Equality And Social Justice

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Category: General Law

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EQUALITY AND SOCIAL JUSTICE

Mugdha Rao, D.E.S's Shri Navalmal Firodia Law College, Pune

ABSTRACT

No one is equal if there is no equality for all. Right of equality is provided under the constitution of India to protect individuals from being treated unequally by the state machineries whereas social justice was incorporated to irradiate social inequality. Equality is guaranteed to all, as fundamental right under Constitution of India, which is justiciable. Whereas social justice is present in the constitution of India as part of preamble and also as a guideline to state while formulating laws and policies under Directive Principles of State Policy. Equality means protection of individuals from discrimination, it means state has to provide equal treatment to people under similar circumstances where as social justice means to attain sustainable social, economic and political equality1 .

Equality of individual cannot be ensured unless equality of each and every members in a society is preserved. Social justice ensures equality of status and opportunity to all members in a society. Though social justice and equality are interrelated topics, at certain instances the rights of privileged individuals need to be curtailed or certain advantages need to be given to the disadvantaged groups of the society by the government so that they have equal access and opportunity to utilise the resources and also so that they are also placed at a same footing as the advantaged group. Hence providing different treatment to the privileged individuals and under privileged individual might seem to violate the right of equality of privilege individuals. Hence the extent to which the legislature be allowed to make unequal laws in order to achieve social justice must be reviewed carefully.

Equality of individual in a society is not possible without ensuring social justice. All the policies that government formulates should compulsorily uphold the value of social justice in India. Keywords: Equality, Discrimination, Social Justice, Society

1 M P Jain, Indian Constitutional Law, 1468(8th ed.,2018)

Introduction

India is home to people having various religious beliefs, speaking many different languages, having different lifestyle and the constitution of India, despite all of these differences promotes harmony and sense of brotherhood amongst its citizens. After the Independence India was left vary poor due to the over exploitation and looting of the natural resources by the British and also due to the partition, many Indians had to leave their homes, lands and other economic resources as they were displaced and had to make choice between country formed on the basis of religion that was Pakistan or the a Secular Country that was India. There were certain preexisting enemies that India had to combat like the castes, misogyny and the religious enmity between the various communities.

As the people were poor many children especially belonging to lower caste were robbed of the opportunity to get education and were pushed into child labour. The basis of Indian society soon after Independence was far from Just and it was yet to be freed from the discriminatory and barbaric customs and traditions that were prevailing. Makers of Indian Constitution were aware of all of these situations and therefore they incorporated such provisions in Constitution so that equality of status and opportunity can be secured for all. Citizens cannot be considered as equals if their social and economic conditions are different not allowing their equal growth in all spheres of life.

Hence legislative provisions have to be made which may give deprived classes certain privileges or increase liabilities on the privilege individuals which indeed ensure that the all the individuals have equal access to all resources and which will pave the way for participation and representation of different individuals from different groups, in the society. Therefore the Constitution being the skeletal document had to make possible for legislators to have powers to make such laws. Indian constitution equality is guaranteed as a fundamental right, which means in the case of infringement of this right any action of legislature or executive the citizen can directly approach the Supreme Court to or the High Court for enforcement of this right. But for Social justice to prevail in a certain society, various social institutions will have to be based on the principles of justice.

The discriminatory practices or the undue advantages that a particular community has on control and access to a certain type resources shall be put to an end. Uplifting of the deprived sections of the population was not possible only by providing a provision to end discrimination, it was essential to provide provisions enabling state to provide for positive discrimination in favour of less privilege, imposing more burden on the more privilege ones. The social justice is provided in the preamble as well as Directive Principles of State Policy but they are not justiciable. The sense of brotherhood Indians have towards each other enables them to sacrifice selflessly in order to promote the welfare of society at large. Legislature is therefore provided with the duty to ensure social justice through various statutes.

The people are responsible to not elect a government which does not full fill the obligation to bring social justice. Concept of Equality and Social Justice Equality under Indian Constitution means that every person meaning citizens as well as noncitizens are equal before the law and are equally protected by the laws. ‘Equality before the law’ is a negative concept implying the absence of any special privileges in favour of an individual. ‘Equal protection of laws’ is a more positive concept implying equality of treatment in equal circumstances2. This clearly shows that only the people who are similarly circumstanced should be treated similarly and not the people who are not similarly circumstanced. This creates a scope to make special laws in favour of under privileged.

