Social Justice

“We have enough for everybody’s need. But not enough for everybody’s greed” ~Mahatma
Gandhi

India ranks 131 in 2016 Human Development Index among the 188 countries. The index was
unveiled recently as part of the Human Development Report (HDR) 2016 titled Human
Development for everyone published by the United Nations Development Programme
(UNDP). 

Origin of Social Justice and Jurisprudence:

The greatest Contribution of Ehrlich to Sociological School of Jurisprudence lies in scientific

approach to Study of Law in its Social Context and his emphasis on relation between law and
the life of the Society. His theory of living law came as a vigorous reaction against the
analytical positivism. Ehrlich focused his attention on the Social function of Law. The
purpose of Law according to him was attainment of Social Justice.

Sociological approach of social justice: According to Roscoe pound “Sociological Approach

should ensure that making Interpretation and application of Laws take account of Social
facts”. Pound regards law as a means of social engineering. Pound classification of social
interest as under: Social Interests which include - i. General Health ii. Peace and order iii.
Freedom to form political, economic or religious institution

Social justice; Developments leading to the constitutional safeguards

Position of social justice in medieval time: In 1564 Akbar abolished Jizya and began to
charge uniform trade tax from all, This tax was particularly hated by the Hindus as it was a
symbol of their inferiority and involved quite a lot of humiliation.

Social justice legislation during British period: A large number of Acts were passed related to
the issues viz., abolition of slavery, prevention of exploitation of women and children labour
relation and agrarian reforms and humanization of intuition of marriage etc. during this
period.

The announcement of the British Prime Minister on 13th August, 1932 providing for separate
electorate to the Depressed Classes which came to be called popularly as "Communal Award"
led to introspective searching among the caste Hindu leaders.
 Gandhi did not agree for the communal award and he went on a fast unto death. Dr.
Ambedkar the leader of the Depressed Classes who earlier had strongly pleaded for a separate
electorate for the Depressed Classes on the ground that they were outside the Hindu-fold,
displayed remarkable statesmanship by agreeing for the abolition of communal award. The
agreement between Gandhi and Ambedkar known as "Poona Pact," while doing away with
separate electorate, succeeded to a large extent in securing special rights for the Depressed
Classes.

Some of these ideas were borrowed from the Nehru Report of 1928.

The Indian National Congress at its Karachi Session held in March 1937 adopted the
"Resolution on Fundamental Rights and Economic and Social Change" which highlighted the
fact that: “In order to end the exploitation of the masses political freedom must include the
real economic freedom of the starving millions. The State must safeguard the interests of
industrial workers by making suitable legislation providing for a living wage, healthy
conditions to work and protection from the economic consequences of old age sickness and
unemployment."

In the words of Granville Austin: "The Karachi Resolution as it came to be called meant that
the social revolution would have a vital in shaping India's future Constitution and the
provisions did in fact become the spiritual and in some cases the direct antecedents of the
directive principles."

Social Justice under Indian Constitution

Article 19 enshrines the fundamental rights of the citizens of this country. 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.

i. Article 38: State to secure a social order for the promotion of welfare of the people
i. Right to adequate means of livelihood: article 39(a)
ii. Right against economic exploitation: article 39(b);
iii. Right of both sexes to equal pay for equal work: article 39 (d);
iv. Article 39A: Equal justice and free legal aid
 v. Article 40: Organisation of village panchayats
vi. Article 41: Right to work, to education and to public assistance in certain cases Right to
work; Article 41 of the Constitution provides 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 undeserved want.”
vii. Article 42: Provision for just and humane conditions of work and maternity relief
viii. Article 43: Living wage, etc., for workers
ix. Article 43A: Participation of workers in management of industries
x. Article 44: Uniform civil code for the citizens
xi. Article 45: Provision for free and compulsory education for children\
xii. Article 46: Promotion of educational and economic interests of Scheduled Castes,
Scheduled Tribes and other weaker sections
xiii. Article 47: Duty of the State to raise the level of nutrition and the standard of living and to
improve public health
xiv. Article 48: Organisation of agriculture and animal husbandry
xv. Article 48A: Protection and improvement of environment and safeguarding of forests and
wild life
xvi. Article 49: Protection of monuments and places and objects of national importance
xvii. Article 50: Separation of judiciary from executive
xviii. Article 51: Promotion of international peace and security

Judiciary and Social Justice

In Keshavanand Bharti case. The Supreme Court was declared that India is welfare State as
basic structure in a parliamentary democracy.

