SC and ST and the
improved tactics to hasten abolition of the depressed status of these groups by
effective equalization with the rest. Articles 14, 15 and 16 forms a part of a string of
constitutionality guaranteed rights. These rights supplemented each other. Article 16
which ensure to all citizen equality of opportunity in matters relating to employment
is an incident of guarantee of equality contained in Article 14. Article 16(1) gives
effect to Art. 14. Both Art. 14 and 16(1) permit reasonable classification having a
nexus to the object to the achieved.
Discrimination is the essence of classification……
classification is, therefore to be founded on substantial differences which distinguish
persons grouped together from those left out of the groups and such differential
attributes must bear a just and rational relation to the object sought to be achieved. 17
16
Ibid
17
A.B.S.K. Sangh v. Union of India AIR 1981 287 at p.321

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Under Art. 16(1) equality of opportunity of employment means equality as between
members of the same class of employees and not equality between members of
separate, independent class…… A classification in order to be constitutional must be
rest upon distinction that are substantial and not merely illusory. The test is whether it
has a reasonable basis free from artificiality and arbitrariness embracing all and
omitting none naturally falling into the category.18
There are two types of reservation—Vertical and Horizontal. The
former refers to reservation to SC/ST and other backward classes while reservation in
favor of physically handicapped persons can be referred to as horizontal reservation.
Horizontal reservation cut across vertical reservations and can be called inter –
locking reservations. Thus, a handicapped person belonging to the SC/ST category
will be placed in that quota by making necessary adjustments; if he belongs to open
competition category, he will be placed in that category. Even after providing for
horizontal reservation, the percentage of reservations in favour of backward classes of
citizens remains, and should remain, the same.

RESERVATION UNDER ARTICLE 16(4): NO BENEFIT ON MARRIAGE


A candidate who had the advantageous start in life of being
born as a forward caste and had the march of advantageous life but is transplanted
into the backward community by adoption or marriage or by conversion will not
become eligible for the reservation either under Article 15(4) and 16(4) as the case
may be. Acquisition of the status of SC/ST by voluntary mobility into these categories
would be fraud on the constitution and frustrate the benign constitutional policy under
Articles 15(4) and 16(4) of the constitution19.

18
Ibid
19
Valsamma Paul v. Cochin University (1996)3 SCC 545

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CHAPTER 5

1.) State of Madras v. Champakam Dorairajan20

FACTS: The state of Madras was maintaining four Medical Colleges and only 330
Seats were available for students in those for colleges. Out of these 330 seats, 17
Seats were reserved for students coming outside the state and 12 Seats are reserved
for discretionary allotment. By the state and the balance of the seats available are
apportioned between four distinct Groups of districts in the state. In this case, Not less
then twenty percent of the total number of seats available for his candidates of the
state were filled by woman candidates separately for each region, It being offered to
the selection committee to admit to a larger number of women candidates in any
region and if there were eligible for selection on merits vis-à-vis the men candidates
in accordance with the general principles governing such admissions.
For many years before the commencement of the
constitution, the seats in the medical college, so apportioned between the four distinct
groups of districts used to be filled up According to certain proportions set forth in

20
AIR 1951 SC 226

24
what used to be called the communal G.O. Thus, for every 14 seats to be Filled By
the selection committee, Candidates used to be Selected strictly on the following
basis:-
Non-Brahmins(Hindus) 6
Backward Hindus 2
Brahmins 2
Harijans 2
Anglo-Indians and Indian Christians 1
Muslims 1
On 7-6-1950, Sm. Champakam Dorairajan made
an application to the HC of Judicature at Madras under Article 226 of the Constitution
for protection of her fundamental right under Art. 15(1) and 29(2) of the Constitution
and prayed for the issue of writ of mandamus or other suitable prerogative writ
restraining the State of Madras thereof from enforcing, observing, enhancing and by
which admissions into the Madras Medical College were sought or purported to be
regulated in such manner as to infringe and involve the violation of fundamental
right. She stated that on inquiry she came to know that she would not be admitted to
the collage as she belonged to Brahmin Community.