Though Article 14 ensures Rule of Law which indeed forbids class legislation but it does not stop the state from making a reasonable classification. The reasonable classification means if there is a certain group in society which has certain type of social disadvantage, then in order to remove that particular disadvantage the state can classify that particular group and provide certain benefits in order to overcome this disadvantage. The classification and the object must have nexus between them. Social justice means providing dignity to the life of deprived classes and castes. Social justice ensures equality in terms of status and opportunity to each and every individual present in a particular society. Social Justice is a sum total of social, political and economic equality.

In Air India statutory corporation v united labour union3 it was held that the aim of social justice was to attain substantial degree of social and political equality which is legit expectation as well as constitutional goal. It was also held that equality and social justice are complementary to each other and rule of law is potent instrument of social justice to bring about equality.

2 M.P. Jain, Indian Constitutional law 78 (8th ed. 2020).

3 Air India Statutory Corporation Vs. United Labour Union & Ors, AIR 1997 SC 645.

Mere equal distribution of wealth or political equality will not be sufficient to ensure presence of social justice but ensuring equality socially and fighting off the social evils like cast base discrimination, misogyny and exploitation of children and labourers are the real aims of social justice. Social justice indirectly ensures that there is equality in real and in practicality by ensuring that positive steps are taken towards equality. Mere ensuring that state cannot discriminate against the individuals is not sufficient to ensure equality to the underprivileged cast and class as they were discriminated for a long period of time hence they will not be able to have access to equal opportunity unless additional aid is given. This additional aid ensures social justice while indirectly promoting equality. Hence social justice is always viewed as an important tool in ensuring equality.

History of ensuring equality through ensuring social justice (countering social inequality) Indian society was divided into various classes and casts. The people belonging to lower cast were deprived of their basic rights and were dominated by the upper cast. The lower casts were considered as untouchables and hence were not allowed to use wells, roads which were kept for exclusively for the use of the upper casts. This unequal treatment which was cruel, inhuman, unjust which was a direct attack on human dignity of the people who were born into the so called lower caste families. Many social reformists came up with various ideologies of how in a society that is so much based on caste equality should be established.

Usually when such a reformer was from an upper cast he had a more liberal attitude towards existence of the cast indeed they did not believe in total abolition of caste but mere ensuring that the human dignities of those belonging into lower casts are ensured. For the social reformers who belonged to the lower cast and they themselves having faced discrimination wanted to abolish the castism completely. They believed in uprooting castism. Even during colonial era in India there were many reformists who fought against cast based discrimination like Swami Vivekananda who was against inferior treatment of any person, Rajaram Mohan Roy who founded the Bhramo Samaj, and Narayan Guru according to whom all human kind belonged to the same cast4. These reformists indeed wanted a society which was free from discrimination where all humans were treated equal which could ensure social justice.

4Our Past-III 86 avliable at https://ncert. nic. in/textbook/pdf/hess207. pdf last seen on 19/12/23 The cast based discrimination not only deprived the people belonging to lower cast from having an equal participation in society but also deprived them of certain essential aspects like education which could have been a means of them to better their lives one of such fights for rights of children of under privileged class was led by Ayyankali. He belonged to an underprivileged caste they worked as agricultural slaves in the farms, their owner ship of land was forbidden by law due to castism, but his fight was not for the purpose of wage hike but for implementation of the order that was given by the Maharaja of Travancore permitting children of untouchables to be admitted into government schools5 which was not properly implemented due to problems created by upper cast.

Deprivation of education to untouchables would force them into child labour and also they would have no scope of having better life as they would not have proper skills due to lack of education. Other social injustices prevailing at that time was discrimination of women. Women at that time were not only were oppressed but also denied a dignified life. Important and essential aspects which made a human life different from that of animals were denied like right of education, right of a healthy childhood as they were forced into early marriages which resulted in early or childhood pregnancies which resulted in various health related issued. They were forced into domestic work and were technically treated as slaves. The practices like sati were followed or the widowed women were completely deprived of having a social life and were not allowed to remarry.

Hence men and women during the colonial era tried to reform the then existing society and tried to provide dignity to women’s life. Social reformists like Raja Ram Mohan Roy had criticised sati practice and strongly demanded it to be abolished and as a result of which Sati Abolition Act 1829 was passed and Ishwar Chandra Vidyasagar demanded that widow women should be allowed to be remarried which resulted in Hindu widow remarriage Act 1856. Roy and Vidyasagar challenged religious social norms without hurting religious sentiments of people by translating religious texts in various languages to highlight the erroneous ideas that people held and to introduce them to the true spirit of their religion6. During this era certain other Acts like Female infanticide prevention Act, 1870 and then age of consent was established and then was increased from 10 to 12 years for Indian girls. These

5 C.B Raju Social Justice and Constitution of India38(Serials Publication2019)

6Prerna Dhoop, What the Women's Movement Today Can Learn From 19th-Century Social Reformers, The Wire, (Sept. 24,2024, 6PM), https://thewire. in/society/what-the-womens-movement-today-can-learn-from-19thcentury-social-reformers legislations were important for establishing social justice though they do not seem to establish an equal status of women when seen from then modern perspective. Women’s education was strongly opposed as it would have been a means for them to understand their rights and to be liberated. Savitribai Phule and Jyotirao Phule were the two well-known social reformists who fought for educating women and opened schools for girls despite heavy criticism from the upper cast. Chatrapati Sahu Maharaj also ensured social justice by giving rights to women, and lower cast people in order to improve their condition in society.

