INDIA IS A WELFARE STATE

India is a welfare state. The fact that the preamble of the Constitution itself
envisages India to be a ‘socialist’ state bears enough evidence for this.

What do we understand by the word socialism? Socialism in India is not

understood in the Russian context where all resources are owned by the state and
the state secures the welfare of all. Socialism, as envisioned in the Indian
Constitution, aims at elimination of inequality in income, status and standards of
life. In many decisions, courts have interpreted ‘socialism’ to mean a kind of social
democracy which comes closer to the conception of a social welfare state as seen
in the Constitutions of France and Germany. The Constitution itself, however, does
not define the term, but merely implies the above meaning through the rest of its
provisions.

In exercise of socialism, the Constitution provides what are called the Directive
Principles of State Policy in Part four. These principles are not justiciable in a court
of law, meaning that one cannot file a proceeding because a Directive Principle has
not been enacted or been denied. However, this does not render them redundant as
they recognize the long-term but fundamental goals of a welfare state which help
in defining the path of development the country is to follow, and it is the duty of
the State to apply them while making laws. By their very name, they are
“Directive” principles, principles which help the government direct their functions
in order to make India what the Constitution-makers wanted it to be. Further,
Article 38 provides a mandate for the State to ‘secure a social order for the
promotion of welfare of the people’.

Article 39 lays down six Directive Principles. Some of these are to ensure means of
equal livelihood to men and women, ownership and control of resources be
distributed to serve the best interests of the people, there is no concentration of
wealth, there is equal pay for equal work of men and women, etc.
Article 39A, inserted by the Constitution (Forty-second Amendment) Act of 1976,
imposes a mandate on the state to provide equal justice and free legal aid. This
particular provision shall be the focus of this project, as the questions to which we
seek answers are:

Whether free legal aid is meant to achieve speedy and equal justice.
Does it achieve this aim.
 Position of Interstate Trade in India

“Democracy is the art and science of mobilising the entire physical, economic and
spiritual resources of various sections of the people in the service of the common
good of all.”
To an extent the Article 301 of the Indian Constitution could be said to the derived
or influenced from such a philosophy with the objective to protect the National
integrity and unity with the help of hassle free flow of trade throughout the
country. An intention to unify different fields and different regions with the help of
this freedom guaranteed in Art. 301.

Even then for all practical purposes this freedom could not have remained absolute
in order to ensure that a privatized market Grab economy does not further exploit
the already starving population of India. Therefore this freedom was made subject
to the other provisions of this Part (Part XIII). But as the researcher proceeds with
the analysis of the position of inter-state trade it becomes clear that these provision
which act as restrictions on this freedom bestowed by Article 301 is been severely
hinders it . And therefore the Concept of Free Trade as envisaged by the
constitution makers has remained a concept only with the amount of barriers and
complications involved in interstate trade today. The free flow of trade and
commerce are sine qua for the economic enhancement domestically as well as
internationally has not given to the Indian Markets. The European Union is an
amazing example of such a trade union which has opened up trade barriers among
the countries of the union and has shown dramatic advancement in the field of
trade and commerce. It is time for India to overhaul its current taxing system and
central as well as state policy towards free trade.

Thus in this project the researcher will analyse the case laws which are responsible
for the current position of the interstate trade and also the effect of Part XIII on
them to determine how effective the provisions have been to strike a balance
between the economic development and advancement of the country on one hand
and the protection of the majority who were likely to the exploited and starved if
the free market was allowed to thrive at the whims of capitalists.
An Analysis Of The Provisions And The Case Laws
The Constitution Makers have borrowed the concept of freedom of trade from the
Australian constitution (Section 92) but the Indian version has a couple of changes
in the scope of its application, and they are

That the freedom guaranteed is not limited to among the states but ‘throughout the
territory of India’ and,
The privilege of trade being free is not qualified by the adverb ‘absolutely’ as in
the Australian constitution.
And the reasons for these changes in the adaptation of this Article, from the
Australian constitution, lies in the rest of the Articles of the Part XIII starting from
Article 302 till 307. The Freedom is not absolute as the rest of the provisions
impose several restrictions and exceptions to this freedom. Another very important
aspect of the Part XIII of the Constitution is that it is not subject to any other part
or provision of this constitution.

In the simplest sense any kind of tax that is levied on any particular activity which
involves interstate transaction can be taken to be a restriction on the freedom of
trade. But as taxes are also necessary for the functioning of the Centre and the
State all of them cannot be treated as restrictions violating the Article 301. This
question was first brought up in the Atiabari case in which the Apex court held that
tax laws are not outside the scope of ‘the Freedom’. And therefore the Assam State
Legislature had to amend the provision as to meet the requirements of the
exception in Article 304(b) so that the tax that it imposed did not amount to a
direct and immediate impact of the movement of the goods. This case has also
gone into the historical background of the Making of this constitution in which it
discusses that the makers of the Constitution were fully aware of the fact that
economic unity was an absolute prerequisite for the stability and progress of the
federal polity.

The Indian Constitution Guarantees Justice to All

Man is not made for law, but the law is for man. It is a regulator of human conduct
and No law works smoothly unless the interaction between the two is voluntary.
An act is justified by law, only if it is warranted, validated and made blameless by
law. The Indian Constitution guarantees justice to all, All Indian citizens are
guaranteed equal right to life and personal liberty. The rule of law envisages that
all men are equal before law, have equal rights but unfortunately cannot enjoy the
rights equally as enforcement of the rights has to be through courts and the judicial
procedure especially the criminal system is very complex, costly and dilatory
thereby putting the common man at a distance.

