RIGHT TO SOCIAL JUSTICE

Somnath De*

INTRODUCTION
Long years ago we made a tryst with destiny and now the time come when we shall redeem our
pledge, not wholly or in full measure, but very substantially. At the stroke of the midnight night
hour, while the world sleeps, India will awake to life and freedom. The Members of the
Constituent Assembly were concerned about the enormity of the problems faced by the nascent
republic that after two centuries of economic and social exploitation and two thousand years of
intellectual black-out toddled to freedom; and accordingly fashioned a Constitution the character
of which is reflected in the Preamble.
Now the question what is justice? Is it the quality of being just; righteousness, equitableness, or
morality to uphold the justice for a cause? Or is it the rightfulness or lawfulness to a claim or title
or entitlement on some ground or reason? Is it possible for a society in the present scenario to be
just? In simple word Justice means harmonization of interest between the individuals and groups
on the one hand and interest of the community on the other. Egalitarian liberals believe that there
are some circumstances under which such a society could fulfill the requirements of social
justice. Rawls theory of justice endorses the same viewpoint and shows how with the help of
difference principle the basic structure of society could be arranged to meet the requirements of
social justice. A society, which protects the rights and liberties of people and provides all the
economic and social advantages to the greatest benefit of the least advantaged sections in the
society, could be considered just.1 Although justice as fairness is embodied in entering into a
social contract which is the beginning of one of the most general of all choices, which rational
individuals collectively makes. But in reality social contract is entered upon by individuals with
differential capabilities, conflicts and rights. This social contract, according to Rawls is entered
under the veil of ignorance i.e. people are unaware of their place, class etc in society that
ultimately defines their roles, basic rights and duties.
Social Justice is the recognition or greater good to a larger number without deprivation or accrual
of legal rights. If such a thing can be done, then social justice must prevail over any technical
rule. The concept of social justice is central and integral to the Constitution and it is assumed to
be to be a basic structure of the constitution which cannot be whittled down, altered or done
away with in view of the Doctrine of Basic Structure propounded in Kesavananda Bharati case2.
The concept whether Social Justice is and should be a basic feature provoke and excite lawyers,
judges and jurists at both ends of the spectrum into a hot debate. There is a line of thinking that
the Constitution would rather have adopted the course different from that of socialism. There are
those that hold a diametrically opposite view that social justice is a panacea for all the evils of
the Statehood. The Preamble is designed to realize socio-economic justice to all the people in
India.

* Somnath De, B.A.LL.B(Hons.), 5th Year, S.K.Acharya Institute of Law, Kalyani.

1
Rawls John, Theory of Justice, (1971)
2
Keshvananda Bharti vs. State of Kerala., AIR 1973 SC 1461

Electronic copy available at: http://ssrn.com/abstract=1794210

Simply put, Social Justice is the comprehensive form to remove social imbalance by law
harmonizing the rival claims or the interest of different groups and/or section in the social
structure or individuals by means of which alone it would be possible to build up a welfare
State.3 A powerful instrument for the preservation of right is that of the jus civilel. For
prevention of social wrongs and injustice there must be efficient administration of justice
according to pre-declared principles of law and this can be done through the machinery of law
courts and legal process.

