Title :- Concept of Social Justice

Author :- Rajat Prakash

INTRODUCTION
The constitution of India was adopted on November 26, 1949. Some provision of the
constitution came into force on same day but the remaining provisions of the constitution
came into force on January 26, 1950. This day is referred to the constitution as the “date of its
commencement”, and celebrated as the Republic Day. The Indian Constitution is unique in its
contents and spirit. Through borrowed from almost every constitution of the world, the
constitution of India has several salient features that distinguish it from the constitutions of
other countries.

Social justice denotes the equal treatment of all citizens without any social distinction based
on caste, colour, race, religion, sex and so on. It means absence of privileges being extended
to any particular section of the society, and improvement in the conditions of backward
classes (SCs, STs, and OBCs) and women. Social Justice is the foundation stone of Indian
Constitution. Indian Constitution makers were well known to the use and minimality of
various principles of justice. They wanted to search such form of justice which could fulfill
the expectations of whole revolution. Pt. Jawahar Lal Nehru put an idea before the
Constituent Assembly

“First work of this assembly is to make India independent by a new constitution through
which starving people will get complete meal and cloths, and each Indian will get best option
that he can progress himself.”

Social justice found useful for everyone in its kind and flexible form. Although social justice
is not defined anywhere in the constitution but it is an ideal element of feeling which is a goal
of constitution. Feeling of social justice is a form of relative concept which is changeable by
the time, circumstances, culture and ambitions of the people. Social inequalities of India
expect solution equally. Under Indian Constitution the use of social justice is accepted in
wider sense which includes social and economical justice both. According to Chief Justice
Gajendragadkar.

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“In this sense social justice holds the aims of equal opportunity to every citizen in the matter
of social & economical activities and to prevent inequalities”.

The Constitution of India has solemnly promised to all its citizens justices-social, economic
and political; liberty of thought expression, belief, faith and worship; equality of status and of
opportunity; and to promote among the all fraternity assuring the dignity of the individual and
the unity of the nation. The Constitution has attempted to attune the apparently conflicting
claims of socio-economic justice and of individual liberty and fundamental rights by putting
some relevant provisions.

The social justice scenario is to be investigated in the context of two streams of entitlements:
(a) sustainable livelihood, which means access to adequate means of living, such as shelter,
clothing, food, access to developmental means, employment; education, health, and
resources; (b) social and political participation (enabling or empowering means), which is
built on the guarantee of fundamental rights, and promotion and empowerment of the right to
participation in the government, and access to all available means of justice, and on the basis
of which “justice as a political programme” becomes a viable reality. We require therefore a
study based on select illustrations of various issues relating to government policies on topics
such as: (a) the right to food and water; (b) housing, which includes resettlement and
rehabilitation; (c) access to education, (d) access to provisions of health and healthcare, (e)
right to work, and (f) access to information and the right to communication. In short, one of
the important ways in which the inquiry will proceed will be through taking stock of various
forms that have occasioned the articulation of ideas of social justice. Governmental justice
consists of various welfare schemes, law, legal literacy, administrative forms of arbitration
such as tribunals, boards, courts, public interest litigation, new legal education, plus the
constitutional idea of protection of weaker sections of the society and introduction of positive
discrimination.
Electronic copy available at: http://ssrn.com/abstract=2589869
Challenges in Social Justice

After 40 years of independence, 8 Five Year Plans, hundreds of laws leading to a veritable
forest of rules offering a variety of special facilities to the underprivileged ranging from
scheduled castes and tribes to women, in matters of education, employment, housing, etc.
social justice is far from a reality. 53% of over 965 million people are under the poverty line
i.e. unable to spend even a dollar a day on bare necessities. A mere16% of households enjoy
the „luxury‟ of electricity, drinking water and toilet facilities. This percentage is 3.9% if only
rural households are taken into consideration. 71% of our women are illiterate. Barring a few
states like Kerala and Tamil Nadu, rural health care is a sham and almost non-existent. Then
there is the problem of the millions of the educated unemployed. Though in any society some
form of inequality is unavoidable, the persistence of large-scale economic disparities and the
undignified living conditions of millions of Indians is a reality that cannot be overlooked. The
satisfaction of a set of basic needs must have the highest priority, for, without food, shelter,
clothing, health care and primary education a person does not become a human being. The
widespread caste prejudices and the continuing discrimination against the lower castes are a
threat to social stability and peace. The social and educational backwardness of a vast section
of the population inhibits its participation in the process of social and economic development,
not to mention human development. Hence, the reduction of discriminatory social practices is
an important part of the movement for social justice. Women suffer from historical, social
and economic disadvantages. Even among the other categories of deprived communities, they
are the most deprived group. A liberal society must attend to demands of gender justice
seriously.