He felt the need to enact laws to prevent such social oppressions certain important laws that he enacted were The most important laws were enacted: -1) free and compulsory education to all. 2) Marriage registration act and inter caste and inter religion marriage. 3) Prohibition of harassment of women act. 4) Divorce amongst different caste and religion - Kolhapur act. 5) Hindu illegitimate children and act relating to jogtin. 6) Devadasi prohibition act. These reformists worked for ensuring the equality for all they did that by attempt to make a just society. D. R. B. R. Ambedkar fought against societal oppression of not only underprivileged caste but for women and other poor, submitted his statement to Simon commission, which contained certain safeguards that could secure the interests of underprivileged classes. This step was taken by Dr. Br.

Ambedkar despite Simon Commission being boycotted by the Congress for not allowing Indians to participate in it, but only motive in doing this act was to secure the rights of depressed class. Even at round table conference he represented the rights of depress class. After the communal award was passed which provided separate electorate for depressed classes, Gandhi ji started his fast unto death because according to him this created divide in the society. Thus DR. BR. Ambemedkar gave up the demand of separate electorate7 as a result of which a new agreement was signed known as Poona pact which provided representation to the depressed classes. This quest to provide adequate representation continued even while making of Constitution. The makers of Indian Constitution provided a single citizenship which secured the citizenship rights of depressed class as well as minority.

They also included fundamental rights which were adopted from constitution of United States of America and directive principles of state policy adopted form constitution of Republic of Ireland, in constitution

7 Dr. N.V Paranjape, Indian Legal and Constitutional history445 (8th ed.2018)

of India. The fundamental rights ensured equality as well as provide liberty to individuals. The Directive Principles of State Policy ensures that positive laws are made by state to ensure equality of status and opportunity. Certain special provisions were made in favour of depressed classes and minorities, including reservation of seats in assembly these provisions received strong opposition. The members opposing them contended that this would create divide in the society. But the idea behind brining these reservations was to provide political representation to these depressed classes as well as minorities which aid them in their progress. The objective was merger of minority with majority thus eradicating social differences and creating a society based on equality.

This was done not by ignoring the existence of minority but by accepting their existence in society and making the society more inclusive for them. The makers of constitution wanted to make India an egalitarian society, they knew that the difference between privileged and underprivileged was so much that the much that removing these inequalities was not possible by just providing an equal right to vote and without aiding the depressed classes with certain special privileges. Dr. Br. Ambedkar in his speeches mentioned that equality without liberty will create supremacy of few over the others. He also mentioned that constitution of India has created a political democracy and social and economic democracy had to be attained otherwise those who suffer from inequalities will blow up the political democracy8.

The makers tried to remove social inequality which would indeed ensure equality for all. Equality as a Facet of Social Justice: In a just society where the resources or the wealth is not concentrated in the hands of few and individuals are not socially disadvantaged due to their religion, caste, place of birth or sex equality will automatically prevail. Merely a provision restricting state from making arbitrary laws will automatically bring equality to the social groups that have been discriminated since time immemorial. As held by Supreme Court in Ahmedabad St. Xavier College v. State of Gujarat9 That by merely providing that the state cannot make

8 Making of Cons,tu,on,h1ps://prasarbhara,.gov.in/whatsnew/whatsnew_653363.pdf (last visited 10 Sept

2024) 9 The Ahmedabad St. Xavier’s College Society and another Vs. The State Of Gujarat and another, 1974 AIR 1389. discriminatory laws against the individual only ensures equality in law but to ensure equality in fact, differential treatment may be necessary. Under the Directive Principle of state Policy the constitution provides various guidelines to the government to achieve social justice, these are merely guidelines to the government for making policies but these are not justiciable which means unlike the fundamental Rights the court cannot enforce them. The Directive Principles of State Policy provides that the state should strive for welfare of community at large where as the fundamental rights are more individual centric. The directive principles of state policy under Article 38 and 3910 provide for distributive justice.