CONCEPT AND ADVENT OF SOCIAL JUSTICE

Social Justice is a concept that has fascinated philosophers ever since Plato in The Republic
formalized the argument that an ideal state would rest on four virtues wisdom, courage,
moderation, and justice. The addition of the word social is to clearly distinguish Social Justice
from the concept of Justice as applied in the law- state-administered systems, which label
behavior as unacceptable and enforce a formal mechanism of control, may produce results that
do not match the philosophical definitions of social justice - and from more informal concepts of
justice embedded in systems of public policy and morality and which differ from culture to
culture and therefore lack universality. Social justice is also used to refer to the overall fairness
of a society in its divisions and distributions of rewards and burdens and, as such, the phrase has
been adopted by political parties with a redistributive agenda. Social Justice derives its authority
from the codes of morality prevailing in each culture. If you ask a lot of people to define social
justice youre going to get many different definitions. Definitions will be based on a variety of
factors, like political orientation, religious background, and political and social philosophy. A
general definition of social justice is hard to arrive at and even harder to implement. In essence,
social justice is concerned with equal justice, not just in the courts, but in all aspects of society.
This concept demands that people have equal rights and opportunities; everyone, from the
poorest person on the margins of society to the wealthiest deserves an even playing field.4 The
term social justice was first used in 1840 by a Sicilian priest, Luigi Taparelli d'Azeglio, and
given prominence by Antonio Rosmini Serbati in La Costitutione Civile Secondo la Giustizia
Sociale in 1848. It has also enjoyed a significant audience among theorists since John Rawls
book. A Theory of Justice has used it as a pseudonym of distributive justice.
The concept of social justice is a revolutionary concept which provides meaning and significance
to life and makes the rule of law dynamic. When Indian society seeks to meet the challenge of
socio-economic inequality by its legislation and with the assistance of the rule of law, it seeks to
achieve economic justice without any violent conflict. The ideal of a welfare state postulates
unceasing pursuit of the doctrine of social justice. That is the significance and importance of the
concept of social justice in the Indian context of today.
The achievement of community aims will depend upon the co-ordination of many functional
specializations. Hence, true social justice is attained only through the harmonious co-operative
effort of the citizens who, in their own self-interest, accept the current norms of morality as the
3
4

Dalmia Cement(Bharat) Ltd. V. Union of India, (1996) 10 S.C.C 104

http://www.wisegeek.com/what-is-social-justice.htm visited on 25.10.2010

Electronic copy available at: http://ssrn.com/abstract=1794210

price of membership in the community. The next major impetus for the development of the
concept came from Christianity. Thomas Aquinas says, "Justice is certain rectitude of mind
whereby a man does what he ought to do in the circumstances confronting him." As a theologian,
Aquinas believed that justice is a form of natural duty owed by one person to another and not
enforced by any human-made law.
John Locke, an early theologist Utilitarian argued that people have innate natural goodness and
beauty, and so, in the long run, if individuals rationally pursue their private happiness and
pleasure, the interests of the society or the general welfare will be looked after fairly.
In the latter part of the twentieth century, the concept of Social Justice has largely been
associated with the political philosopher John Rawls who draws on the utilitarian insights of
Bentham and Mill, the social contract ideas of Locke, and the categorical imperative ideas of
Kant. His first statement of principle was made in A Theory of Justice where he proposed that,
"Each person possesses an inviolability founded on justice that even the welfare of society as a
whole cannot override. For this reason justice denies that the loss of freedom for some is made
right by a greater good shared by others."
The concept of social justice may hold some or all of the following beliefs:

Historical inequities insofar as they affect current injustices should be corrected until the
actual inequities no longer exist or have been perceptively "negated".
The redistribution of wealth, power and status for the individual, community and societal
good.
It is government's (or those who hold significant power) responsibility to ensure a basic
quality of life for all its citizens.

The term Social Justice is not capable of any precise definition. It has neither any specific
content nor does it have any definite contours. It changes with the times, with the culture, with
the state of economy and with the people. Aristotle, the great Greek philosopher, talks of
corrective justice, distributive justice and general justice. Distributive justice is a course that
Social Justice adopts. In other words, the term Social Justice implies offering economic
opportunity, economic equality and removal of social disabilities. It implies in the Indian
context, programmes aimed at equality before law, equal opportunity, alleviation of poverty,
bridging of the gap between the have and the have-not, re-distribution of material resources,
amelioration of conditions of labour and removal of caste disabilities etc.
In India the idea of welfare state is that the claims of social justice must be treated as cardinal
and paramount. Social justice is not a blind concept or a preposterous dogma. It seeks to do
justice to all the citizen of the state. In interpreting the philosophy of social justice of our;
Constitution Justice Fazal Ali observed: The concept of social justice is not foreign to legal
justice or social well-being or benefit to the community rooted in the concept of justice in the
20th century. The challenge of social justice as I see, it is primarily a challenge to the society at
large more than to the court immediately. Social justice is one of the aspirations of our
Constitution. But we, the courts must remember are pledged to administer justice - social or
legal, jurisprudence has shifted away from fine spun technicalities and abstract rules to
recognition of human beings as human beings.5 Thus The Constitution of India in the preamble
5

http://www.indiankanoon.org/The Court And Social Justice Myth And Truth.htm last visited on 26.10.2010

resolved to secure to all its citizens: Justice, social, economic and political. Therefore, concept of
social justice is not foreign to legal order. Social justice is the primary objective of the State as
envisaged in our Constitution. Social Justice implies that all citizens are treated equally
irrespective of their status in society as a result of the accident birth, race, caste, religion, sex,
title etc.6