Further lead was taken in Minerva- Mill’s case, and the Supreme Court put on firm hold that
the directive principles and fundamental rights should be harmoniously interpreted as two
wheels of the chariot to establish an egalitarian social order

Reservation

After Champakam Dorai Raj's case (1951), Article 15(4), by Constitution, First Amendment
Act, directs to make special provision for the social, economic and educational advancement
of the Scheduled Castes, 'Scheduled Tribes and Backward Classes. Article 15(3) imposes
positive duty of that the State to make special provision in favour of women and children to
remove gender inequality and social injustice. Similarly, while Article 16(1) provides
equality of opportunity to all citizens in relation to public employment, Clause (4) expressly
gears positive equality by making reservation in public employment in favour of Scheduled
Castes Schedule Tribes and Backward Classes who are not adequately represented in the
public services.

Reservation in promotions with the consequential seniority was provided for the Scheduled
Castes and Scheduled Tribes. Equal opportunity for higher education has been guaranteed in
Article 15(4) of the Constitution. The State shall protect them from social injustice and all
forms of exploitation.

Rangachari's case (1962), Thomas case (1976) declared that reservation in Promotions is a
part of equality in Article 16(1) which was reiterated in Indira Sahwny's case (1993) that
Article 16(4) is facet of Article 16(1) itself.

The protection of the minorities in Articles 29 and 30 is a facet of right to social justice and
prohibition on grounds of religion outlawed by guaranteeing freedom of religion, right to
practice of their choice and right to manage subject to social welfare of their institutions.
From Kerala Education Bill case (1958) to Mazomdar's case (2005) is the march of law.

Right to shelter, guaranteed in Article 19(l) (d) was declared as a fundamental right to life
and Chameli Singh case further holding that the right to shelter is a fundamental right.

Article 21 of the Constitution protects the life and personal liberty. No person shall be
deprived of his life or personal liberty except according to the procedure established by law.
It is a guaranteed protection to life. Its deprivation shall be only by the procedure which in
Maneka Gandhi case declared the test of "reasonableness" which must be "just, fair and
reasonable".

Right to Health

Article 47 makes improvement of public health a primary duty of State. Hence, the court
should enforce this duty against a defaulting authority on pain of penalty prescribe by law,
regardless of the financial resources of such authority.

In Paschim Banga Khet Mazdoor Samity v. State of West Bengal, the Court deemed the
failure on the part of the Government hospital to provide timely medical treatment to a person
in need of such treatment a violation of his right under Article-21.
Professional obligation to Protect Life of Accident Victims: – The Supreme Court in its
land mark judgment in Paramanand Katara v Union of India   [25] ruled that every doctor
whether at a Government hospital or otherwise has the professional obligation to extend his
services with due expertise for protecting life. 

Guidelines For Holding Eye Care Camps:- In the case of A.S Mittal v State of Uttar
Prsdesh [28]public interest litigation brought under article 32 of the constitutions and the
allied negligence on the part of the doctors in a free eye care camp at Khurja. 

Right to Livelihood

In Re Sant Ram, AIR 1960 SC 932 a case which arose before Maneka Gandhi, the Supreme
Court ruled that the right to livelihood would not fall within the expression “life” in Article
21. The Court said curtly:
“The argument that the word “life” in Article 21 of the Constitution includes “livelihood”
has only to be rejected. The question of livelihood has not in terms been dealt with by Article
21.”

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 is case was brought by
pavement dwellers to resist eviction of their habitat by the Bombay Municipal Corporation,
that the right to livelihood is born out of the right to life, as no person can live without the
means of living, that is, the means of livelihood. The Court has observed in this connection:
“….the question which we have to consider is whether the right to life includes the right to
livelihood. We see only one answer to that question, namely, that it does. The sweep of the
right to life conferred by Article 21 is wide and far-reaching. It does not mean, merely that
life cannot be extinguished or taken away as, for example, by the imposition and execution of
the death sentence, except according to procedure established by law. That is but one aspect
of the right to life an equally important facet of that right is the right to livelihood because,
no person can live without the means of living, that is, the means of livelihood.”
If the right to livelihood is not treated as a part and parcel of the constitutional right to life,
the easiest way of depriving a person of his right to life would be to deprive him of his means
of livelihood to the point of abrogation.

