-by Atyotma Gupta

“I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power”                                                                                                                          -Thomas Jefferson

This thought by Thomas Jefferson clearly expresses the importance of the constitution and the awareness of it by the people that it is governing. A constitution is a body of some basic and fundamental principles or precedents as per which a state is acknowledged to be governed.[1] It is that document of a state that governs the conduct of the people and provides for certain measures to be taken by the authorized organizations to rule over a defined territory.

Introducing the Rawls’ Notion of Justice

The term ‘justice’ is mostly understood in its narrower sense, that is, justice according to law. But in the present-day world, this term has wider understanding and is meant to include various other concepts like social, economic and political justice. Social justice is basically to maintain an equal distribution of resources in society and to ensure that everyone in society is treated as equal in the same circumstances.[2] Equality is one of the most ingrained and integral components of social justice.

If we consider the theory given by John Rawls for justice the concept of justice can be based on three basic premises.

  1. It is framed for a democratic society. It means that it is for that kind of society which is having a just and fair scheme of co-operation between citizens which is regarded as fair and equal. The concept of social co-operation that is envisaged by Rawls here has three main features:[3]
  2. This social co-operation is different from an activity that is merely socially coordinated. On the other hand, this social co-operation is guided by the rules and procedures that are publicly recognized, that is people cooperating accept them appropriately to regulate their conduct.
  3. This includes the fair terms of cooperation which are accepted by each participant, or which may be reasonably accepted by each participant as everyone else has likewise accepted them. These fair terms of cooperation signify an idea of mutuality or reciprocity, which means that all of the participants who regulate their conduct as per the recognized rules and procedures are entitled to be benefitted as per the standard already agreed upon by the public for the same.
  4. This idea of cooperation is inclusive of the idea of rational advantage or benefit of each and every participant. This rational advantage or benefit is that which the participant seeks to achieve when they regulate their conduct as per the rules and procedures of cooperation.

By the phrase “free and equal persons,” he means that the persons are free, “with respect to two moral powers which are as follows:[4]

  • Capacity for a sense of justice and a conception of the good and
  • The powers of reason (of judgment, though, and inference connected with these powers).
  1. The basic structure of society is considered as the primary subject of political and social justice.[5] The basic structure of the society is the way in which the major political and social institutions of the society fit together into one system of social cooperation. It envisages them to fit into one unified system of cooperation. These institutions are political constitution, economic institutions for instance markets and family, independent judiciary etc. The rationale for the same is that the basic structure in the society affects the aims, aspirations, objectives, character, opportunities, and the ability to take their advantage of the citizens in a very pervasive form. But the principles of justice in this theory does not directly affect the institutions, they affect the basic structure which in turn affect the social and political institutions as above mentioned. Universities, labour unions, churches and families are bound by the constraints and limitation of the principles of justice, but these constraints and limitations are arising indirectly from the background institutions of justice by which the conduct of the members is regulated.
  2. Justice, in this theory, is also a form of political liberalism, which means that the family of highly significant moral values, which apply characteristically to the social and political institutions of the basic structure, are articulated here by justice. This articulation is done in the light of some special features of only political relationship which is clearly distinguished from societal, familial and personal relationships.

When the matter is of constitutional essentials, only those principles and values which each citizen can endorse, and follow are appealed.

Directive Principles Of State Policy And Justice

India has gained independence in 1947 and in 1950 the constitution was adopted. But the drafting of the Indian constitution has begun prior to independence with the constitution of the Constituent Assembly in 1946.[6] The final product which came out was the Indian constitution in which there was a balance between the negative protection of individual liberties with that of the positive rules and procedures to achieve socio-economic justice.

The concept of Fundamental Rights as enshrined in part III of the Indian Constitution provides a list of justiciable rights, for example, right to free speech and expression, right to life and liberty, right to education, etc.

On the other hand, we also have directive principles of state policy, in part IV of the Constitution which contains non- justiciable provisions in relation to social and economic policy and some of the objectives to be attained by the state in the governance of the citizens. Relying on this scheme of the constitution it can be called as a social and dynamic document. It is called as a social document because envision of the constituent assembly was to bring about a social revolution in India and the reason was the struggle made by Indians for independence. The ideals of the constitution were based on the experience of colonialism and its bitter struggle against the same. The first demand by the public for the enforcement of positive rights was made in the Karachi Resolution, which proclaimed that for ending the exploitation of masses, the political freedom must be inclusive of the real and economic freedom of the citizens.[8]

The Directive Principles of State Policy in the constitution has to be read in conjunction with that of the fundamental rights. The drafters of the Indian constitution have placed a higher value on the objective of achieving socio-economic justice but there was no prioritization among the DPSPs and the fundamental rights in the constitution. But the major issue as was also raised in the Sapru committee report was with respect to the justiciability of directive principles. After a long debate and consultation in the committee, the Irish model was adopted in the Indian constitution. It states the difference between the justiciable fundamental rights and the non-enforceable and justiciable directive principle of state policy. The rationale behind keeping the directive principles as non- justiciable is two-fold:

  1. The drafters of the Indian constitution intended to leave some amount of discretionary power to the legislature, on the matter concerned with the social and economic justice and the ay that they choose to achieve the aim of the justice. There was no approval in the debates to bind the legislature in the strict constitutional provisions and therefore unenforceable directive principles of state policy was adopted in the constitution.
  2. The second rationale for distinguishing binding fundamental rights with that of the unenforceable directive principles is the scepticism that the member in the constituent assembly had on the judiciary and they did not want to create an impact of the same on the social welfare legislations and justice in the society.[9]

