THE INDIAN CONSTITUTION: ABSTRACTION OF JUSTICE – [PART-II]

-by Atyotma Gupta

This is the second and concluding part of the two-part series. Previous part can be accessed here.

Article 32: Is It Just

As mentioned above, Article 32 of the constitution is the remedial provision for the violation of fundamental rights and enshrines a right to the aggrieved to approach the apex court to seek the protection of his/her fundamental rights. It is the provision which redressed the violation of fundamental rights and therefore was referred to as the heart and soul of the constitution.  The Indian Supreme Court has been empowered under this provision to grant a range of remedies like directions, writs, orders etc. The court also has the discretion to determine the procedure by which the citizens are supposed to apply for the violation of fundamental rights. Earlier the appropriate proceedings under section 32of the constitution were only those in which the aggrieved has a direct encroachment and infringement of his/her fundamental rights. It was called as the strict standing or a strict locus standi and which has been borrowed from the Anglo American tradition. Some of the examples for the same can be the decision of the court in the case of Chiranjit Lal v. Union of India[1]  in which it was held by the court that a shareholder of a company does not have any locus standi under Article 32 of the constitution to file a petition in the court to enforce and protect Article 19(1)(f) of the constitution. The reason was the separate and artificial status provided to the corporate entities and when there is a violation of the fundamental rights of the corporate entity there is no violation of the same for the shareholder.

Applying the same reasoning, in the matter of G.C. College Silchar v. Gauhati University[2]  it was held by the court that since the impugned resolution does not affect the fundamental rights of the petitioners are not violated and affected.in any way, and therefore there was no locus standi with the petitioners to file the present petition under Article 32 of the constitution.

There are many other judgments that clearly show that in earlier times the courts were not allowing the petitions unless it is established in the case that there is a clear and direct violation of the fundamental rights of the petitioners. But when the perspective of the courts changed they started allowing petitions challenging the violation of the fundamental rights of any of the disadvantaged groups in the society or for some other individuals.[3]

Challenge: Equality And Justice

The basis of challenging this policy of reservations by the government was the enforcement of the fundamental rights provided in Article 14 and 15 of the constitution. It was the contention that although the reservation policy which was intended to be a means of social engineering has now become the way of reparation. The reservation scheme of the government was alleged to be contrary and violative of the basic structure of the constitution as it was infringing on the rights provided in Article 14 and 15 of the constitution. Another ground for challenging this scheme of the government was to allege it as the vote collecting scheme and being completely arbitrary and unreasonable as the identification of people from OBCs, SC, and ST was on the basis of caste.

But the question that arises here is that has this scheme of the government able to achieve the aim by which it was made and introduced to the society, i.e. the aim of achieving social justice and bringing the downtrodden people to the mainstream of the society or is it even closer to achieve this? In my opinion, it has not achieved the objective for which it came into force and it is not operating in the same spirit in the society as it was made. It is very difficult to rationalize caste-based reservations in a country like India which claims to be a secular country. For example, suppose you came across a person who is from a very higher caste, your first presumption would be that he is a well-settled and a financially strong person. While on the other hand, if you come to know that a person is from a scheduled caste, you portray that person as a person from a poor family. There are presumptions on the basis of the caste of a person about his financial position and which is one of the reasons for the Indian government to bring out a reservation policy also. But there is no empirical research being conducted to show the relationship between caste and the financial position of a person. However, still, caste has been laid out like a parameter to weight the social and economic condition of a person.

Caste of a person is one of the prohibited criteria in the constitution for discriminating persons. Then on what basis, it has qualified as a parameter to differentiate economically and socially backward and forward people. Undoubtedly, it has been the aim of the government to provide equal access to each and every section of society. But there are certain amendments to the constitution of India made in furtherance of the same aim but they have failed to achieve the desired results.

What Should Be The Alternative?