In Kirloskar Brothers Ltd. the Supreme Court declared the expression “right to life does
include better standard of living condition in the work place" as fundamental right.
In Sodan Singh v. New Delhi Municipal Committee[xxix], the five judge bench of the
Supreme Court distinguished the concept of life and liberty within Art.21 from the right to
carry on any trade or business, a fundamental right conferred by Art. 19(1)(g) and held the
right to carry on trade or business is not included in the concept of life and personal liberty. 

Right to Education

Article 21A: The Right to Education inserted in constitution via 86th amendment act, 2002.
Article 24: No child below the age of 14 years shall be employed to work in any factory or
mine or engaged in hazardous employment. Article 39 (f): The State shall, in particular,
direct its policy towards securing— (f) that 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. Article
45 : The State shall endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children until
they complete the age of fourteen years. Article 51A(k): who is 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.

Background to RTE

1. The 1986 National Policy of Education DID NOT make the education compulsory.
2. The first official document on the education right of children was Ramamurti Committee
Report in 1990 which reviewed the National Education Policy 1986. This committee
mentioned that not paying attention to the right to education was the most fundamental
problem of our education system. Ramamurti Committee also noted that “the time has
come to recognize “Right to Education’ as a fundamental right of the Indian Citizens.
3. In 1992, India became signatory to the UN Convention on Rights of the Child. Article 28
of this Convention “asks the states to recognize right of education for every child and
make primary education compulsory”. At that time, it was not in line with the
constitution’s provision in article 51(c) which says: State shall endeavor to foster respect
for international law and treaty obligations. (DPSP)
4. In 1993, Supreme Court Gave its landmark judgment in the Unnikrishnan JP vs State of
Andhra Pradesh & Others. In this case, SC held that Education is a Fundamental right
flowing from Article 21.
5. In 1994, The United Front Government set up Saikia Committee to examine the proposal
of making right to free and compulsory education.
6. Tapas Majumdar Committee was set up by the NDA Government in 1999 to look into the
financial implications of operationalising the 83rd Amendment Bill introduced by the
United Front government in 1997, seeking to make the right to free and compulsory
education up to the age of 14 a fundamental right. The 83rd Amendment Bill was renamed
the 93rd Amendment Bill and significant changes were incorporated in it.
7. finally Right to Education Act 2009.

In Mohini Jain v. State of Karnataka as well as Unnikrishnan v. State of A.P., the Supreme
Court observed that a ‘man without education was no better than an animal’, and held that the
right to education was an essential ingredient for a dignified and meaningful life”.

Right to Clean Environment

In M. C. Mehta vs. Union of India 1987 SCR (I) 819 (the Oleum Gas Leak case), the
Supreme Court established a new concept of managerial liability – ‘absolute and non-
delegable’ – for disasters arising from the storage of or use of hazardous materials from their
factories. The enterprise must ensure that no harm results to anyone irrespective of the fact
that it was negligent or not.

In State of Karnataka case,1 the Supreme Court held the right to water is a fundamental right.

Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715

Background : 
Environment - Public interest Litigation(PIL) - Section 63 of the Water Prevention and
Control of Pollution Act 1974 - PIL filled under Article 32 of the Constitution
of India by Vellore Citizens Welfare Forum - Directed against the environmental
degradation 
Issues : 
Whether right to fresh air is a constitutional and a right which is statutory recognized? 
Holding : 
It is the Constitutional and statutory provisions to protect a persons right to fresh air, clean
water and pollution free environment, but the source of the right is the inalienable common
law right of clean environment. Article 21 of the Constitution of India guarantees
protection of life and personal liberty which includes right to fresh air.
1
AIR 1993 SC 1126
Ratio Decidendi: 
The "Polluter Pays" principle as interpreted by this Court means that the absolute liability
for harm to the environment extends not only to compensate the victims of pollution but
also the cost of restoring the environmental degradation. Remediation of the damaged
environment is part of the process of "Sustainable Development" and as such polluter is
liable to pay the cost to the individual sufferers as well as the cost of reversing the
damaged ecology.