JUDGEMENT: In the judgment, the court stated that It will be noticed that cl. (1) of
Art. 29 Protects the language, script or culture of a section of the citizens , cl(2)
guarantees The fundamental right of an individual citizen. The right to get admission
into any Educational institution of the kind Mentioned in cl. (2) is a right which an
individual citizen has as a citizen And not as a member of any community or close of
citizens. This right Is not to be denied To a citizen of grounds only of religion, caste,
race, sex or any of them. When the candidate has The academic qualifications but is
Refused admission Only on grounds only of religion, race, caste, sex, language or any
of them, then there is clear breach of his fundamental right.
The petitioners We’re denied Admission All
Only because they are Brahmins But for A variety of reasons example a) they are
Brahmins b) Brahmins have a To n allotment of only two seats out of 14 and c) the

25
two seats have already filled up by more meritorious Brahmin candidates. The
classification made in the Communal G.O. is opposed to the Constitution and
constitute a clear violation of the fundamental rights guaranteed to the citizens.
For these reasons stated above, the court decided
that the Communal G.O. being inconsistent with the provisions of the constitution is
void under Art. 13.

2). Anjali v. State of West Bengal21 (AIR 1952 Cal. 825)

FACTS: The appellant in this case that was a girl student applied to the Hooghly
Mohsin College for admission in the 3rd year class with Honours in Economics and
her application was refused. Then she moved to the court for the issue of certain
writs. Her case was that the refusal was solely based on the ground of her Sex and
thus a contravention of Art. 15(1) of the constitution. While being refused admission
to the Moshin College, she like-other eligible girl students, has been offered facilities
for attending the Honour classes in that institution, provided she got herself admitted
in the Women’s College.

JUDGEMENT: The hon’ble court in the judgment stated that if of paramount


importance in cl. (1) of Art. 15 are the words “discrimination” and “only”. What the
Article forbids is the discrimination on all or any of the grounds mentioned in the
Article. All differentiation is not discrimination, but only such differentiation as is
invidious and as is made, not because any real difference in the conditions or natural
difference between the persons dealt with which makes different treatments

21
AIR 1952 Cal. 825

26
necessary, but because of the presence of some characteristics or affiliation which is
either disliked or not regarded with equal favour but which has no racial connection
with the differentiation made as a justifying reason.
Next, the discrimination which is forbidden is only such
discrimination as is based solely on the ground that a person belongs to a particular
race or caste or professes a particular place or is of a particular sex and on no other
ground. Discrimination based on one or more of these grounds and also on other
grounds is not hit by the Article.
Her exclusion from the Moshini college
was not due to the fact that her sex was taboo far less than due to the fact alone, but it
was due to the introduction of a comprehensive scheme for the provision of
educational facilities to both male and female students at Hooghly.
Finally the court said that a special provision for the benefit
of women within the meaning of Art. 15(1) and such provisions made substantially
equal, though not wholly identical facilities available to women students, Art. 15(1)
had not been violated. Thus the appeal was dismissed.

27
28
4). Triloki Nath v. State of J & K22
FACTS: There was a government order for distribution of the vacancies community
wise. For this government made a reservation of 50% of the vacancies for the
Muslims of Kashmir, 40% for the Jammu Hindus and 10% for the Kashmiri Hindus.
While reserving this, the government was of the view that ‘backward class” is
synonym to the “backward class”.

JUDGEMENT: The court decided this order as unconstitutional with the view that
determination of backward classes cannot be on the basis of community, caste, race or
religion. Art. 16 in the first instance by Cls. (2) Prohibits discrimination on ground,
inter alia, of religion, race, caste, place of birth, residence and permits an exception to
be made in the matter of reservation in favour of backward classes of citizens. The
expression “backward class” is not used as synonymous to “backward caste” or
“backward community”. The member of an entire caste or community may in the
social, economic and educational scale of values at a given time be backward and
may on that account be treated as a backward class, but that is not because they forms
a class. In its ordinary connotation the expression “class” means a homogeneous
section of the people grouped together because of certain likenesses or common traits,
and who are identifiable by some common attributes such as status, rank, occupation,
residence in locality, race, religion and the like. But for the purpose of Art. 16(4) in
determining whether a section forms a class, a test solely based on caste, community,
race, religion, place of birth or residence cannot be adopted because it would directly
offend the constitution.
The state policy of the state of J & K is a policy not of reservation
of some appointments or posts; it is a scheme of distribution of seats community
wise. Distribution of appointments, posts or promotion made in implementation of

22
AIR 1969 SC 1

29
that state policy in contrary to the constitutional guarantee under Art. 16(1) and (2)
and is not saved by Cl. (4) and the promotions granted in accordance with this policy
are contrary to the provisions of Arts. 16(1) and (4) of the constitution and therefore
void23. This will not however prevent the state from devising a scheme, consistent
with the Constitutional guarantees, for reservation of appointments, posts or
promotions in favour of any backward class of citizens which is in the opinion of the
state is not adequately represented under the state.
Accordingly, the petition was allowed stating the scheme
unconstitutional.