In a country like India, where there are a lot of section in the society that are deprived of even the basic amenities of life and are not represented adequately in the society, reservation is not a bad policy to make. As it has been also stated by the eminent jurist John Stuart Mill, in his theory of utilitarianism, which the actions of the government should be in furtherance of cultivating a general character of nobility in the society and should reap long term benefits for the people, and the state should defer from providing instant sensual pleasure if it is deriving a loss for the society in a long term.[4]

It is with this objective only that the Indian government has enacted the reservation policy. But has ti been able to achieve the same? It does not seem so. It is because of the manner it is operating and which is required to be changed. It should not be the caste-based reservation but the scheme of community-based reservations. The first and foremost objective in the reservation policy of the government should be the physiological upliftment of the people. The presumption regarding the caste of a person should not persist in a country. Secondly, the individuality of persons should be maintained and self- sufficiency, as there is no alternative to economic growth and modernization. Thirdly, the personalized attention to each and every section of the community. The real root or the real reason for the backwardness has to be ascertained on the basis of empirical studies and therefore those parameters should be considered. No status, no job, no post, no admission should be given to anyone on the virtue of the place of his birth, caste, creed, religion or sex. These re not the parameter to be considered for the backwardness of a person or a section of the community. They are barred to be considered as the same in the constitution. “Equality in opportunity” should be provided to the citizens and should be imbibed in every post of the country.

Author’s Note

Since the adoption of the Indian Constitution in 1950, the Indian judiciary, as has been led by the apex Court of India, has greatly expanded its policymaking authority. They have expanded the interpretation of any provision of the constitution so as to achieve the aim of providing social and economic justice to the people in the country. The leading example here is the expanded interpretation of Article 21 of the constitution. Right to life and personal liberty has been interpreted to include a lot of rights which are not separately provided in the constitution but are fundamental for the life of a person. Article 32 of the constitution also has been provided with a different meaning to further the aims of providing justice to the persons who are unable to approach the court for the violation of their fundamental rights.

There are three important changes that emerged due to the expanded interpretation by the judiciary of the provisions of the constitution:

(1) The judiciary can now enforce and protect a greater number of rights.

(2) Due to a liberal interpretation of Article 32 of the Constitution, PILs are allowed to be filed in the court for the protection and enforcement of the rights of sections of the society who cannot approach the court directly due to some extraneous circumstances.

(3) Courts have gained a significant role in the formation and enforcement of the socioeconomic policy.

The widespread role of the courts in India in the interpretation of the provision of the constitution has helped a lot to achieve the aims of social and economic justice. The Supreme Court enjoys widespread support among Indian citizens as they approach the judiciary in huge numbers to obtain various reliefs against the policies made by the state or the government. The judiciary is also viewed by the public as one of the least corrupt institutions of the state. Further, the judgments by the Supreme Court on the enforcement of socio-economic rights have brought about a positive transition in the litigation for the right to food, for example, it provides midday meals to school children across India.

The Preamble of the Constitution of India uses two concepts which impose an obligation on the government to provide social welfare, which is the provision of social and economic justice to the citizens. Under the obligation of providing social justice with the state is required to ensure that the dignity of socially excluded and downtrodden groups of the society is not violated by the powerful section of the society and they are treated on an equal footing with others. It was said by the Supreme Court in the case of Consumer Education and Research Centre v. Union of India[5]

“Social justice, equality and dignity of the person are the corner stones 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 the personality of every citizen.”

The views are personal. 

Image Courtesy: 1000-word philosophy.

ABOUT THE AUTHOR

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

[1] Chiranjit Lal v. Union of India, 1951 AIR 41.

[2] G.C. College Silchar v. Gauhati University, Writ Petition (civil) 263 of 1972.

[3] Clark D. Cunningham, Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience, 29 J.I.L.I 494 (1987) 498–99.

[4] Barry S. Clark and John E. Elliott , John Stuart Mill’s Theory Of Justice, Review Of Social Economy, Vol. Lix, No. 4, December 2001.

[5] Consumer Education and Research Centre v. Union of India, AIR 1995 SC 922.

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