The conception of social justice also encompasses firm commitment to the protection of
human rights and civil liberties. Disabilities and problems of other groups like the physically
disabled, child labour, tribals and those affected by environmental pollution also form the
agenda of social justice. And these are India‟s most critical problems. These are at the root of
much of the political unrest, social and ethnic conflicts, and the growth of collective violence
and the weakness of democratic structures in our country.

The caste institution in our society is very effective which is not the phenomenon in western
countries. In such circumstances, can we reap the fruits of the system which we adopted? The
main objectives of social justice are compulsory and equal education, casteless society and
employment to each. Economic exploitation is also a big factor and all these do not allow the
true realization of democracy. When India is passing through social and caste discrimination,
economic crisis, unemployment, communalism and lack of basic needs, a party of substance
and difference is needed which acknowledges and addresses the problems of social and
economic deprivation.

Meaning of „Justice‟ doesn‟t need to be further defined and it is committed to give justice to
all those who have been or being denied.

Social policy: Politics is reflection of the society. If casteism, regionalism and communalism
are part of society, they will go in to politics also. Those who are born and die in
discriminatory environment, how is it possible for them to have different mindset? During
elections, this mindset takes precedence over development, science, honesty, integrity etc.
Though political parties aim to capture political power but they are equally responsible to
fight out social discrimination while making it important agenda. Till ideal situation is
attained, it will not be possible to capture political power through agenda like development,
education, health etc. Recently French Government banned students from wearing religious
symbols in schools and similarly we also have to take hard decisions to do away with
vestigial institutions like caste. Due to increasing consciousness among dalits and backwards,
they are also striving to have participation in political power and it is leading to a situation
where elections are being fought more between the castes than parties. Earlier, dominant
castes used to fight elections mainly and now backwards have also started contesting and a
day will come erstwhile dominant castes will be out of power owing to their smaller number.
For all of us it is essential to remove rotten values and social system.

Economic policy: The distribution of income among individuals or households at the local or
national level, based on classifications such as socio-economic status, profession, gender,
location, and income percentiles, is the most widely used measure of the degree of equality or
inequality existing in a society. For most contemporary societies, income distribution remains
the most legitimate indicator of the overall levels of equality and inequality. Gap between
rich and poor is wider in our country. Besides historical reason, there are many reasons which
are producing poverty. Governments are morally bound to provide education, health,
employment and other basic needs. Due to globalization and privatization, it is now being
debated that the Governments are not suppose to do business and provide employment but are
for maintenance of law and order and foreign policy etc.
Where Does The Solution Lie?

The solution to social injustice lies within us only. We should be aware of the expressions the
poor, the backwards, social justice which are being used to undermine standards, to flout
norms and to put institutions to work. Despite the well intentioned commitment of ensuring
social justice through equalization or protective discrimination policy, the governmental
efforts have caused some tension in the society. In the name of social justice even such
activities are performed which have nothing to do with social justice. The need of hour is to
ensure the proper and balanced implementation of policies so as to make social justice an
effective vehicle of social progress. While Liberalism puts freedom first it is conscious of the
fact that such freedom is hollow unless it is accompanied by a sense of security and equality.
A liberal social policy should aim at providing the most disadvantaged with access to
opportunities and, at the same time create a social net that strengthens their ability to cope
with crises. Successive governments have attempted to meet the basic needs of people by
spending large sums of money on various subsidies, a variety of employment generation and
poverty alleviation schemes. While these schemes have created a huge distributive
bureaucracy only a small percentage of the sums sanctioned actually reach the intended
recipient groups. They have bred corruption on a massive scale. A phenomenal amount of
resources are wasted, destabilising public finances, harming economic development and
burdening future generations. Alongside of measures to liberalise the economy which would
create new employment opportunities, there is need to encourage entrepreneurship and self-
employment particularly in the light of fast developing technology. This would spur an
upward movement of people and each entrepreneur can provide work for one or more
persons. Jobs and self employment opportunities have to be encouraged in sectors like
agriculture, plantations, and in a variety of infrastructural activities, etc. Employing
techniques that involve a judicial mix of machines and manual labour, the country‟s
enormous economic potential can be exploited to the benefit of the less fortunate sections of
the population. Without administrative and political decentralisation the goals of social
justice may not be accomplished. Letting people decide what their development needs are
will not only generate social and political awareness among them but also instill a sense of
self-respect and build strong leadership at the local and community levels.
In D. S. Nakara v. Union of India 1, the Supreme Court has held that the principal aim of a
socialist state is to eliminate inequality in income, status and standards of life. The basic
frame work of socialism is to provide a proper standard of life to the people, especially,
security from cradle to grave. Amongst there, it envisaged economic equality and equitable
distribution of income. This is a blend of Marxism & Gandhism, leaning heavily on Gandhian
socialism. From a wholly feudal exploited slave society to a vibrant, throbbing socialist
welfare society reveals a long march, but, during this journey, every state action, whenever
taken, must be so directed and interpreted so as to take the society one step towards the goal.