DIMENSIONS OF INTERNATIONAL JUSTICE AND SOCIAL JUSTICE

Social justice first appeared in United Nations texts during the second half of the 1960s. At the
initiative of the Soviet Union, and with the support of developing countries, the term was used in
the Declaration on Social Progress and Development, adopted in 1969.The Charter of the United
Nations makes no explicit distinction between international justice, or justice among nations, and
social justice, or justice among people. In the Preamble and Article 1 of the Charter, justice is
associated with respect for international law. In Article 2, justice is linked to the sovereign
equality of all Members and to the maintenance of peace and security. The concept of social
justice and its relevance and application within the present context require a more detailed
explanation. As mentioned previously, the notion of social justice is relatively new. The concept
first surfaced in Western thought and political language in the wake of the industrial revolution
and the parallel development of the socialist doctrine. It was born as a revolutionary slogan
embodying the ideals of progress and fraternity. Social justice represented the essence and the
raison dtre of the social democrat doctrine and left its mark in the decades following the
Second World War. Of particular importance in the present context is the link between the
growing legitimization of the concept of social justice, on the one hand, and the emergence of the
social sciences as distinct areas of activity and the creation of economics and sociology as
disciplines separate from philosophy (notably moral philosophy), on the other hand. Social
justice became more clearly defined when a distinction was drawn between the social sphere and
the economic sphere, and grew into a mainstream preoccupation when a number of economists
became convinced that it was their duty not only to describe phenomena but also to propose
criteria for the distribution of the fruits of human activity. Social justice is treated as synonymous
with distributive justice, which again is often identified with unqualified references to justice, in
the specific context of the activities of the United Nations, the precise reasons for which may
only be conjectured. Social justice, equality and equity were sometimes defined as distinct
concepts but were more often used loosely and interchangeably. One of the basic touchstones of
social justice is equity. The Universal Declaration of Human Rights, and the International
Covenants on Human Rights, and in subsequent texts adopted by the General Assembly, notably
the Copenhagen Declaration and Programme of Action and the United Nations Millennium
Declaration is never forget about that. They include Equality of rights, primarily implying the
elimination of all forms of discrimination and respect for the fundamental freedoms and civil and
political rights of all individuals. Equality of opportunities, which requires stable social,
economic, cultural and political conditions that enable all individuals to fulfill their potential and
contribute to the economy and to society. In the present context, the telling of the story of
social justice in the United Nations, distinct from an evocation of the avatars of international
6

Kashyap C. Subhash,
p. 72 (2007)

Our Constitution An Introduction to Indias Constitution and Constitutional Law,

justice in the same organization, is justified by the need to explain the divorce between human
rights and development. Chapter 1 of this Charter includes a list of 15 principles that should
govern relations between States, and a few of these are particularly relevant in the present
context; the thirteenth principle is the promotion of international social justice, the first is
sovereignty, territorial integrity and political independence of States, and the eleventh is
respect for human rights and fundamental freedoms.
The notion of equal rights, a foundation of social justice, is an important part of the international
discourse and is probably gaining ground overall, at least in the global consciousness... By the
time the latter text came out, social justice was a familiar concept in those parts of the Secretariat
involved in social affairs. Human rights efforts focused on the individual, while the work on
development and social justice concentrated on society and international cooperation for
development. Sometime Social justice seen as a substitute for the protection of human rights.
Finally, in the new doctrinal orientation of the United Nations with regard to development and
social justice, recognition is given to the vital role of non-State and non-public actors in the
economic and social evolution of societies and of the world as a whole.

