THE FIRST ANNUAL DR. K.R.

NARAYANAN

MEMORIAL LECTURE

AT JAMIA MILLIA ISLAMIA UNIVERSITY

NOVEMBER 13, 2007

THEME: PROBLEMS OF SOCIAL INEQUALITY AND POSSIBILITIES OF

JUDICIAL INTERVENTION

I am indeed happy and feel privileged to give the First Annual

Memorial Lecture named after Dr. K.R. Narayanan, at the instance of

Jamia Millia Islamia University. This University is a prestigious institute.

This institute, which was originally started at Aligarh in United Provinces in

1920, became a centre of education. In 1928 Dr. Zakir Husain became the

Vice-Chancellor of the University and his contribution to this University was

phenomenal. So many eminent personalities have been associated with

this University. Father of our nation Gandhiji wanted to see this institute to

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become a great centre of learning. This University had survived the turmoil

that prevailed in the pre-independent India.

Dr. Kocheril Raman Narayanan was born in a poor family in a village

Uzhavoor in Kottayam district in the State of Kerala. He was a very bright

student and passed out successfully his matriculation. He joined the CMS

College Kottayam for his graduation. A freedom fighter and social activist

helped him to pursue his studies. Later, with the help of TATA institute he

continued his studies in London School of Economics and obtained his

B.Sc. (Econ.) degree. When he returned from London, his future was a

baffling one and his teacher Harold Laski of the London School of

Economics gave him a letter of introduction to Pandit Jawahar Lal Nehru,

who was also a former student of Harold Laski. Dr. K.R. Narayanan made

repeated attempts to meet Panditji who was then the Prime Minister of

India. Lastly, he got an opportunity to meet him in the Parliament House.

He had a brief interview with Panditji. At the end, he gave the letter of

Harold Laski to Panditji and quickly walked out of the room. While he was

moving through the corridors of Parliament House, he saw Panditji

beckoning him to come back and asked “Why did not you give this letter to

me earlier?” He replied, “I am sorry. I thought it would be enough if I just

handed it over while leaving.” Panditji asked him to join the Indian Foreign

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Service. Then started the bright career of Dr. K.R. Narayanan as a

member of Indian Foreign Service. He worked as an Ambassador in

various countries and retired from Indian Foreign Service in 1978. Later,

he became the Vice-Chancellor of the Jawahar Lal Nehru University. He

held various positions with utmost satisfaction. He was a scholar of

eminence, great leader and prolific writer. As an Advocate, I had the

opportunity to meet him frequently. Once he told that when the Chinese

Government celebrated the 50th year of Panchsheel various world leaders

were invited to Beijing and there he was treated as the most important

person who attended the conference – the conference in which world

leaders were present. His commitment to social justice and principles of

the equality and rule of law was known to all. I congratulate the Jamia

Millia Islamia University for having thought it fit to have a memorial lecture

in the name of Dr. K.R. Narayanan.

The Indian Constitution embraces the goal of achieving social equality

in express terms. The constitutional scholar Granville Austin, in his

magisterial work, “Working a Democratic Constitution: the Indian

Experience”, states that probably no other Constitution in the world “has

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provided so much impetus towards changing and rebuilding society for the

common good”.

Indeed, it is perhaps one of the most rights-based constitutions in the

world. Interestingly, around the same time, the Universal Declaration of

Human Rights (UDHR) also saw the light of day, in 1948. Article 1 of the

UDHR has become central to the functioning of the United Nations, and

recognizes that equality is the core value that lies at the very root of human

dignity. The reality of inequality, and its possible solution, is manifest in the

Preamble, followed by the Fundamental Rights and Directive Principles.

The Preamble makes explicit, the resolve to create a “socialist and

democratic republic” in order to secure political justice, equality, liberty and

dignity. Many of the principles espoused can also be found in the UDHR.