In Excel Wear v Union of India2, the Supreme Court held that the addition of the word
„socialist‟ might enable the courts to learn more in favour of nationalisation and state
ownership of an industry. But, so long as private ownership of industries is recognised which
governs an overwhelming large principles of socialism and social justice can not be pushed to
such an extent so as to ignore completely, or to a very large extant, the interest of another
section of the public, namely the private owners of the undertaking.

The term „justice‟ in the Preamble embraces three distinct forms- social, economic and
political, secured through various provisions of Fundamental Rights and Directive Principles.
Social justice denotes the equal treatment of all citizens without any social distinction based
on caste, colour, race, religion, sex and so on. It means absence of privileges being extended
to any particular section of the society, and improvement in the conditions of backward
classes (SCs, STs, and OBCs) and women. Economic justice denotes on the non-
discrimination between people on the basis of economic factors. It involves the elimination of
glaring in equalities in wealth, income and property. A combination of social justice and
economic justice denotes what is known as „distributive justice‟. Political justice implies that
all citizens should have equal political rights, equal voice in the government. The ideal of
justice- social, economic and political- has been taken from the Russian Revaluation (1917).

The term ‟equality‟ means the absence of special privileges to any section of the society, and
provision of adequate opportunities for all individuals without any discrimination. The
Preamble secures at all citizens of India equality of status an opportunity. This provision
embraces three dimensions of equality- civic, political and economic.3

1
(1983)1 SCC305
2
AIR 1979 SC25
3
Laxmikanath, M., Indian polity (2008) p. 29
A Hayekian Theory of Social Justice

As Hayek understands the term, “social justice” usually refers to the intentional doling out of
economic rewards by the government, “some pattern of remuneration based on the
assessment of the performance or the needs of different individuals or groups by an authority
possessing the power to enforce it.” His basic contention is that any such conception of
justice must be “wholly devoid of meaning or content” within the context of a spontaneous
market order in which the aggregate distribution of resources arises as the indirect
consequence of economic transactions, the remote effects of which no one specifically
intends or foresees. Having stated this claim, Hayek readily acknowledges that it “is one
which by its very nature cannot be proved. A negative assertion never can.” Instead, he
concludes, this assertion “can only be issued as a challenge which will make it necessary for
others to reflect on the meaning of the words they use.” For the purpose of argument, I will
allow that the body of Hayek‟s work contains deep insights about how real-world productive
processes function as a vehicle for the coordination of dispersed and tacitly held knowledge,
which is now widely recognized as his most important contribution to social theory.
Moreover, given that the market process performs this crucial epistemological function,
Hayek is correct that serious efforts to implement comprehensive economic planning by a
central authority would create the sorts of negative economic and political consequences that
he envisions, because they would distort the efficient functioning of the price system as a
mechanism for the coordination of supply and demand.

Hayek‟s critique of social justice nonetheless fails. Even granting his empirical assumptions
about the workings of the market process, one can still assess the distributive results of that
process in terms of justice or fairness. From this perspective, the problem of economic justice
is not really a question of whether social institutions should “intervene” in the market
process. Instead, as we shall see, Hayek himself concedes at various points that the
institutional framework within which the market functions necessarily constrains its
outcomes in more or less predicable ways. The relevant questions thus become not whether,
but when and how such constraints ought to shape market outcomes consistent with our ideal
of social justice, while at the same time preserving the competing values of individual liberty
and economic efficiency. If this conclusion is correct, then it is possible to show that Hayek‟s
argument fails as a matter of principle, without resort to contestable empirical claims about
the nature of economic processes.
Given the intellectual climate during which his views about social justice were formed, it is
perhaps understandable that Hayek‟s overriding concern was to shore up the moral and
theoretical foundations of the market process. Unfortunately, one of the unintended
consequences of this preoccupation, as I have attempted to show in this essay, is a tangle of
contradictory assertions about the nature of justice that, taken together, are less than
convincing. Many of Hayek‟s academic critics have been content to leave matters where they
stand and to dismiss his excursions into political philosophy as little more than an exercise in
ideological rhetoric. In my view, however, it would be unfair to attribute to a scholar of
Hayek‟s stature a blatantly ideological position, at least where it is possible to reconstruct a
more plausible alternative. We thus pay tribute to his legacy not by ignoring his
inconsistencies, but by picking up the various threads of his thought and weaving them into a
more coherent whole. It is in this sense, I think, that we can intelligibly speak of a Hayekian
theory of social justice.