Article 3811 provides that the state should promote social, economic and political justice. The word justice itself will not prevail unless there is equality. As held by the Supreme court Air India statutory Corporation v. Union of India12 that Social justice tries to elevate the poor and weaker sections of the society to a level of equality by reducing their sufferings. The second part of Article 38 provides that the state should strive to minimise inequality in income, status, facilities and opportunities in between people as well as various group of individuals. This provision puts a positive obligation on the government to remove the prevailing inequalities so as to ensure that the differences in status and opportunity amongst the individuals minimised ensuring equality amongst individuals.

Article 3913 provides that state shall ensure that there is adequate livelihood to men and women as well as economic policies such that the material resources are not concentrated in few hand. The equal distribution of the resources will ensure economic equality which will pave the way for equality in status by ensuring similar standard of life for individuals. By providing that equal work should be paid equally, government is directed to irradiate the gender based discrimination of payment in work spaces promoting equal participation of men and women in workforce of the country. It also provides for protection form exploitation of workers as well as provides that childhood should be protected from unnecessary hardship at tender age, this ensures that all citizens of the country enjoy just and equitable conditions. Article 39 A14 provides for free legal aid, which means that a

10 INDIA CONST. art. 38, § 39,

11 INDIA CONST. art. 38.

12 Air India Statutory Corporation Vs. United Labour Union & Ors, AIR 1997 SC 645.

13 INDIA CONST. art. 39.

14 INDIA CONST. art. 39 cl. A

person shall not be denied of justice because of their economic condition which indeed ensures that each and every person is given adequate representation before the court of law. Under Article 31C15 of the constitution states that laws that give effect to directive principles of state policy cannot be declared void because they violate Article 14 and Article 19. The Supreme Court in Keshavnanda Bharti v. State of Kerala16 held that this provision was inserted to promote socialistic principles as provided by the Constitution but it was open for the laws to be challenged on the grounds that they did not have nexus with the directive principles as provided and laws which did not have nexus with the directive principles as provided, were liable to be stuck down if they violated Article 14 and Article 19.

By inserting this provision there was an attempt to give preference to the Directive Principles which promoted social justice, over fundamental Rights but even the courts have accepted that for welfare of society at large certain rights of privileged individuals might have to be curtailed so that real equality prevails in the society. In Minerva Mills17 the Supreme Court had explained that the Fundamental Rights are not ends they are means to achieve the ends provided under Directive Principles of state policy. The equality of status and opportunity by reducing the suffering of every individual by ensuring social justice is the real goal of the every government where as Equality under Article 14 is only means of achieving that goal.

The fundamental rights under constitution provides for various provisions to prevent state from making discriminatory laws or discriminating between individuals in restricting their public life or in the sphere of Public employment under Article 15 and Article 1618 , the Constitution also provides that these safeguards provided to citizens against the discrimination will not prevent the state from making any legislation for the welfare or advancement of the weaker section of the Society like law for women, children, Schedule Cast or Schedule tribe or even for the backward class of citizens. These exceptions which enable the state to make special provisions are discretionary provisions and cannot be enforced in the court of law against the state by any person. These proviso clauses enabling 15INDIA CONST. art. 31, cl. C 16 His Holiness Kesavananda Bharati Sripadagalvaru & Ors. v.

State of Kerala & Anr, AIR 1973 SC 1461.

17 Minerva Mills Ltd. and Ors. vs Union Of India and Ors, AIR 1980 SC 1789.

18 iNDIA CONST. art. 15, § 16

provisions. Supreme Court in the Case Ashoka Kumar Thakur v Union of India19 held that Article 15 (5)20 which enables the government to make special provision for socially backward class of citizen in educational institutions as constitutionally valid as it secures the object of social justice. Merely providing a provision of equality alone irrigate the inequalities specific provisions have to be made in favour of underprivileged for their upliftment. Conclusion: Equality is an essential face of social justice the provisions for social justice. Equality cannot prevail in a society just by providing equality in law, the factual realities of a society including the societal practices including customs and traditions which define the social status, the kind of life an individual will have or the kind of opportunities an individual will have for betterment of his life cannot be ignored.

Merely providing equal treatment by law to every individual despite their social circumstances or prevailing inequalities cannot bring equality in any society but making an effort to uplift the under privilege and to end their sufferings will make them equal to another which is social justice in real sense. References: C. K. Takwani, Text book on Constitutional law of India, (3rd ed. , 2021) M. P. Jain Indian Constitutional law, (8th ed. 2020) Dr. J. N. Panday, Constitutional Law of India (57th ed. 2020)

19 Ashok Kumar Thakur v. Union of India, 1972 (1) SCC 660

20 INDIA CONST. art. 15, cl. 5