Social Justice bench

The Supreme Court’s social justice bench comprising justices Madan B Lokur and UU Lalit
heard seven cases between 2 and 4.15 p.m on Friday, August 28. With the bench likely to
complete one year in December since it was set up by Chief Justice of India (CJI) Justice HL
Dattu to exclusively deal with social justices cases every Friday,

The devadasis case The SL Foundation Through its President, vs UOI was heard for the
third time by the bench. It was brought to the attention of the bench by the petitioner’s
advocate VK Biju that the money meant for rehabilitation of devadasis was being misused,
and that the malaise was prevalent in four States, not just Karnataka.

In Re: Prajwala letter dated 18.2.15 The case was heard for the fourth time on August 28.
The order passed on July 24 can be read here. The Telegraph story on the latest hearing can
be read here. The Prajwala founder Sunita Krishnan told the court that thousands of sex
videos are in circulation on social media and sought interim orders to ensure mandatory
reporting of such cases by the authorities. When she cited section 67A of the Information
Technology Act, the bench made ministry of Information Technology a a respondent in the
case.

In Re: Indian Express Newspaper Report dated 10.4.2013 The report titled ‘Women cops
put minor rape victim in lock-up’ is a case which was heard for the fifth time on August 28.
The bench expressed its complete disappointment with the lack of progress in the case.
Justice Lokur told the counsel for Uttar Pradesh Government, Gaurav Bhatia that the state’s
criminal trial was a joke. The bench asked Bhatia why no witnesses had been examined yet,
although chargesheet has been filed. Justice Lokur asked whether the witnesses were being
threatened and intimidated, because of which no one was coming forward to testify. Saying it
is not a complicated case, Justice Lokur asked how the officials who were suspended, had
rejoined.

Bhatia surprised the court by his statement that the minor girl, who was 11 years old, when
raped, wanted to rest with her mother, and that was why the lock up was used. This provoked
Justice Lokur to ask Bhatia not to justify it, as the officials have been found prima facie
guilty, as shown by the filing of the charge-sheet. Bhatia assured the court that he would
ensure that recording of evidence in the case would begin, before the next hearing. Justice
Lokur directed the state to give wide publicity to the case, by issuing circulars to all the
police stations, so that such incidents are not repeated. This case was last heard on September
5, 2013.

Sanjeeb Panigrahi vs UOI, The bench expressed its surprise that the Central Government
did not give priority to updating a 1999 Act relating to maintenance of parents and senior
citizens. The petition, which was heard for second time on August 28, seeks the
establishment of one old age home in every district across the country with minimum
palliative health care facilities.

All India Kashmiri Samaj vs UOI August 28 was the third time the bench heard this matter.
Adjourned to October 30. This is about the rehabilitation scheme for the J&K Pandits, who
have migrated from the state, so as to facilitate their return.

Re: exploitation of children in the orphanages of Tamil Nadu vs UOI, Justice Lokur
wanted to know why nothing is happening on the ground, although the schemes appear
wonderful. The previous order in the case can be read here. Aparna Bhat is the amicus curiae
in the case. The bench heard this case for sixth time yesterday. It was adjourned again to 30
October. The bench asked about the implementation of its 17th April 2015 order and
expressed its dissatisfaction. The ASG, Tushar Mehta described the Centre’s role in this case
as a night watchman, with states exercising most of the responsibility.

Chief Justice T.S. Thakur has scrapped the social justice bench, which was set up by his
predecessor Justice H.L. Dattu in December, 2014.
Public Interest Litigation

Any public spirited citizen can move/approach the court for the public cause (in the interests
of the public or public welfare) by filing a petition:
1. In Supreme Court under Art.32 of the Constitution;
2. In High Court under Art.226 of the Constitution; and
3. In the Court of Magistrate under Sec.133, Cr. P.C.

Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the
interest of that nebulous entity: the public in general. It relaxes the rule of locus standi.