The principle assertion being that in order to obliterate social injustice,

upholding the dignity of the human personality is paramount. The Indian

Constitution, as a social document, seeks to foster this by striving to create

the requisite social, cultural, political and economic conditions that are

required to attain this noble goal. Its ideals are based on the grim

experience of colonialism, and India’s bitter struggle against that imperial

regime, which consistently violated the rights of the people of India, and

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worked relentlessly to create inequalities within the social strata. There was

intense and extensive social and economic discrimination due to irrational

prejudices, which resulted in certain sections of society to suffer severe

handicaps in practically all walks of life. However, it is also true that the

British brought with them certain reforms that were largely influenced by

Western thought. Notable among these, were the abolition of slavery in

1843, abolition of the practice of Sati in 1829 and prevention of female

infanticide. However, despite these measures, the problems of social

inequality were deep rooted in India, and at that time, possibilities of judicial

intervention were limited.

After the adoption of our Constitution, large scale social and

economic changes have taken place. It is true that in many areas, we

could not achieve the desired results, but even then the powers of law and

legislation have tremendous impact in society. Law is essentially marginal

to the process by which society changes; law is an effect rather than a

cause. It is only within the limits given there that change can be

accomplished. Legislation is always based on the quintessence of the

public opinion. But inevitably, it often lags behind the real life and Goethe

once said of law as the rule of dead over the living. This is too a

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conservative view and sees law as passive and reactive, something that

accommodates change rather than causes it.

India after attaining independence by a series of social welfare

legislations based on the mandate of our Constitution proved that law could

be active and dynamic. No longer was the State seen as standing to one

side of the society and performing the role of a night watchman, but as a

manager of social and economic interests. The State has become the

centre of political and economic power and source and distributor of basic

legal rights and material standards. The operation of law with numerous

regulations brings about change in the society.

Society is constantly in motion, economies strengthen and fail,

technology moves on, new social institutions emerge, even there is

fundamental alteration of the structure of the society. We cannot point out

any single legislation or judicial decision which has changed society or its

relationship between members just as in America by single stroke of pen

Abraham Lincoln freed the slaves of America.

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 Law and legal system have impact on the changes either originating

from within or from outside. But these social changes are easier if the

commitment to an activity is not high as here the law can tip the balance in

favour of other behaviour. Sometimes it is difficult and uncertain process.

See for example, the tribal laws made for restoration of their lands from the

persons who are in illegal occupation. Many members of the tribal

community owned lands and their lands were usurped by cheating them

and law was enacted to restore those lands. It was partly implemented in

the sense that they filed applications for restoration and the Revenue

Divisional Authorities passed orders for restoration of these lands. But the

execution of these orders was resisted by the trespassers who formed a

powerful section of community. The law had ultimately to be abandoned

and new law was enacted just to appease the Tribals with mirage that they

would be given lands freely; a promise which cannot be fulfilled for various

reasons.

Any goal of law, must be realisable through law, that is, the change

required must be capable of being communicated to the bulk of the people

and must have a compatibility with the existing values. It is probably

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difficult to stop people from doing what they have always thought right. The

required change should be capable of being implemented.

Law has wide variety of powers to enforce law, much more than the

sanction under criminal law. Freund has categorized manifestations of

government power to realise law; the police force, taxation system, the

ability to manage public property and resources. For example, the pollution

from exhaust emissions for motor vehicle could be checked not only

prohibiting or modifying it, but by widening the categories of tortuous

liability to allow claims to those who are affected by setting standards in

manufacture or by negative financial incentive1.

There are also wide varieties of implementative techniques to

translate a legislative aim into a social behaviour. Law does not work only

by straightforward command; it defines, gives status and rights and

selectively distribute burdens and incentives. It sets up facilities and

standards, creates disabilities and operates in private sphere to arrange

things; it sets up agencies to operate the system. Law thus has

spectacular effect to bring about social change. But the change through

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law is difficult to plan, complex to execute and often uncertain in its

consequences.