For if it is a legitimate state function to impose taxes on those with excess means in order to
provide for public goods that the market cannot efficiently deliver and to provide for the
basic needs of those who are unable to fend for themselves in the market, which Hayek freely
allows, then we may consistently embrace a morally defensible principle of distributive
justice, namely the satisfaction of the material conditions necessary for the meaningful
exercise of individual liberty. Moreover, if this can be accomplished without corrupting the
epistemological function of a market driven price mechanism or degenerating into a full-
fledged command economy, which Hayek also allows, then a moderate welfare state
animated by a reasonably constrained conception of social justice is entirely compatible with
the operation of a spontaneous market order.

The mere fact that these questions cannot be answered with mathematical certainty, or
pursued to the exclusion of other important political and moral values, does not mean that
their pursuit as social goals is either incoherent or disastrous.
Constitutional Emphasis on Social Justice

Author Granville Austin, in his book, “The Indian Constitution-Cornerstone of a Nation”

gives a down-to-earth account of the contemporaneous history of framing of the Directive
Principles and says that the “Directive Principles of State Policy set forth the humanitarian
and socialist precepts that were, and are, the aims of the Indian social revolution.” The
Directive Principles serve as the guide post pointing to law the direction that it should take.
Art. 37 states that “the provisions contained in this Part shall not be enforceable by any Court,
but the principles laid down are nevertheless fundamental in the governance of the country
and it shall be the duty of the State to apply these principles in making laws”. It leaves no
room for doubt that the legislative action should be in the direction of social justice. In
Workmen of Meenakshi Mills Ltd. v Meenakshi Mills Ltd.4 the Apex Court observed that the
Preamble to the Constitution declares the solemn resolve of the people of India to secure to
all the citizens justice-social, economic and political.

After our independence a significant change has occurred in the role of judicial process in our
Society. Judicial activism figures prominently in the contemporary India with active
assistance of social activists and public interest litigators for vindication of the governmental
commitment to welfare and social justice. One of the meanings of judicial activism is that the
function of the court is not merely to interpret the law but to make it imaginatively sharing
the passion of the Constitution for social justice.

The Supreme Court held in Consumer Education & Research Centre v Union of India5 that
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 liveable with human dignity. In re The
Kerala Education Bill, 195736, the Supreme Court advocated a harmonious construction of
the Fundamental Rights and the Directive Principles. The Supreme Court speaking through,
JusticeO. Chinnappa Reddy ruled in Atam Prakash v State of Haryana and Ors 6“The
Preamble embodies and expresses the hopes and aspirations of the people. The Directive
Principles set out proximate goals. When we go about the task of examining statutes against
the Constitution, it is through these glasses that we must look, 'distant vision' or 'near vision'.
The Constitution being sui generis, where constitutional issues are under consideration,

4
[1992] 3 SCR 33
5
[1995] 3 SCC 42
6
AIR 1986 SC 859
narrow interpretative rules which may have relevance when legislative enactments are
interpreted maybe misplaced.

Originally the Preamble to the Constitution proclaimed the resolution of the people of India
to constitute India into 'a Sovereign Democratic Republic' and, set forth 'Justice, Liberty,
Equality and Fraternity', the very rights mentioned in the French Declarations of the Rights of
Man as ourhopes and aspirations. Art. 23 and Art. 24 mandates that no child below the age of
14 may be employed in any factory

or mine or engaged in any other hazardous employment. These two Articles recently came up
for construction before this Court in People's Union for Democratic Rights v. Union of India7.
Article 38 imposes obligation on the State, albeit unenforceable in a Court of law, to "strive
to promote the welfare of the People by securing and protecting as effectively as it may a
social order in which social justice shall inform all the institutions of the national life"

In the year of 2001 Oriental Insurance Co. Ltd. v Hansrajbai V. Kodala the Apex Court held
that "The object is to expeditiously extend social justice to the needy victims of accidents
curtailing delay - If still the question of determining compensation of fault liability is kept
alive, it would result in additional litigation and complications in case claimants fail to
establish liability of defendants - Wherever the Legislature wanted to provide additional
compensation, it has done so specifically."