The drafting of Article 21 in the constitution is also highly influenced by the drafting of the directive principles of state policy. There were socialist convictions among some of the members of the assembly but in the end, there was a separation of the justiciable rights from the non- binding directive principles. The scope of Article 21 in the constitution was restricted to the phrase ‘procedure established by law’ which provides the final authority to the legislature to decide the procedure that can infringe the liberty provided to the citizens under Article 21 of the constitution. It has been held in one of the cases that the term law in Article 21 of the constitution cannot be construed as the principles of natural justice, rather they are the procedure established by the legislature.[10]

To make it more unambiguous, the drafters of the constitution thought it prudent to insert certain provisions in the constitution to make the difference between the fundamental rights and the directive principles in terms of their justiciability. There are provisions in the Constitution like Article 32 which clearly provides that whenever there is any violation of the fundamental rights of the citizens they have a right to move to the Apex Court of India.[11] It is a guarantee for the enforcement and protection of fundamental rights. Article 226 of the constitution further extends the jurisdiction to the High Court for the same also.[12]

While on the other hand, Article 37 of the constitution states clearly that the directive principles of state policy are not enforceable by the courts of India but they are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in the administration of the country.[13] This provision in the constitution clearly prevents judiciary to interfere in the enforcement of the directive principles of state policy.

Due Process Of Law And Justice

The concept of the due process of law derives its origin in the English law. It is the rule of law that states that no individual can be deprived of its personal life, liberty or property without a prior intimation or notice and without an opportunity to defend himself as per the law stated in the constitution.[14] The application of this due process of law can be divided into two stages which are,

  1. Substantive due process of law
  2. Procedural process of law.

These stages have been extracted out of the divisions in the law itself. Law can be divided into two parts i.e., substantive law, which defines the rights, obligations or conduct of the citizens and the procedural law, which helps in enforcement of those rights or obligations and seeks to redress the violation of the substantive law.

In India, it is the constitutional and a fundamental guarantee that the legal proceedings will be free and just and everyone will be provided with an opportunity to be heard and to be given a notice of intimation of the proceedings against him.

It is also one of the guarantees under the Indian constitution that law made under the constitution cannot be unreasonable, arbitrary or capricious. Due process of law is that principle which states clearly that the legal rights of the person have to be requested under all the possible circumstances. As per this principle, even the government or the ruling authority is subservient to the law made by it and cannot violate the same. This principle of due process of law imposes some of the limitations to the law and the legal proceedings and, also on the judiciary to protect the enforcement of justice, fairness and liberty of the individuals.

The first stage that is the stage of substantive due process of law, states that the concept of due process of law, as the name suggests, is not only related to the enforcement of the procedural laws and rights, but it should also aim to protect the basic substantive rights of the citizens. Substantive rights as it can be defined in the most generalized manner are those rights which endow upon the individuals the authority to take actions in the way that they want to take. These are rights like freedom of speech and religion etc. in the constitution of India which are the substantive rights and are required to be protected by the due process of law. It is not only the appropriate procedures by which the government or the state can take away the life, liberty and freedom of the citizens, but this due process of law can also provide a guarantee to the citizens, that without a reasonable justification the government cannot curtail the life or liberty or freedom of any person irrespective of the procedures being taken by the government to do the same.

The jurists who support this concept of due process of law supports the fact that no procedure can be justified if it is being used by the state, to unjustly deprive a person of his basic human liberties and the concept of due process of law was intentionally written in wider terms to give the Court flexibility in interpreting it.[15]  This depicts that in India also we have reasonable and fair law and justice prevails. The case of Maneka Gandhi makes it clear that in India, all the procedures have to go through the test of constitutional reasonableness.[16] And the procedure that is lacking the rationale and such fairness with reasonableness, is void. When a procedure established by law is arbitrary and unreasonable then it is not a procedure established by law as per the constitution. The government of the state cannot be given unfettered and unregulated power to curtail the liberty and freedom of any person. To deprive a person of his “personal liberty” and to be a valid one the procedure should complete and pass through all the requirements of Article 14 and 19 of the constitution.

The views are personal.

Image Courtesy: The School of Life.

This is the first part of a two-part series. The second part can be accessed here.


The Author is an Associate at Trilegal and holds a B.B.A.LL.B (Hons.) degree from National Law University Jodhpur.



[3] John Rawls, Justice as Fairness- A Restatement, Erin Kelly (ed.), Universal Law Publishing Co. Pvt. Ltd., 2004.

[4] John Rawls, Political Liberalism 217 (1993).

[5] Supra Note, 4, at 10.

[6] Granville Austin, The Indian Constitution: Cornerstone of A Nation, Oxford University Press, 1999.

[8] Resolution on Fundamental Rights and Economic and Social Change, March 1931, Karachi.

[9] Rajeev Dhavan, Law as Struggle: Public Interest Law in India, 36 JILI 302 (1994), at 312-314.

[10] ADM Jabalpur v Shivakant Shukla, AIR1976SC1207.

[11] Article 32, The Constitution of India.

[12] Article 226, The Constitution of India.

[13] Article 37, The Constitution of India.

[14] Robert E. Riggs, ‘Substantive Due Process’ 1990 Wis. L. Rev. 941.

[15] Mahabir Prashad Jain, M.P. Jain Indian Constitutional Law, 6th ed., vol. 1, LexisNexis Butterworths Wadhwa Nagpur, 2010.

[16] Maneka Gandhi v. Union of India, AIR 1978 SC 597.


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