Justice is often understood, in a narrow sense, to mean justice

according to law or justice of law. But, nowadays, the word “justice” is

used in a wider sense and includes its different forms like social, economic

and political justice. The concepts of social justice are varied, but equality

is integral to most contemporary theories of justice. The urge for social

justice gathered momentum when India became an independent

sovereign republic. The concept of social justice deals with all aspects of

human life. Harold J. Lasky remarked “that the more equal are the

social rights of citizens, the more likely they are to be able to utilize

their freedom in realms worthy of exploration.” The purpose of social

justice is to maintain or to restore equilibrium in the society and it envisages

equal treatment of equal persons in equal or essentially equal

circumstances. The social solidarity is brought about by the concept of

social justice.

The framers of our Constitution then toiled hard to inject equality,

justice and good conscience at the heart of the social system, since any

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thought of social betterment of the nation would be a teasing illusion if the

requisite social conditions based on social equality did not exist.

In the Constituent Assembly, on 25th November, 1949, Dr. Ambedkar

stated:

“On the 26th January, 1950, we are going to enter upon into a life of

contradictions. In politics we will have equality and in social and economic

life we will have inequality. In politics we will be recognizing the principle of

one man one vote and one vote one value. In our social and economic life,

we shall by reason of our social and economic structure, continue to deny

the principle of one man one value. How long shall we continue to deny

equality in our social and economic life? If we continue to deny it for long,

we will do so only by putting our political democracy in peril. We must

remove this contradiction at the earliest possible moment else those who

suffer from inequality will blow up the structure of democracy which this

Constituent Assembly has so laboriously built up.”

Thus, realizing that the masses had suffered for long, and recognizing

the reality of prevailing social inequalities, the founding fathers placed the

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mandate of social equality at the helm of the Constitution, and attempted to

create a system where every member is empowered to participate in the

liberties and the freedom provided under the Constitution.

Pandit Nehru embodied the essence of this goal in the following words

to the Constituent Assembly:

“The first task of this Assembly is to free India through a new

Constitution, to feed the starving people and to clothe the naked masses

and to give every Indian the fullest opportunity to develop himself

according to his capacity”.

With this noble aim, the founding fathers inserted the Fundamental

Rights and Directive Principles in the Constitution, which find their roots in

the Constitution of India Bill, 1895 and the 1931 Karachi Resolution

respectively. They form the soul of this living document, and connect

India’s past, present and future into one single thread, giving greater

credence to the pursuit of social equality.

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 In the words of Justice Learned Hand, of the United States’ Supreme

Court:

“… such constitutional limitations arise from grievances, real or

fancied, which their makers have suffered and…they withstand the winds

of logic by the depth and toughness of their roots in the past.”

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.

In M. Nagraj v. Union of India (2006) 8 SCC 212, the Supreme Court

explained the concept of social justice as flowing out of the Fundamental

Rights in the following words:

“…Social justice is one of the sub-divisions of the concept of justice. It

is concerned with the distribution of benefits and burdens throughout a

society as it results from social institutions - property systems, public

organisations etc. The problem is - what should be the basis of

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distribution? Writers like Raphael, Mill and Hume define ‘social justice’ in

terms of rights. Other writers like Hayek and Spencer define ‘social justice’

in terms of deserts. Socialist writers define ‘social justice’ in terms of need.

Therefore, there are three criteria to judge the basis of distribution, namely,

rights, deserts or need. These three criteria can be put under two concepts

of equality - “formal equality” and “proportional equality”. “Formal equality”

means that law treats everyone equal and does not favour anyone either

because he belongs to the advantaged section of the society or to the

disadvantaged section of the society. Concept of “proportional equality”

expects the States to take affirmative action in favour of disadvantaged

sections of the society within the framework of liberal democracy. Under

the Indian Constitution, while basic liberties are guaranteed and individual

initiative is encouraged, the State has got the role of ensuring that no class

prospers at the cost of other class and no person suffers because of

drawbacks which is not his but social… 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.”