23
Supra note 6 at 34

30
5). A.B.S.K. Sangh v. Union of India24

FACTS: The Indian Railway with an impressive record of expansion employs a


number of servants in various typically hierarchically and grades. While the Indian
Railway Act, 1890, substantially regulates many of the functions of the railway
administration in India. The focus of the litigation must primarily turn on that issue
and the court must navigate towards egalitarian justice at the level of promotion posts
in the public service, keeping the landmark ruling of this court as mariner compass.
The distributing perpetuation of socio-economic suppression of a whole fifth of
Indian manhood-the dalit- and the righteous resistance to prolonged ‘reverse
casteism’ resulting in deepening demoralization of the economically oppressed- the
soshit- have been projected by counsel on the forensic screen as a conflict between
equalization and equality. The contention of the petitioners was that whether SC and
ST are mere castes within the sense of Article 16(2)? If so, can Art. 16(1) help these
castes through rule of promotional equality?

JUDGEMENT: The problem in this case was that the dynamic and dialects of social
justice vis-à-vis the special provisions Of the constitution calculated to accelerate the
prospects of Employment to the harijans in case of Services particular emphasis on
promotion of this categories In the Indian Railways- That, In all these cases the
cynosure of judicial scrutiny, From the angle of Constitutionality In the Context Of
the guarantee of caste Free Equality to every person.
The goal of the Indian constitution is to be social revolution.
According to Radhakrishnan, India must have a “ Socio- Economic Revolution”
Designed Not only to bring about the real satisfaction of the fundamental needs Of
the common man, But to go much deeper and bring about a Fundamental change in
the structure of Indian Society.

24
AIR 1981 SC 297

31
In this series Swami Vivekananda also said “ the same power is
in every man, the one manifesting more, the other less. Where is the claim of
privilege? All Knowledge is in every soul, even in the most ignorant, He Has not
manifested it, but, he has not had the opportunity, the environments were not,
Perhaps, suitable to him. When he gets the opportunity in the manifest it. The idea
that one man is born superior to another has no meaning in Vedanta; that Between two
nations one is superior And other inferior has no meaning whatsoever ………
Men will be born differentiated; so we’ll have more
powers than others. We cannot stop that…….. But that on account of this power to
acquire wealth they should tyrannise and ride rough over those, who cannot acquire
such wealth, is not a part of the law.
The court Further stated that We could not apprehend The
social dimension of the stark squalour of SC and ST by viewing Art. 16(4) Through a
Narrow Legal aperture But only by a apercu Of the broader demands of Social
democracy, Without which The Republic would cease to be a Reality to one-fifth of
Indian humanity. The final address to the Constituent Assembly by Dr. Ambedkar
drives this point, Not to interpret but to illumine the scheme Of the equality :
Political democracy cannot last unless their 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 the principles of life. These
principles can’t be Separated From each other, If separated there would defeat the
very purpose Of democracy. On the social plane, se have in India a society based on
the principles of graded inequality which means elevation of some and degradation of
others. On the Economic plane, we have a society in which there are some who have
immense wealth as against many who live in absolute poverty.
Art. 16(4) serves to correct a gross social distribution
and denial of human rights to whole groups ostracized by feudal history. A holistic
concept of ponents socio-economic rights for, without basic concept of social justice,
survival with human dignity is an fellow tutional obscurantism and legal literalism,
allergic to sociologically intelligent interpretation.

32
The question of enlarging the scope of the existing
scheme of reservation for Sc and ST in the aforesaid cases has been under the
consideration of the government of India for some time past. The court in the
judgement further stated that Articles 14, 15 and 16 forms a part of a string of
constitutionality guaranteed rights. These rights supplemented each other. Article 16
which ensure to all citizen equality of opportunity in matters relating to employment
is an incident of guarantee of equality contained in Article 14. Article 16(1) gives
effect to Art. 14. Both Art. 14 and 16(1) permit reasonable classification having a
nexus to the object to the achieved.
Discrimination is the essence of classification……
classification is, therefore to be founded on substantial differences which distinguish
persons grouped together from those left out of the groups and such differential
attributes must bear a just and rational relation to the object sought to be achieved.
Art. 16(1) does not bar a reasonable classification or reasonable test for their
selection. Under Art. 16(1) equality of opportunity of employment means equality as
between members of the same class of employees and not equality between members
of separate, independent class…… A classification in order to be constitutional must
be rest upon distinction that are substantial and not merely illusory. The test is
whether it has a reasonable basis free from artificiality and arbitrariness embracing all
and omitting none naturally falling into the category. Thus one can say that state may
classify based upon substantial differentia, groups or classes and this process does not
necessarily spell violation of Art. 14 and 16.
Economic interest of a group – as also social justice to it-
are tied upto with its place in the services under the state. Unlimited reservation of
appointments may be impermissible because it renders Art. 16(1) nugatory. At the
same time, Art. 16(4), calculated to promote social justice and expressive of the deep
concern of the constitution for the limping bracket of the Indians must be given full
play.
Thus finally court said that Excellence and equality may co-
operate fruitfully and need not complete destructively. Ultimately, harijan militancy
must find fulfiment in effective main streaming and creative contribution. On