The seeds of the concept of public interest litigation were initially sown in India by Krishna
Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai (AIR 1976 SC 1455; 1976 (3)
SCC 832) and was initiated in Akhil Bhartya Soshit Karamchari Sangh (Railway vs, Union of
India, wherein an unregistered association of workers was permitted to institute a writ
petition under Art.32 of the Constitution for the redressal of common grievances. Krishna
lyer J., enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer
Corporation Kamgar vs. Union of India (AIR 1981 SC 149; 1981 (2) SCR 52) and the ideal
of ‘Public Interest Litigation’ was blossomed in S.P. Gupta and others vs. Union of India,
(AIR 1982 SC 149).

Social justice through the welfare legislation:

The welfare legislations enacted during the post-independence era. The establishment of
Human Rights Commission, Women's Commission, Family Courts, Industrial tribunals,
Administrative Tribunals, Ombudsman, Panchayati Raj, and Lok Adalats etc are only a few
illustrations to suggest that the sole objective is to make justice available to a common man
and ameliorate the sufferings of masses including women, children and other neglected and
weaker sections of the society. The laws relating to consumers protection, dowry prohibition,
abolition of bonded labour, control of environmental pollution etc. have been enacted to
provide social justice.
1. The Civil Rights Act, 1955
2. The immoral Traffic (Prevention) Act, 1956
3. The Probation of Offenders Act, 1958
4. The Medical Termination of Pregnancy Act, 1971
5. The Equal Remuneration Act, 1976;
6. The Family Courts Act, 1984;
7. The Child Labour (Prohibition & Regulation) Act, 1986,
8. The Legal Services Authorities Act, 1987
9. The Environment (Protection) Act, 1986
10. Juvenile Justice (Care and Protection of Children) Act, 2000
11. The SC & ST (Prevention of Atrocities) Act, 1989
12. The Child Marriage Restraint (Amendment) Act, 1978
13. The National Commission for Women Act, 1990
14. The Public Liability Insurance Rights Act, 1991
15. The Protection of Human Rights Act, 1993
16. Pre-Natal Diagnostic Techniques Act, 1994
17. The (Extension to Scheduled Areas) Act, 1996
These socio-economic measures are meant to protect the dignity of human personality and to
ensure prosperity of people as also the State.

John Rawls' A Theory of Justice – an introduction

The Theory of Justice as propounded by John Rawls in his book ‘A Theory of Justice’ (1971)
presented a conception of justice which generalised as to what is justice and tied to carry it to
higher level of abstraction rather than in defining in concrete form.

According to John Rawls, there are some principles of justice which are running as an
undercurrent in the building of a society which is well organised and working in a particular
fashion. These are such principles which would be adopted by ‘free and rational’ persons to
further their own interest in an initial position of equality. This is ‘the equality’ which is
fundamental to their association. And it is this principle which regulates their further
agreements. By agreements here, he meant the laws which will be passed at later stages will
be working on this very principle. So this is what he regarded as ‘justice as fairness’.

He explains as to how by logical ordering of principles of justice, it is possible to answer

questions like how should society be structured, how should basic rights and duties be
assigned to individuals, and how should social and economic advantages be distributed to all
members of society. He was primarily inclined towards defining the principles of justice
which would regulate an ideal society. He completely ignored the idea of how justice may be
restored in an unjust society.
Other Cases

In Consumer Education Research Centre v. Union of India; “The Preamble and Article 38
of the Constitution of India, the supreme law, envisions social justice as its arch to ensure life
to be meaningful and livable with human dignity. Social justice, ..”

Naz Foundation v. Govt. of NCT of Delhi– 

This case was filed to repeal Section 377 of the Indian penal Code. It was led by the Naz
Foundation (India) Trust, a non-governmental organization, which filed a lawsuit in the Delhi
High Court in 2001, seeking legalisation of homosexual intercourse between consenting
adults In 2003, the Delhi High Court refused to consider a petition regarding the legality of
the law, saying that the petitioners had no locus standi in the matter. Naz Foundation
appealed to the Supreme Court of India against the decision of the High Court to dismiss the
petition on technical grounds. The Supreme Court decided that Naz Foundation had the
standing to file a public interest lawsuit in this case, and sent the case back to the Delhi High
Court to reconsider it on the merits. The Court located the rights to dignity and privacy within
the right to life and liberty guaranteed by Article 21 of the Constitution, and held that
criminalization of consensual gay sex violated these rights.