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 Thus, the Fundamental Rights, through Articles 14, 15, 16 and 17

reflect the right to equality in its various aspects and aim to foster social

equality by empowering the citizens to be free from any form of coercion or

restriction by the state or private people. The Directive Principles aim at

creating an egalitarian society whose citizens are free from the abject

physical conditions that had hitherto prevented them from fulfilling their best

selves. They are the creative part of the Constitution, and fundamental to

the governance of the country. It is interesting to note that at the time of

drafting of the Constitution, some of the Directive Principles were part of

the declaration of fundamental rights adopted by the Congress party at

Karachi. Mr. Munshi had even included in his draft list of rights, the “rights

of workers” and “social rights”, which included provisions protecting women

and children and guaranteeing the right to work, a decent wage, and a

decent standard of living. The primordial importance of Part IV can be

understood by the following words of Dr. Ambedkar, when he insisted on

the use of the word “strive” in Article 38:

“We have used it because it is our intention that even when there are

circumstances which prevent the Government, or which stand in the way

of the Government giving effect to these directive principles, they shall,

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 even under hard and unpropitious circumstances, always strive in the

fulfillment of these directives. … Otherwise it would be open for any

Government to say that the circumstances are so bad, that the finances

are so inadequate that we cannot even make an effort in the direction in

which the Constitution asks us to go.”

Thus, the enforceability of measures relating to social equality was

never envisaged as being dependent only on the availability of state

resources. Going further, though the Fundamental Rights and Directive

Principles may resemble Western constitutional provisions, they can be

distinguished in their innate desire to end the inequities of traditional social

relations and enhance the social welfare of the population. Other provisions

furthering social equality include Article 334, and those relating to the

upliftment of Anglo Indians. Again, Article 23 prohibits the trafficking of

human beings and other forms of forced labour and Article 24 protects

children under the age of fourteen from enduring the hazards of

employment in difficult conditions. Freedom of Religion, freedom of

conscience and free profession, practice and propagation of religion;

freedom to manage one’s religious affairs; and freedom to attend religious

instruction or religious worship in certain educational institutions has been

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ensured through Articles 25, 26, 27 and 28 of the Constitution. Articles 29

and 30 deal exclusively with the Cultural and Educational Rights of

Minorities while ensuring equal opportunity for all citizens to take admission

in any educational institution.

The Courts have taken recourse to these provisions often, in their

crusade to bring justice to the poor. Through innovative and creative

strategies, they have expanded the scope of the Fundamental Rights, in

order to render justice to women, children, bonded laborers and other

oppressed sections of society. The Courts have also played a significant

role in bridging the divide between the colonial legal system and the value

based jurisprudence of our Constitution. Notably, over the decades, the

Supreme Court has affirmed that both the fundamental rights and Directive

Principles must be interpreted harmoniously. It was held, in Kesavananda

Bharati v. State of Kerala, (1973) 4 SCC 225, that the directive principles

and the fundamental rights supplement each other and aim at the same

goal of about a social revolution and the establishment of a welfare State,

also envisaged in the Preamble. Furthermore, in Unni Krishnan, J.P. v.

State of A.P., (1993) 1 SCC 645, Justice Jeevan Reddy declared, at p. 730,

para 165, that:

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 “The provisions of Parts III and IV are supplementary and

complementary to each other and not exclusionary of each other and that

the fundamental rights are but a means to achieve the goal indicated in

Part IV”.

This would go a long way to help create the necessary social

conditions that would ultimately result in social equality.

The Right to Education

The theory of the complementarities of rights and their harmonious

nature has laid the foundation for the realization of primary education being

declared a fundamental right, through two judgments of the Supreme

Court.

The use of education as tool for achieving socio-political justice was

largely ignored until the judgment in Mohini Jain v. State of Karnataka

(1992) 3 SCC 666. The Court held that:

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 “the right to education flows directly from the right to life” as “the right

to life and the dignity of an individual cannot be assured unless it is

accompanied by the right to education”, and “the fundamental rights

guaranteed under Part III of the Constitution of India, including the right to

freedom of speech and expression and other rights under Article 19 cannot

be appreciated and fully enjoyed unless a citizen is educated and is

conscious of his individualistic dignity”.

The Supreme Court also referred to the UDHR principles and to Article

41 of the Constitution. Later, in Unni Krishnan, the Court took support from

UDHR and Article 13 of the International Covenant for Economic, Social

and Cultural Rights and for the first time articulated education as a “social”

right.