The Constitution of india enjoins the state to secure social, economic and political
justice to all its citizens, making the constitutional mandate for speedy justice
inescapable through article 14 it guarantees equality before the law and the equal
protection of the laws and article 39A of the Constitution mandates the State to
secure the operation of the legal system in such a way that it promotes justice on a
basis of equal opportunity and ensures that the same is not denied to any citizen by
reason of economic or other disabilities further equal opportunity must be afforded
for access to justice as its not sufficient that the law treats all persons equally,
irrespective of the prevalent inequalities but the law must function in such a way
that all the people have access to justice in spite of economic disparities.
The Supreme Court has on various events, in its judgements has made it clear that
there can be no delay in trial, as that itself constitutes denial of justice. moreover
directive principle of state policy directs the state to strive for reducing inequalities
amongst groups of people in different areas under article 39A of the constitution of
india now while interpreting this provision the supreme court held that, social
justice includes ‘legal justice’ which means that the system of administration must
provide a cheap and expeditious instrument for realization of justice.

The system of law which presently operates in India is largely based on English
common law because of the long period of British colonial influence during the
period of the British Raj. Much of contemporary Indian law shows substantial
European and American influence and various legislations which were firstly
introduced by the British are still in effect in their modified forms today. In India
criminal law is enforced by the state, unlike the civil law which may be enforced
by private parties. It reflects the social ambitions and norms of the society and
generally refers to body of rules that defines the conduct which is prohibited by the
state because it is held to threaten, harm or otherwise endanger the safety and
welfare of the public, and sets out the punishment to be imposed on those who
breach the said law.
Like every developed criminal legal system, India too has a reputation for long
winding procedures and an elaborate system of trial and investigation exists our
criminal justice system while the rationale is to ensure that the complainant has the
satisfaction of the knowledge and erudition of the best legal minds and the offender
does not go unpunished the price for this turns out to be the delay in finality,
outcome of proceedings. There have been several attempts to simplify the
procedure but the sheer number of cases seems to overwhelm the system and delay
in disposal of cases in criminal law courts has really defeated the purpose for
which the people approach the courts for remedy.
It is aptly said that justice delayed is justice denied therefore the need has arisen to
find out an alternative to render justice to the common man who wants his
grievances redressed through legal and faster means which proves also economical
when compared to time consuming and expensive traditional court litigation
process. In the background of this and the fact that India is presently at a critical
stage of its development one needs to rethink about the dispute resolution
mechanisms of the past.

UNIFORM CIVIL CODE

Article 44 of the Indian Constitution states that “the State shall endeavour to secure
for the citizens a uniform civil code (UCC) throughout the territory of India.” The
desirability of a uniform civil code is consistent with human rights and the
principles of equality, fairness and justice.
After the revocation of Article 370, the central family law Acts were extended to
Jammu and Kashmir. Although, this is another step towards implementing UCC
throughout India, still a long distance is to be covered in this pursuit.

What is UCC?
The Uniform Civil Code (UCC) calls for the formulation of one law for India,
which would be applicable to all religious communities in matters such as
marriage, divorce, inheritance, adoption.
The code comes under Article 44 of the Constitution, which lays down that the
state shall endeavour to secure a Uniform Civil Code for the citizens throughout
the territory of India.
Background of Uniform Civil Code
The origin of the UCC dates back to colonial India when the British government
submitted its report in 1835 stressing the need for uniformity in the codification of
Indian law relating to crimes, evidence, and contracts, specifically recommending
that personal laws of Hindus and Muslims be kept outside such codification.
Increase in legislation dealing with personal issues in the far end of the British rule
forced the government to form the B N Rau Committee to codify Hindu law in
1941. Based on these recommendations, a bill was then adopted in 1956 as the
Hindu Succession Act to amend and codify the law relating to intestate or unwilled
succession, among Hindus, Buddhists, Jains, and Sikhs.
However, there were separate personal laws for muslim, chirstian and Parsis.
In order to bring uniformity, the courts have often said in their judgements that the
government should move towards a uniform civil code.
The judgement in the Shah Bano case is well known, but the courts have made the
same point in several other major judgements.
By arguing that practices such as triple talaq and polygamy impact adversely on
the right of women to a life of dignity, the Centre has raised the question whether
constitutional protection given to religious practices should extend even to those
that are not in compliance with fundamental rights.
UCC and Implications
Protection to Vulnerable Section of Society: The UCC aims to provide protection
to vulnerable sections as envisaged by Ambedkar including women and religious
minorities, while also promoting nationalistic fervour through unity.
Simplification of Laws: The code will simplify the complex laws around marriage
ceremonies, inheritance, succession, adoptions making them one for all. The same
civil law will then be applicable to all citizens irrespective of their faith.
When enacted the code will work to simplify laws that are segregated at present on
the basis of religious beliefs like the Hindu code bill, Sharia law, and others.
Adhering to Ideal of Secularism: Secularism is the objective enshrined in the
Preamble, a secular republic needs a common law for all citizens rather than
differentiated rules based on religious practices.
Gender Justice: India has separate sets of personal laws for each religion governing
marriages, divorce, succession, adoption and maintenance. However, the rights of
women are usually limited under religious law, be it Hindu or Muslim. The
practice of triple talaq is a classic example.