The Apex Court in Ashok Kumar Gupta v State of U.P.8, held that the term Social Justice is a
Fundamental Rights. In Ajaib Singh v Sirhind Cooperative Marketing-cum-Processing
Service Society Ltd.9, Court observed that in dealing with industrial dispute the Courts should
keep in mind the Doctrine of Social Justice. Supreme Court in Municipal Corporation of
Delhi v Female Workers (Muster Roll)10, the provision entitling maternity leave under the
Maternity Benefit Act, 1961, even to women engaged on casual basis or on muster roll basis
on daily wages and not only to those in regular employment are in consonance with the
doctrine of social justice and any contention against it is contrary.

7
AIR 1982 SC 1473
8
(1997)5 SCC 201 (Para 26)
9
(1999) 6 SCC 82 (Para 5).
10
(2000) 3 SCC 224 (paras 32 and 33) : AIR 2000 SC 1274
The Supreme Court has firmly ruled in Balbir Kaur v Steel Authority of India 11 that "the
concept of social justice is the yardstick to the justice administration system or the legal
justice and it would be an obligation for the law Courts to apply the law depending upon the
situation in a manner whichever is beneficial for the society" as the respondent Steel
Authority of India was directed to provide compassionate employment to the appellant.

In Consumer Education & Research Centre vs Union Of India & Others 12 , it was held by the
honourable supreme court of India that the jurisprudence of personhood or philosophy of the
right to life envisaged under Article 21, enlarges its sweep to encompass human personality
in its full blossom with invigorated health which is a wealth to the workman to can his
livelihood to sustain the dignity of person and to live a life with dignity and equality. The
expression 'life' assured in Art.21 of the Constitution does not connote mere animal existence
or continued drudgery through life. It has a much wider meaning which includes right to
livelihood, better standard of life, hygienic conditions in work place and leisure.

11
(2000) 6 SCC 493
12
(1995) 3 SCC 42
Conclusion

From the foregoing discussion I may conclude that the application of social justice requires a
geographical, sociological, political and cultural framework within which relations between
individuals and groups can be understood, assessed, and characterized as just or unjust. At the
same time, there is clearly a universal dimension to social justice, with humanity as the
common factor. To support the concept of social justice is to argue for a reconciliation of
these priorities within the context of a broader social perspective in which individuals
endowed with rights and freedoms operate within the framework of the duties and
responsibilities attached to living in society. Unless there is justice, liberty is not meaningless,
nor would liberty survive without justice. Justice and liberty would secure equality. Also
justice and liberty in their interplay would express themselves into “equality”. “Fraternity”
would be merely a nightmare or only wishful thinking but for justice, liberty and equality.
The Executive as well as the Legislative organ of our State still failed to show their
discernible concern to evolve a variable legal system which is a sine qua non for achieving
social justice.

Therefore there is now a strong need in India to have a co-ordination between the Executive
and judicial organs of the State. Because there is no dearth of social legislation in India. What
is happening in the case of most of the social reform Legislations in India seems to this
author that whenever there appears heat on any matters in our society, the legislature passes a
law on it; but after passing of the law for want of implementation the people especially the
masses, never see the light from that heat. So we need to develop a viable judicial system by
changing our existing procedural law and taking necessary steps for proper implementation of
laws including timely filling up of vacancies of the posts of judges in all courts. Law alone or
the court alone cannot bring social justice. The development of delivery system of justice i.e.
the judicial system, is partand parcel of the programme of social justice which depends very
much on correlation and coordination among the three organs on the State because To walk
alone is to work in vain.

Despite the judicial romantics in eighties in India through PIL in the last decade the pursuit of
social justice it may be said that the courts cannot do it alone. The implementation of
progressive values requires return to instrumental thinking and reutilization of institutions
and programmes. But this task cannot be placed under the exclusive option of some
progressive activists? Judges to implement basic values in the society .
Unless the spirit of the age inclines toward progressive values, sooner or later those values
will be discarded by the judiciary also and this is discernible in the beginning of nineties. The
judiciary can supply powerful impetus to broader policies for social justice as the relationship
of courts and other institutions a partnership confining instrumental rationality. The twenty
first century will perhaps. Answer the question whether our society is ready to reject its
present anti institutional episode and put new confidence in institutions for social justice
other than the courts.