The Right to Health

Article 47 declares that the “State shall regard the raising of the level

of nutrition and the standard of living of its people and the improvement of

public health as among its primary duties”. The right to health also has its

reference in Articles 38 (social order to promote the welfare of the people),

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39(e) (health of workers, men, women and children must be protected

against abuse), 41 (right to public assistance in certain cases, including

sickness and disability) and 48A (the State’s duty to protect the

environment) of the directive principles. The right to health has also been

articulated as an integral part of the right to life. In Consumer Education

and Research Centre v. Union of India (1995) 3 SCC 42, the Supreme

Court dealt with the health hazards faced by workers engaged in the

asbestos industry. Reading concurrently Article 21 with Articles 39(e), 41

and 43, the Supreme Court held that

“the right to health ... is an integral facet of a meaningful right to life”

(para 24).

The Supreme Court and Article 21

The Right to Life enshrined in Article 21 has also been interpreted to

include the right to be free from degrading and inhuman treatment, the right

to integrity and dignity of the person, and the right to speedy justice.

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 In the words of Justice Bhagwati, in Francis Coralie vs. Union Territory

of Delhi (1981) 1 SCC 688:

“we think that the right to life includes the right to live with human

dignity and all that goes along with it, namely the bare necessities of life

such as adequate nutrition, clothing and shelter over the head and facilities

for reading, writing and expressing oneself in diverse forms.”

In Maneka Gandhi v. Union of India (AIR 1978 SC 597), it was stated

by the Supreme Court that equality is a dynamic concept with many

aspects and dimensions and it cannot be imprisoned with traditional and

doctrinaire limits. Thus, it is the Courts that have given these Rights and

Principles their real meaning. They have adopted substantive equality, and

aimed for a result oriented approach. This approach tends to encourage

the downtrodden and underprivileged to redeem themselves of previous

inequalities, and has resulted in greater judicial activism, and has opened

new vistas for judicial innovation and creativity, in order to fulfill the

mandate of achieving social equality. Commenting on judicial activism, the

scholar S.P. Sathe, in his work, “Judicial Activism in India”, opines that the

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judicial process has changed from an adversarial, bilateral process to a

polycentric, conflict-resolving process.

Enforcement of social rights through judicial intervention can also be

seen in other countries such as Argentina, Brazil, Colombia, Finland, Latvia

and South Africa, as well as almost all regional and international human

rights courts and quasi-judicial committees. In Social and Economic Rights

Action Centre (SERAC) v. Nigeria, the African Commission on Human

Rights drew on the UN Committee on Economic, Social and Cultural

Rights’s General Comment No. 4 on the Right to Housing to condemn

forced eviction of the Ogoni people in Nigeria, while in Plan de Sánchez v.

Guatemala, the Inter-American Commission on Human Rights quoted the

same General Comment as it ordered Guatemala to implement an

adequate housing program as part of a remedial package for survivors of a

1982 massacre.

Therefore, timely judicial intervention has made social rights

adjudication in India vibrant and dynamic, leading to the enforceability of

rights such as the right to food, the right to education, and the right to

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health, even though they have not been included a express fundamental

rights in the Constitution.

Bonded Labor

Bonded labor in all its forms, of children or adults, expressly violates

the Bonded Labour System (Abolition) Act, 1976 and in the case of

children, the Children (Pledging of Labour) Act, 1933, as well as certain

constitutional provisions, namely, Article 23 (1), Article 24 and Article 39.

The former prohibits the creation of bonded labor agreements and contains

penal offences against people engaging in attempts to engage in bonded

labour, and the latter penalizes any parent, middleman, or employer

engaged in making or executing a pledge of a child’s labor.

However, the implementation of these legislations was often callous,

requiring the intervention of the Supreme Court to deal with this serious

issue, which was fast emerging as a pressing concern. Thus, in People’s

Union for Democratic Rights v. Union of India [Asiad Workers’ Case], AIR

1982 S.C. 1473, the Supreme Court defined the ambit of “forced labour”.

According to the Court, “forced labour”, includes any situation “where a

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person provides labour or service to another for remuneration which is less

than minimum wage . . .”