33
providing opportunities to the Indian dalits, they can make India great and give up
crutches.
Accordingly the petition was dismissed.

7). Valasamma Paul v. Cochin University25

FACTS: Two posts of lecturer in Law Department of Cochin University were


notified for recruitment, one of which was reserved for Latin Catholics. The
appellant, a Syrian Catholic having married a Latin Catholic, had applied for selection
as a reserved candidate. The university selected her on that basis and accordingly
appointed her against the reserved post. Her appointment was questioned by one Rani
George praying for a direction to the University to appoint her in place of the
appellant to the said post.

JUDGEMENT: The learned single judge allowed the writ petition of Rani George.
Then the full bench in the impugned judgment held the same.
The question that court face is one of the constitutional importance
to harmonize the personal law of the citizens and the constitutional goal viz. to accord
equal opportunity to the disadvantaged social segment, envisaged in Articles 15(4)
and 16(4) of the constitution. The learned judge elaborated the contention by saying
that birth by itself is not a determinative factor for claiming protective discrimination
given to backward classes. Environmental and social disabilities are also relevant
factors to which the appellant had volunteered by subjecting herself to them and that,
therefore, she is entitled to the same treatment as is available to the Latin Catholics to
which she was transplanted by marriage.
Social democracy means “a way of life which recognizes liberty,
equality and fraternity as principles of life.” They are not separate items in a trinity
but they form a union of trinity. To diversity one from the other is to defeat the very
purpose of democracy. Article 15(4) and 16(4), therefore, intended to remove social

25
(1996)3 SCC 545

34
and economic inequality to make equal opportunities available in reality. Social and
economic justice is a right enshrined for the protection of the society. The right to
social and economic justice envisaged in preamble and elongated in the fundamental
rights and directive principles of the constitution and in particular in Articles 14, 15,
16, 21, 38, 39 and 46 of the constitution.
The constitution seeks to establish a secular socialist democratic
republic in which every citizen has equality of status and f opportunity, to promote
among the people dignity of the individual, unity and integrity of the nation. The
emphasis, therefore is on a citizen to improve excellence and equal status and dignity
of person. With the advancement of human right and constitutional philosophy of
social and economic democracy in a democratic polity to all the citizens on equal
footing, secularism has been held to be one of the basic features of the constitution.
The court further stated that, the judiciary
recognized a century and a half ago that a husband and wife are under Hindu law, and
so long as the wife survives, she is half of the husband. In the light of the
constitutional philosophy of social integrity and national unit, right o equality assured
by the human rights and the constitution of India, on marriage of a man and a woman,
they become members of the family and are entitled to the social status as married
couple, recognition per se is not a pre-condition but entitled to be considered. The
question is that “Whether a lady marrying a SC, ST or OBC citizen, or one by
transplanted by adoption or any other voluntary act, becomes entitled to claim
reservation under Art. 15(4) or 16(4), as the case may be?
The object of the reservation is to remove the handicaps,
disadvantages, sufferings and restrictions to which the members of the dalits or tribes
or OBC were subjected and was sought to bring them in them in the mainstream of
the nation’s life by providing them opportunities and facilities. A person born in upper
caste and having earlier advantage of education is not entitled to the benefit of Article
15(4). The children born in a backward class would not start his life with advantages
but the child born in a healthy family but afterwards shifted to backward class got
every advantage and every opportunity to develop. So, there is no basis to permit
reservation to the married lady.

