Social Justice & Legal Concepts
Author: Somya Agrawal
SOCIAL JUSTICE
Since the beginning man has been a social animal and had carried out his activities with the help of society. There have always been irregularities, oppression, injustice prevalent in every era for whose eradication and norms are set forth, and strict compliance to it is being watched by the people in authority, to say State at large. There are various theories of renowned sociologists about the origin of human beings, and every theory at some point considers the value of society in individual development.
The word ‘society’ has several meanings. A vast variety of definitions of the word ‘society’ exists and has a range of meanings extending far beyond sociology, including history, economics, and political science. One of the sociologists, LT. Hobhouse (1908) defined society as “tissues of relationships”. R.M. Maclver (1937) also defined it as a “web of social relations which is always changing”.
CONCEPT OF SOCIAL JUSTICE
The concept of social justice dates back to a few centuries, yet it is always present in the society in a primitive form involving the deterrent use of force in securing it, such as if anyone is held for doing an illegal work his hands were cut off as a punishment that is "an eye for an eye"(from the Hammurabi’s code)[1].
The term social justice was coined in 1840 by a Sicilian priest, Luigi Taparelli d'Azeglio[2], and given prominence by Antonio Rosmini Serbati in La Costitutione Civile Secondo la Giustizia Sociale[3] in 1848. In modern times, every government struggles to maintain social justice by hook or crook. No society can be static, and therefore there is a constant struggle to maintain peace and harmony among diverse people and increase the pace of national growth. The concept of social justice is a revolutionary step in the history of the world which provides meaning and significance to life and makes the rule of law dynamic.
According to the ideal state of Plato, social justice is perceived to be maintained by the ruler, and the core of every society depends upon it. Russossieu also signifies the concept of social justice in his theory of majoritarianism. In Manusmriti, the authoritative script of the Indian society establishes social justice by dividing the society into different castes and assigning them particular work though this classification has emerged to be perceiving conflicting opinions.
In modern times, 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 ideals of a welfare state emphasize the unceasing pursuit of the doctrine of social justice. The idea of a welfare state incorporates claims of social justice, which must be treated as cardinal and paramount.
Social justice is not a theoretical concept or a preposterous dogma. It seeks to do justice to all the citizens of the state and democracy. It must not show an excess of valour by imposing unnecessary legislative regulations and prohibitions, in the same way as they must not show timidity in attacking the problem of inequality by implementing necessary and reasonable regulatory measures at all. Constant efforts are needed to secure socio-economic justice, sustaining individual liberty and freedom subjecting them to reasonable restrictions put forth by the state in achieving the desired place.
Social justice is a pragmatic concept, though provisions are made in every nation for achieving it, it has to be implemented by the individual himself, and a process of self-check is needed. It has to be apparent on the face of society. Citizens zealous for their freedom and liberty must cooperate with democracy which seeks to regulate freedom and liberty in the interest of social good, but they must be able to resist the imposition of any restraints on individual liberty and freedom which are not rationally and reasonably required in the interests of the public good, democratically.
CONSTITUTIONAL MANDATE FOR SECURING SOCIAL JUSTICE
In India, the supreme authority governing the citizens, and the state is the Constitution of India. It was formed in November 1949 and enforced on 26 January 1950. Certain provisions in our Constitution were incorporated to maintain social, economic, and political justice. Dr. B. R. Ambedkar, the chairman of the constituent assembly, in one of his speech states that we are creating this Constitution for the benefit of the people and securing justice, and if it doesn’t serve this purpose then there is no need for it.[4] The Preamble[5] to the Constitution clearly states the words " Justice- socio, economic, political”, which also forms the basic structure of our Constitution and can't be withered with.
The social problem of our diverse culture, where some are treated as untouchables has received the special attention of the Constitution. Article 15 (1)[6] prohibits discrimination on any grounds of religion, caste, sex, race or place of birth. The state would be entitled to make special provisions for women and children, for the advancement of socially and educationally backward classes of citizens, and for the SC/STs. Also, a new provision is incorporated as sub-clause 6 to include economically weaker sections.
Article 19[7] enshrines the fundamental rights of speech and expression of the citizens of this country. The seven sub-clauses of Article 19(1) guarantee the citizens seven different kinds of freedom recognizing them as their fundamental rights. Article 19 as a whole furnishes a very satisfactory and rational basis for adjusting the claims of individual rights of freedom and the claims of public good by incorporating sub-clauses (2)(3)(4)(5) in the interest of the public and restricting the freedom given in seven sub-clauses of Article-19(1) (Anti- cessionary rights).
Articles 23 and 24[8] provide for fundamental rights against exploitation. Article 24, in specific, prohibits an employer from employing a child below the age of 14 years in any factory or mine or any other hazardous employment, and prevention of child labour is secured.
Article- 32[9], which is considered to be the heart and soul of the Constitution guarantees the right to Constitutional remedies against infringement of any fundamental right conferred in Part-3 of the Constitution.
Article 38[10] requires that the State should make an effort to promote the welfare of the people by securing and protecting as effectively as it may establish a social order in which justice -social, economic, and political, shall regulate all the institutions of national life.
Article 39(a) says that the State should secure that the operation of the law by promoting justice, equal opportunity, and provide free legal aid. It also has to ensure that the opportunities for securing justice are not denied to anyone on the basis of economic or other disabilities. The state should also ensure that the opportunities for securing justice are not denied to any citizen because of economic or other disabilities.
Judicial interpretation of social justice can be cited as the Supreme Court has firmly ruled in Balbir Kaur v/s Steel Authority of India[11] , that "the concept of social justice is the yardstick to the justice administration system or the legal justice and it would be an obligation for the Law Courts to apply the law depending upon the situation in a manner whichever is beneficial for the society”.
References:
[1]Eye for an eye, Hammurabi’s code https://www.ushistory.org/civ/4c.asp#:~:text=%22Hammurabi%2C%20the%20king%20of%20righteousness,a%20tooth%20for%20a%20tooth.%22 [2]Herberman, Charles. “Aloysius Taparelli’ The Catholic Encyclopaedia (New York: Appleton Company, 1913) [3]La Costitutione Civile Secondo la Giustizia Sociale https://www.rosminiinstitute.it/files/site_video_documento_file_120_507550116/Appunti%20quarta%20lezione.pdf [4]https://www.telegraphindia.com/culture/babasaheb-dr-br-ambedkar-not-just-architect-of-the-indian-constitution/cid/1764897 [5] Ref. Constitution of India [6] Ibid. [7] Ibid. [8] Ibid. [9] Ibid. [10] Ibid. [11] AIR 2000 6 SCC 493