Any form of discussion with regard to the role of Indian Judiciary in promoting access to justice must begin with the Constitution. Our Constitution delineates the enforceable fundamental rights and the non enforceable Directive Principles of State Policy, which the State is obliged to perform. The Preamble of our Constitution understands justice as having social, economic and political dimensions. Such all encompassing notion is based on Article 38(1) of the Constitution, directing the State to strive to secure and protect a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Dr. BR Ambedkar once said, continuing injustice in the social and economic spheres to be the greatest threat to the Constitution’s very survival.[i]
Under Article 37, the State is directed to secure various aspects of socio economic justice through non enforceable directive principles, which are fundamental in the governance of the country.[ii] Rule of law is another important feature of our Constitution. The validity of the decisions of the government can be challenged in the High Courts or in the Supreme Court and as such, various writ remedies such as mandamus, certiorari, prohibition, quo warranto.
The role of judiciary and the principles of constitutional interpretation were stated in S.P. Gupta –Versus- Union of India AIR 1982 SC 149 with the following words:-
“It is a document of social revolution which casts an obligation on every instrumentality including the Judiciary, which is a separate but equal branch of the state, to transform the status quo ante into a new human order in which justice, social, economic and political will inform all institutions of national life and there will be equality of status and opportunity for all. It has to use the words of Glanville Austin, “… to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice.”
Judicial Activism and its interference:
While rejecting the narrow and limited role of the judiciary, the Supreme Court, on number of occasions have held that the role of the judiciary with respect to unremunerated rights such as the right to shelter, right to rehabilitation, right to livelihood and the right to medical aid needs expansion. Reference may be made in the decision of Maneka Gandhi –Versus- Union of India (1978) 1SCC 248 wherein the Supreme Court had held that the fundamental rights are not islands but have to be read along with the other rights. Hence reading article 21 with 14 and 19, it was held that “procedure established by law” under article 21 of the Constitution means not just any procedure but a just, fair and reasonable procedure.
In Francis Mullin –Versus- Administrator, Union Territory of Delhi, [iii] where the court defined ‘life’ as”-
The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings…
Coverage of Disadvantaged Groups:
In India, certain classes of citizens have suffered discriminatory treatment both from historical aspects as well as from social aspects. These groups include Scheduled Casts (SC), Scheduled Tribes (ST), OBC, tribal communities and other minority class. Article 15(4) of the Constitution prohibits discrimination on the grounds of religion, race, caste, sex or place of work, nevertheless contains a provision that permits the State to make ‘any special provision for the advancement of any socially and educationally backward classes of citizens or for the SC’s and ST’s. [iv] The traditions and customs that are followed by the tribal communities in different parts of India have been allowed to continue even after the making of the Constitution and Article 244 read with Schedule V to the Constitution, to ensure the preservation and protection of the tribal culture, customs and traditions.
Article 15(1) requires that the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(2) also guarantees, no citizen, shall, on the grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restrictions or conditions, with regard to access to shops, public restaurants, use of wells, tanks, bating places even against other persons including associations, firms or corporations. Article 17 speaks about untouchability and Article 23 prohibits trafficking of human beings and degrading forms of forced labour. The right to rehabilitation in multiple circumstances has been held as an important facet of Article 21.
In Karjan Jalasay Yojana Assargrasth Sahkar & Sangarsh Samiti –Versus- State of Gujarat (1986) Supp SCC 350 it was held that when the land was acquired for the construction of a dam, it was the duty of the state to provide alternative land to the tribal and other people belonging to the weaker sections, and in case there was also a place of dwelling on the land, an alternative dwelling place was also directed to be provided.
Right to Work:
Article 41 provides that the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public, assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. As regards the rights in work, two of the provisions in Chapter III of the Constitution contain enforceable fundamental rights i.e. non discrimination under Article 14 and equality of opportunity in the matters of public employment under Article 16.
Article 42 enjoins the State to make provisions for securing just and humane conditions of work and for maternity relief. Article 43 provides that the state shall endeavour to secure a living wage and a decent standard of life for all workers. The most recent is the National Rural Employment Guarantee Act, 2005, which is an acknowledgment of the minimum one content of the right and requires the state to not only identify a poor household but also provide one able bodied member of such household one hundred days of work to tide over the severe problem of rural unemployment during non agricultural seasons.
In Bandhua Mukti Morcha case, the Supreme Court had passed extensive direction to the state government to enable them to discharge its constitutional obligation towards the bonded labourers so that the right to live with human dignity is not violated.
Right to Shelter:
There is no express recognition of the right to shelter. In Sodan Sing –Versus- NDMC case, the Supreme Court reiterated that the question as to whether there can be at all be a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trade must be answered in the negative.
Right to Health:
Article 47 of the Directive Principle of State Policy provides for the duty of the state to improve public health. The Supreme Court not only declared the right to health to be a fundamental right but also asked the Government of West Bengal to pay him compensation for the loss suffered. In Consumer Education and Research Centre –Versus- Union of India, [v] the SC, in a PIL case, noticing that long years of exposure to the harmful substance could result in debilitating asbestosis, the Court mandated the provisions of compulsory health insurance for every worker as enforcement of the worker’s fundamental right to health.
Right to Education:
The insertion of Article 21A in Part III of the Indian Constitution in the year 2002, which provided for the fundamental right of education to all children between the ages of 6 and 14, occurred at the end of a process that was triggered of by the judgment of the Supreme Court in Unnikrishnan JP –Versus- State of Andhra Pradesh, 1993[vi]. By virtue of this judgment, it prompted a constitutional amendment that acknowledged the transformation of this right from Directive Principle of State Policy to an enforceable fundamental right.
Right to Food:
This right derives its origin from Article 39(b), (e) and (f) of the Constitution read with Article 41 and 47 of the Constitution of India. It prescribes that the state should ensure food is provided to the aged, infirm, disabled, destitute and child who are in danger of starvation and hunger. The right to food petition has been instrumental in ensuring the extension of the mid-day meal programme to most parts of our country.
Assessment of Indian Experience:
The above discussion would clearly reflect the wide and ever expanding horizons, through judicial interpretation and arguments. The decades of 1970s and 1980s witnessed a concerted move by the court to transcend its earlier conservative phase and march towards a positive direction. There has been a discernible shift in the approach of the court with respect to issues concerning economic and social rights. The justification for an activist and creative interpretation of the Constitution is that such an approach reiterates the character of the constitution as a social document.[vii] An activist judiciary has enabled large progress in ensuring basic rights to a significant section of the population. The power to do the same exists in the judiciary under Article 32, 141, 142 and 226 of the Constitution.
The judiciary must understand that it does not have powers to deal with policy matters inasmuch as this particular function rest upon the executive. The unfinished agenda is a long one indeed. The Bhopal Gas disaster continues to be a grim reminder of the inability of the legal system to cope with the challenges posed by such calamities. In the field of human rights, a lot remains to be achieved. India being one of the signatories of the UDHR needs to face the challenge of human rights violation and start to contribute to the prevention of incidents such as ethnic hatred, acts of genocide, xenophobic attitudes, discrimination in the name of race, religion, sex, caste and creed and other such manifestations of human rights violations.
[i] Constituent Assembly Debates, Volume XI, 25th Nov, 1949.
[ii] Kesavananda Bharati –Versus- State of Kerala (1973) 4SCC 225.
[iii] AIR 1981 SC 746
[iv] JN Pandey.
[v] (1995) AIR 922, 1995 SCC (3) 42
[vi] AIR 2178, 1993 SCR (1) 594
[vii] TK Tope, Supreme Court of India and Social Jurisprudence (1988) 1SCC