CONSTITUTIONAL EMPHASIS ON SOCIAL JUSTICE

The constitutional concern of social justice as an elastic continuous process is to accord justice to
all section of the society by providing facilities and opportunities to remove handicaps and
disabilities with which the poor etc are languishing and secure dignity of their person7. Justice
V.R. Krishna Iyer, committed as he is, and was during his jural years, to the cause of social
justice and the underdogs, whose heart throbs for the meek and the weak, in his book titled,
Social Justice bemoans the fact that neither the legislature nor the executive, nor the judiciary
is at all sincere in its efforts to procure social justice. It almost borders on a diatribe against these
institutions. Social Justice is the principles that go into the formation of a welfare state; and such
themes and principles are amply reflected in the Preamble to the Constitution, in Part III
Fundamental Rights and in Part IV the Directive Principles of the Constitution. It has been held
that the validity of any law enacted by the legislature would be tested against the touchstones of
the Preamble, Fundamental Rights and Directive Principles. The Preamble, Fundamental Rights
and the Directive Principles form the ethical basis for the constitutional endeavour of social
engineering for the creation of an egalitarian society8.
Former Honble Chief Justice R.C. Lahoti, has noted in the Introduction of his book, The
Preamble that it is no exaggeration to say that the Preamble to the Constitution of India is its
spirit and backbone. The Preamble pervades through and inspires all the provisions of the
Constitution. It is also the quintessence of the Constitution. Ever since the day it was adopted by
the Constituent Assembly it has enabled the Constitution to stand erect neither bending nor
breaking. Hundreds of judicial pronouncements made by stalwarts testify to the Constitution of
India having stood like a rock facing the splash and floods of stormy waters; the waters have
flown by but the Constitution and its Preamble have not swayed away. In his discerning view,
the Preamble is divided into three parts by its qualitative characteristics, namely declaratory,
7
8

Consumer Education & Research Centre v Union of India, (1995) 3 SCC 42, (Para 19): AIR 1995 SC 922
B. Senguttuvan, Constitutional-Emphasis-On-Social-Justice

whereby the people of India adopted, enacted and gave to themselves this Constitution; and
revolutionary whereby the people of India solemnly resolved to constitute India into a sovereign
democratic republic and promissory a commitment by the people of India to secure to all its
citizens the four objectives mentioned in the Preamble, i.e. justice, liberty, equality and
fraternity.
Unless there is justice, liberty is 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. Even in the case of S.R. Bommai v Union of India9 where
court held that Social Justice and Judicial Review is the basic feature of the Constitution of
India. The seeds of Social Justice which have been sown in the Preamble; and by the time one
goes to Part III and Part IV, they are in full bloom. Arts. 14, 15 and 16 speak of equality before
law and equal protection of laws. Besides the Preamble, the Directive Principles of State Policy
contained in Chapter IV of the Constitution expostulate the philosophy of social justice. The
Directive Principles of State Policy drew both bouquets and brickbats from the Members of the
Constituent Assembly and the latter-day jurists.
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.10 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.
Jurisprudence is the eye of law giving an insight into the environment of which it is the
expression. It relates the law to the spirit of the time and makes it richer. Law is the ultimate aim
of every civilised society as a key system in a given era, to meet the needs and demands of its
time. Justice, according to law, comprehends social urge and commitment. The Constitution
commands justice, liberty, equality and fraternity as supreme values to usher in the egalitarian
social, economic and political democracy. Social justice, equality and dignity of person are
cornerstones of social democracy. The concept '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 generic sense.
Justice is the genus, of which social justice is one of the species. 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 a status of equality and enable them to live life with the dignity of
person. Social justice is not a simple or single idea of a society but is an essential part of complex
of social change to relieve the poor etc. from handicaps, penury to ward off distress, and to make
9