Supsequently, in Bandhua Mukti Morcha v. Union of India, (1984) 3

SCC 161, the Supreme Court embarked on the process of identifying,

releasing and rehabilitating bonded labourers, ensuring minimum-wage

payments and availability of wholesome drinking water and setting up dust-

sucking machines in the stone quarries. These orders of the Court were

monitored through a monitoring agency, which would check the

implementation of those directions.

These interpretations by the Supreme Court were powerful steps

towards the realization of a social order based on equity.

Rights of Indigenous People

The Indian Judiciary has been at the forefront of protecting the rights of

tribal communities, in order to promote social justice. In Samantha v. State

of A.P. (1997) 8 SCC 191, the Supreme Court observed that:

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“Agriculture is the only source of livelihood for scheduled tribes, apart from

collection and sale of minor forest produce to supplement their income.

Land is their most important natural and valuable asset and imperishable

endowment from which the tribals derive their sustenance social status,

economic and social equality and permanent place of abode and work and

living. It is a security and source of economic empowerment. Therefore,

the tribes too have great emotional attachment of their lands. The land, on

which they live and till, assures them equality of status and dignity of

person and means to economic and social justice and is a potent weapon

of economic empowerment in a social democracy.”

Thus, with this, the Court opened another vista for judicial intervention, and

ensured that even the forest communities enjoy the rights and protections

guaranteed to them under our Constitution, such that slowly but surely, we

would achieve the sagacious ideal of social equality.

Gender Justice

Instances of sexual harassment at the workplace were on the rise, and

were often seen as a tool to deny women equal opportunity at work. The

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judgment of the Supreme Court in the Vishaka Case [Vishaka v. State of

Rajasthan (1997 6 SCC 241)] ushered in judicial activism in the area of

gender justice, thereby ensuring social equality at the workplace. The

Court, assisted by international conventions and norms which encapsulate

these rights, such as the Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW), stated that:

“Sexual harassment of women in the workplace results in the violation of

the fundamental rights of gender equality and the right to life and liberty; It

is a clear violation of the rights under Articles 14, 15, 21…and 19(1)(g)…

and; Gender equality includes protection from sexual harassment and the

right to work with dignity, which is a universally recognized basic human

right.” It was also observed that, “the absence of enacted law to provide for

the effective enforcement of the basic human right of gender equality and

guarantee against sexual harassment…particularly at workplaces…”

Thus, the judgment recognized that in the absence of legislation dealing

with such situations, it was imperative for the judicial process to intervene

and facilitate the process.

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Land Reform

In the area of land reform, the Supreme Court has championed the cause

of promoting social equality that the British had zealously kept away,

fearing that any such social change would pose as a threat to their rule.

One of the earliest examples are the cases of Shankari Prasad v. Union of

India [AIR 1951 SC 458], in 1951, and the Kameshwar Singh case [AIR

1952 SC 252] of 1952, where the federal vestiges of the British rule were

finally removed from the social stratum, and land reform measures were

upheld by the courts, since they furthered the goal of a social order that

found foundation in social equality. The courts were well aware of the

issues of social inequality and made constructive efforts to promote

equality in means of livelihood and in equal ownership and control of

material resources of the community, such that they are disbursed to serve

the common good. These early decisions reflect a progressive attitude that

greatly contributed to social change and promotion of social equality and

justice, as enshrined in Article 38 of the Constitution. The Courts ensured

that the Indian judiciary never stood in the way of the implementation of

both radical and welfare measures by the Legislature and Executive.

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Rather, it has ensured that a number of social legislations made for the

benefit of the poor and downtrodden are implemented in the proper spirit.

I would like to conclude with the following words, by Dorothy Day, an

American social activist, who espoused the cause of the impoverished and

underprivileged:

“What we would like to do is change the world- And, by fighting for better

conditions, by crying out unceasingly for the rights of the workers, of the

poor, of the destitute…we can, to a certain extent, change the world; we

can work for the oasis, the little cell of joy and peace in a harried world. We

can throw our pebble in the pond and be confident that its ever widening

circle will reach around the world.”

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