35
8). Kuldeep Kumar Gupta v. H.P.S.E.B.26

FACTS: This appeal was directed against the order of Himachal Pradesh
Administrative. The applicant was working as a junior engineer in H.P.S.E.B. The
dispute centers round the question as to whether it is permissible for the employer to
frame regulations, providing a separate quota of promotional avenues for the less
qualified junior engineers in preference to the claim of the diploma holder junior
engineers. In the cadre of the junior engineers, 95% vacancies are filled up by direct
recruitment of the persons, who are diploma holders and only 5% is by promotion
from amongst the lower category, who are usually matriculates with I.T.I. certificate.
The board took a decision to prepare a separate seniority list for their further
promotion.

JUDGEMENT: Providing a quota is not new in the service jurisprudence and


whenever the feeder category itself consist of different category of persons and when
they are considered for any promotion, the employer fixes a quota for each category
so that the promotional cadre would be equi-balanced and at the same time each
category of persons in feeder category would get the opportunity of being considered
for promotion. This is also a sense in the larger interest of the administration when it
is employer, who is best suited to decided the percentage of post in the promotional
cadre, which can be earlier marked for different category of persons. In other words
this provision actually effectuates the constitutional mandate engrafted in Art. 16(1),
as it would offer equality of opportunity in matter relating to employment and it
would not be monopoly of a specified category of persons in the feeder category to
get promotions. Therefore, there is no infraction of the constitutional provision

26
AIR 2001 SC 308

36
engrafted in Art. 16(4) while providing a quota in promotional cadre as it does not
tantamount to reservation.
Administrative efficiency being the consideration though it may
be permissible to have a specified percentage of posts in the promotional quota on the
basis of educational qualification; it cannot be held to be violative of Articles 14 and
16, when such a quota is meant for unqualified Persons in the feeder category.
Employer and the rule making authority would not be debarred to allot a specific
percentage in favour of unqualified matriculate promotee junior Engineers. The
regulation provides that out of 46% of the promotional quota in the cadre of Asst.
Engineers and 8% would be for unqualified matriculate junior Engineers, 4% is
meant for draftsman.
Thus court does not find any infraction of the constitutional
provision engrafted in Art. 16(4) while providing a quota in promotional cadre.
Accordingly, the appeal was dismissed on the basis that further differentiation
amongst the m and providing quota for promotional post for unqualified promotee
junior engineers on basis of longer experience is not violative of constitutional
mandate.

37
CHAPTER 6
CONCLUSION
Social justice is a means as well as a device to ensure life to be meaningful and liveable
with human dignity, social justice and equality are complementary to each other, so that
both should maintain vitality and…… Rule of law is patent instrument of social justice to
bring about equality in results. Social justice measures which are introduced to reduce the
effect of centuries old social injustice include abolition of untouchability, reservation of
seats in educational institutions, government office and certain other positive measures
such as financial assistance given to socially and economically backward to come on a
par to the main stream. The welfare component in social justice paves the way for
promoting the welfare of different segment of society, such as protecting the aged in the
matter of pension and gratuity, equal pay for equal pay etc. Social justice must flow from
legal system; as otherwise, Rule of law will break down. One major problem relating
with the ensuring of Social justice is the enforcement of laws. The judiciary at many
instances directed that the state should legislate to give effect to principles of social
justice, such as the desirability of legislation to ban sexual abusement of children but the
result remain far away. All these efforts on the part of the legislatures and judiciary paved
the way for giving effect to the concept of social justice and making it possible to realize
it.
Thus, social justice can be achieved by balancing “social
right” and “social control”. Social justice relates to those rights which an individual
shares in common with the society, since these rights flow from the society being its
essential organ. I think that the best possible way to achieve complete social justice can
only be socialism because Socialism does not mean only the wiping of every tear from
every eye, but it means the putting of twinkle in every eye and smile on every lip.

38
Let us to proclaim to every soul “Arise, awake and stop not till the
goal is reached.”

BIBLIOGRAPHY

BOOKS AND OTHER REFERENCES

 Aiyer, K.J., Constitutional Law of India, (Allahabad: The


law book Co.Pvt. Ltd.,1989)
 Basu D.D., Shorter Constitution of India, (Nagpur,
Wadhwa & Co., Ed., Justice Y.V. Chandrachud, V.R.
Manohar & Justice B.P. Banerjee, 13th ed., 2001)
 Seeravi, H.M., Constitutional law of India: - A Critical
Commentary, (Delhi, Universal Book Traders, Fourth ed.,
1999)
 Shukla V.N., Constitution of India, (Lucknow, Eastern
Book Company, 9th Ed., 2001)
 Singh, M.P.,The Constitution of India,(Delhi, Delhi Law
House, 2nd edition,2002)

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