AIR 1994 SC 1918

[1992] 3 SCR 33

10

their life liveable, for greater good of the society at large. In other words, the aim of social
justice is to attain substantial degree of social, economic and political equality, which are the
legitimate expectations. Social security, just and humane conditions of work and leisure to
workman are part of his meaningful right to life and to achieve self-expression of his personality
and to enjoy the life with dignity, the State should provide facilities and opportunities to them to
reach at least minimum standard of health, economic security and civilised living while sharing
according to the capacity, social and cultural heritage. In a developing society like ours steeped
with unbridgeable and ever widening gaps of inequality in status and of opportunity, law is
catalyst, Rubicon to the poor etc. to reach the ladder of social justice.
The implementation of the Directive Principles of State Policy have placed great strain and
demand on the legislative power of the State at times running counter to the Fundamental Rights
guaranteed under Part III of the Constitution. This dialectical and dynamic conflict that arises
between the directive principles and the fundamental rights is one of most enduring interest in
Indian Constitution. The Supreme Court said, It is only by implementing the Directive
Principles that distributive justice will be achieved in the society. 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 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 person. Social justice is not a simple or single idea of society but is an essential part of
complex social change to relieve the poor etc. In a developing society like ours, steeped with
unbridgeable and ever-widening gaps of inequality in status and of opportunity, law is a catalyst,
Rubicon to the poor etc. to reach the ladder of social justice. What is due cannot be ascertained
by an absolute standard which keeps changing, depending upon the time, place and
circumstances. The constitutional concern of social justice as an elastic continuous process is to
accord justice to all sections of the society by providing facilities and opportunities to remove
handicaps and disabilities with which the poor, the workmen etc. are languishing and to secure
dignity of their person. The Constitution, therefore, mandates the State to accord justice to all
members of the society in all facets of human activity. The concept of social justice embeds
equality to flavour and enliven the practical content of life. Social justice and equality are
complementary to each other so that both should maintain their vitality. Rule of law, therefore, is
a potent instrument of social justice to bring about equality in results.
Therefore, rights conferred on citizens and non-citizens are not merely individual or personal
rights. They have a large social and political content, because the objectives of the Constitution
cannot be otherwise realized. Fundamental rights represent the claims of the individual and the
restrictions thereon are the claims of the society. Article 38 in Part- IV is the only Article which
refers to justice, social, economic and political. However, the concept of justice is not limited
only to directive principles. There can be no justice without equality. Article 14 guarantees the
fundamental right to equality before the law on all persons. Great social injustice resulted from
treating sections of the Hindu community as 'untouchable' and, therefore, Article 17 abolished
untouchability and Article 25 permitted the State to make any law providing for throwing open
all public Hindu religious temples to untouchables. Therefore, provisions of Part-III also provide

for political and social justice11. According to an activist Court, these words in the Preamble
enjoins the State to enact positive measure for the protection of the tribal and the weaker section
of the community, so that the constitutionality of such measures should be upheld in this light.12
The expression social and economic justice involves the concept of distributive justice which
connotes the removal of economic inequalities and rectifying the injustice resulting from dealing
or transaction between unequal in society. It comprehends more than lessening of inequalities by
different taxation, giving debt relief or regulation of contractual relation; it also means the
restoration of properties to those who have been deprived of them by unconscionable bargains; it
may also take the form of forced redistribution of wealth as a means of achieving a fair division
of material resources among the members of society.13
Social justice is concerned with the distribution of benefits and burdens. The basis of distribution
is the area of conflict between rights, needs and means. These three criteria can be put under two
concepts of equality, namely, "formal equality" and "proportional equality".
Formal equality means that law treats everyone equal. Concept of egalitarian equality is the
concept of proportional equality and it expects the States to take affirmative action in favour of
disadvantaged sections of society within the framework of democratic polity. In 1977 the 42nd
amendment proclaimed India as a Socialist Republic. The word 'socialist' was introduced into the
Preamble to the Constitution. The implication of the introduction of the word 'socialist', which
has now become the centre of the hopes and aspirations of the people - a beacon to guide and
inspire all that is enshrined in the articles of the Constitution, is clearly to set up a "vibrant
throbbing socialist welfare society" in the place of a "Feudal exploited society". Whatever article
of the Constitution it is that we seek to interpret, whatever statute it is whose constitutional
validity is sought 'to be questioned, we must strive to give such an interpretation as will promote
the march and progress towards a Socialistic Democratic State.
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 in three parts, one is Preamble as I mentioned before, second
Fundamental Rights and thirdly through Directive Principles.
A. Fundamental Rights
The Supreme Court in Sadhuram V. Pullin Behari. observed that social justice is one of the
aspirations of the Indian Constitution. In view of securing to all its citizens social justice our
Constitution provides some Fundamental rights in Part III some of which are available to all
persons and some are enjoyable only by the citizens of India. They are (i) Equality before law (Art 14)
(ii) Prohibition of discrimination on ground of religion, race, caste, sex or place of birth (Art 15)
(iii) Equality of opportunity in matters of public employment (Art 16)
(iv) Abolition of Untouchabiiity (Art 17)
(v) Abolition of titles (Art 18)
11

M. Nagaraj & Others v Union of India & Others (2006) 8 SCC

12

Lingappa Pochanna Appelwar v State of Maharastra, AIR 1985 SC 389 (Paras 14,16,18,20)
Basu Durga Das, Shorter Constitution of India, p.4(2006)

13

(vi) Protection of certain rights regarding freedom of speech etc. (Art 19)
(vii) Protection of life and personal liberty (Art 21)
(viii) Protection in respect of conviction for offenses (Art 20)
(ix) Protection against arrest and detention in certain cases(Art 22)
(x) Protection of traffic in human beings and forced labour (Art 23)
(xi) Prohibition of employment of children in factories or mines or in any other hazardous
employment (Art 24)
(xii) Freedom of Religion (Art 25 - 28)
(xiii) Protection of interests of minorities (Art 29-30)
(xiv) Judicial remedies for enforcement of rights conferred by this Part - III of the Constitution
(Art 32).

B. Directive Principles of State Policy

To realize the goal of social justice our constitution also provides some directives to the State in
the form of Directive Principles of State Policy (Articles 39-50) and lays down that the state shall
direct its policy towards securing these objectives. The most important of these directives are (i) Promotion of welfare of the people (Art 38)
(ii) Adequate means of livelihood; equal distribution of material resources of the community;
distribution of means of production to the common good equal pay for equal work; promotion of
health and strength of workers, men and women and the children : Protection against exploitation
of child hood and youth (Art 39)
(iii) Equal justice and free legal aid (Art 39A)
(iv) Right to work, education and to public assistance in certain cases (Art 41)
(v) Just and human conditions of work and maternity relief (Art 43)
(vi) Living wages for workers (Art 44)
(vii) Uniform civil code (Art 44)
(viii) Free and compulsory primary education for children (Art45)
Article 38 of the Constitution enjoins the State to strive to promote the welfare of the people by
securing and protecting, as effectively as it may, the social order in which justice- social,
economic, and political- shall inform all the institutions of the national life striving to minimize
inequalities in income and endeavor to eliminate inequalities in status, facilities, opportunities
amongst individuals and groups of people residing in different areas or engaged in different
avocation.14 Read wit Article 39A, Social Justice would include legal justice, which means that
the system of administration of justice must provide a cheap, expeditious and effective
instrument for realization of justice by all section of the people irrespective of their social or
economic position or their financial resources.15 In Short, the doctrine of equality embodied in
14
15

Air India Statutory Corpn. V. United Labour Union (1997) 9 SCC 377
Babu Ram L. v. Raghunathji Maharaj, AIR 1976 SC 1734 (para 1): (1976) 3 SCC 492.

Article 14 to 18 has to be understood in the light of social justice assured by Articles 38, 39,
39A, 41 and 46 of Part IV of the Constitution.16
In State of Bihar v. Kameshwar Sing17 Court held that the ideal we have set before us in Art. 38
is to evolve a State which must constantly strive to promote the welfare of the people by
securing and making as effectively as it may be, a social, economic and political justice shall
inform all the institutions of the national life.
Concept of social justice consists of diverse principles essential for orderly growth and
development of personality of every citizen. It is a dynamic device to mitigate the suffering of
the poor, weak, dalits, tribal and deprived section of people.18
Again in the case of Air India Statutory Crop. v. United Labour Union19 court observed that
The Preamble and Art 38 of the constitution envision social justice as the arch to ensure life to be
meaningful and livable with human dignity.
The Constitution commands justice, liberty, equality and fraternity as supreme values to usher in
the egalitarian social, economic and political democracy. Social Justice, equality and dignity of
person are cornerstones of social 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 generic sense.
Therefore, axioms like secularism, democracy, reasonableness, social justice etc. are overarching
principles which provide linking factor for principle of fundamental rights like Articles 14, 19
and 21. Lastly, constitutionalism is about limits and aspirations. According to Justice Brennan,
interpretation of the Constitution as a written text is concerned with aspirations and fundamental
principles. In his Article titled 'Challenge to the Living Constitution' by Herman Belz, the author
says that the Constitution embodies aspiration to social justice, brotherhood and human dignity.
It is a text which contains fundamental principles.
The meaning of the expression is also brought out by Article 46, which aims at protecting the
weaker section from Social injustice Provision in this behalf are also made in Article 15(4),
16(4), 19(1)(d)(e), 275,330,335.20

JUDICIARY vis--vis SOCIAL JUSTICE

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.
16

Indra Shwhney v Union of India, AIR 1993 SC 1734 (Para 4) : 1992 Supp. (3) SCC 217.
AIR 1952 SC 252
18
Consumer Education & Research Centre v. U.O.I. AIR 1995 SC 922.
19
AIR 1997 SC 654
20
Sadhuram Bansal v Pulin Bihari Sarkar, AIR 1984 SC 1471 (Paras 29,70,73): (1984) 3 SCC 410
17

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This judicial activism sharing the passion of our Constitution for social justice was started since
the Maneka Gandhi case in which fundamental right of personal liberty has been converted into a
regime of positive human rights unknown in previous constitutional diction. Thereafter,
gradually the Supreme Court, particularly some socialist justices tried to explore social justice in
our Fundamental Rights and Directive Principles of State Policy and thus we get an explosion of
rights. In this way the courts try to force the government to realize the new concept of social
justice in the cases of Sunil Batra V. Delhi Administration21(right against torture); Bandhua
Mukti Morcha V. Union of India22 (right against bondage); Peoples Union for Democratic
rights V. Union of India23 (right against bondage); Olga Tellis V. Bombay Municipal
Corporation24 (right to livelihood); R.L. &. E. Kendra Dehradun V. State of Uttar Pradesh or
M.C. Mehta V. Union of India25 (right against environmental pollution), Upendra Baxi V.
State of Uttar Pradesh26(right to human dignity), Sheela Barse V. Union of India27 (right to
legal aid); M.K. Sharma V. Bharat Electronics Ltd.28 (right to have safety and protection to
the workers); Sankar V. Durgapur Projects Limited29 relying on Olga Tellis the court held
that compelling a person to live in subhuman conditions amounts to the taking away of his
life; Poola Bhaskara Vijay Kumar V. State of Andhra Pradesh Court held that right to
prisoner to get wages (Art 21); Krishen Pattanyak V. State of Orissa30 (victims of starvation
deaths in the district of Kalahandi, Orissa); Vishal Jeet V. Union of India31 (child abuse and
forced prostitution); M.C. Mehta V. State of Tamil Nadu32 (right of children against
exploitative employment in hazardous industries); Delhi Judicial Service Association, Tis
Hazari courts Delhi V. State of Gujarat33(also known as Nadiad case) (police brutality to
C.J.M., Nadiad); Banwasi Sewa Ashram v State of U.P.34 where adivasis and other back-ward
class people used forest as their habitat and means of. livelihood and parts of such forests were
declared as reserved. In these cases the judges maintain that in a developing society judicial
activism is essential for participative justice and the bureaucrats as well as the elected
representative will _ have to face the judicial admonition and pay the penalty if the people in
misery cry for justice.
The Supreme Court held in Consumer Education & Research Centre v Union of India35 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
21

AIR 1980 SCR (2) 557

1984 3 SCC 161
23
(1982) 3 SCC 235; AIR 1982 SC 1473
24
AIR1986 SC180
25
1985 SC 652
26
(1983) 2 SCC 308
27
(1986) 3 SCC 596
28
AIR 1987 SC 1792
29
AIR 1988 Cal 136
30
(1989) AIR 677
31
AIR 1990, SCR (2) 861
32
(1996) 6 S.C.C. 756
33
AIR 1991 SC 2176
34
1992 SCC (2) 202
35
[1995] 3 SCC 42
22

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Kerala Education Bill, 195736, the Supreme Court advocated a harmonious construction of the
Fundamental Rights and the Directive Principles. The Supreme Court speaking through, Justice
O. Chinnappa Reddy ruled in Atam Prakash v State of Haryana and Ors 37The 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, 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 our
hopes 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 India38.
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. Kodala39 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.40, held that the term Social Justice is a
Fundamental Rights. In Ajaib Singh v Sirhind Cooperative Marketing-cum-Processing Service
Society Ltd.41, 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)42, 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.
The Supreme Court has firmly ruled in Balbir Kaur v Steel Authority of India43 that "the
concept of social justice is the yardstick to the justice administration system or the legal justice
36

AIR 1958 SC 956

AIR 1986 SC 859
38
AIR 1982 SC 1473
39
http://indiankanoon.org/doc/190580/ last visited on 1.11.2010
40
(1997)5 SCC 201 (Para 26)
41
(1999) 6 SCC 82 (Para 5).
42
(2000) 3 SCC 224 (paras 32 and 33) : AIR 2000 SC 1274
43
(2000) 6 SCC 493
37

12

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.

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 part
and 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.

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