“The Preamble Pledge of Social, Economic and Political Justice : Are They Out of Order” by Hon’ble Chief Guest Justice Shri Jasti Chelameswar

The Preamble Pledge of Social, Economic and Political Justice: Are They Out of
Order 1
It is a great honour to be present here this morning to deliver the
valedictory address of the Session of the
Workshop of Lawyers on “The
Preamble Pledge of Social, Economic and Political Justice : Are They Out of
Order” organized by Justice P.D. Desai Memorial Lecture Committee and the
Trustees of Praleen Public Charitable Trust. At the outset, I must express
my profound respect for Late Justice P.D. Desai, who is one of the
outstanding personalities of the Indian judiciary.
He is known for his
erudition and independence, two great qualities which are increasingly
becoming rare commodities in Indian society.
Apart from those two great
qualities required of a Judge, Justice Desai possessed other noble qualities
which distinguish great human beings in a crowd of sapiens.
To understand whether the Preamble to our Constitution or the Pledge
of Social, Economic and Political Justice contained therein is out of order, it
is necessary to understand, first, what is the purpose sought to be achieved
by any constitution (written or otherwise).
Thereafter, we need to examine
the scheme of our Constitution and the significance of the Preamble to our
Constitution.
1
Speech given by Justice J Chelameswar, Judge, Supreme Court of India, at the valedictory session of the
Workshop of Lawyers being organised by ‘Justice P D Desai Memorial Lecture Committee’ and ‘The Trustees of
Praleen Public Charitable Trust’ at Ahmedabad on September 16, 2017
1The basic goal of any government is to establish an orderly society.
An orderly society can be secured by any form of government, be it
democratic or autocratic.
The refinement of human thought process
achieved out of experience gained through ages by mankind leads to the
evolution of liberal political ideas. Mankind realized that all power corrupts
and all governments tend to become oppressive.
If power is concentrated
in one individual, the scope for oppression is greater. Therefore, the need to
find ways and means to control the men who happen to have the power to
govern either under a claim of ‘divine right’ or otherwise 2 .
democratic forms of governments were thus conceived.
Parliamentary
The powers of law
making and its enforcement were separated and came to be vested in
different bodies – legislature consisting of elected representatives of the
citizens and executive chosen by and answerable to the legislature.
Written Constitutions are the next stage in the evolution of constitutional
democracies.
They are a device invented to outline the powers and
functions of the various organs of the government and prescribe the limits of
the authority of government. Such limitations are to be found either in the
text of the Constitution or implications flowing from the text of the
Constitution. It is said
“If men were angels, no government would be necessary. If angels
were to govern men, neither external nor internal controls on
government would be necessary. In framing a government which is to
I do not wish to elaborate on the evolution of constitutional governance in its full detail as it would be beyond the
scope of today’s topic.
2
2be administered by men over men, the great difficulty lies in this: you
must first enable the government to control the governed; and in the
next place oblige it to control itself.” 3
The primary purpose sought to be achieved by governance under a
constitution is to secure the liberty of citizens and even non-citizens, who
are amenable to the authority of the State.
The liberty and freedoms,
which people desire, cannot be secured by mere aspirations.
It requires
constant vigilance and commitment to constitutional culture on the part of
the society as well as the individuals chosen to run the government to
secure the liberty of the members of the society. Written constitutions are
generally open textured documents for the participatory evolution of
democratic practices.
There is nothing in the text of our Constitution, either in the Preamble
or in any other part, which makes any declaration that the purpose of the
Constitution is to establish a government to secure an orderly society. That
is understood by default.
What else is sought to be achieved by the
Constitution? In other words, what are the goals sought to be achieved by
the Constitution, requires examination.
Every society has its own distinct history, its own problems emanating
from causes either natural or man-made over centuries. India had and still
has its own peculiar problems.
3
They are: vast population with relatively
The Federalist No.51 (1788) [According to my version, it is Madison]
3limited natural resources, inequitable distribution of wealth among its people
and inequitable control over the natural resources and the means of
production of goods and services, mind-boggling diversity of religious,
cultural and social beliefs and practices of the various groups of inhabitants
of this country coupled with the complex political history of this country,
which compounded already existing problems.
Economic disparities have always been huge in India. “ At the height of
Mughal splendor under Shah Jahan, over a quarter of the gross national product of the
empire was appropriated by just 655 individuals, while the bulk of the approximately 120
million people of India lived on a dead level of poverty ” 4 .
300 years after the height of Mughal splendor at the time of framing
the Constitution, neither the plight of the common man in India nor the
pattern of the distribution of wealth was very different.
Indian population lived below the poverty line.
A huge chunk of
Food security was a major
concern for them. Education and medical services were hardly accessible to
them.
On the social plane, Indian society was no more evolved and
progressive
than
what
it
was
at
the
height
Untouchability was an approved social practice.
of
Mughal
splendor.
Various sections of the
population pursued only the occupations undertaken by their ancestors.
4
The Last Spring – The Lives and Times of the Great Mughals by Abraham Eraly, Epilogue, p.898
4Such occupations did not provide any financial gains sufficient to assure a
comfortable life in the modern world. Those occupations restricted upward
mobility, both social and economic. Women formed an exclusive class.
They suffered a great deal of disadvantage cutting across various social
segments.
They did not enjoy any right in the property of their families,
either parental or matrimonial. Their autonomy in many spheres of life such
as matrimonial and occupational was almost absent.
These economic and
social problems made the enjoyment of the fruits of political freedom a
teasing illusion for a vast majority of people of this country.
On the political front, a large part of the territory was directly under
the control of foreign rulers who were legally not answerable to the people of
the country and the remaining part of the territory was ruled by native
Indian rulers owing allegiance to the foreign ruler who claimed their
authority by some “ divine right ”.
The Constituent Assembly was fully aware of the various problems
which faced Indian society. The members of the Constituent Assembly were
people of wisdom based on their deep study of human nature and history.
They wanted to bring about a change.
They were men and women with
noble ideas who recognised that mere political independence would not
make the Indian society any more happy than it was under the rule of alien
rulers.
They realized that only a great social and economic revolution can
lead the Indian society to happiness. They wanted to create the structure of
5a government which is obliged by a constitutional mandate to address the
various problems faced by the Indian society.
The idea of framing the Constitution is not either to create simply a
manual of dos and don’ts by the government or to replace a foreign ruler
with an Indian ruler.
The basic purpose of our Constitution is to create a legal document
which contains the principles which regulate the governance of the country
for the purpose of enabling an orderly democratic and secular society where
people can enjoy liberty.
Therefore, our Constitution is designed to provide
a democratic form of government. A government based on laws made by
the elected representatives of the people but not on the whims and fancies
of individuals.
Even the authority conferred by a Constitution to make laws
can degenerate into autocracy.
To eliminate such possibility, the authority
to make laws is vested in bodies (legislatures) whose membership is limited
by time and the members are chosen periodically through election by the
citizens eligible to participate in the electoral process. The responsibility of
implementing the laws made by the legislature is entrusted under the
scheme of the Constitution to the executive which is designed to be
answerable to the legislature.
The power of law making and implementing the law is divided
vertically between the Union and States.
It is also horizontally divided
6between the three great branches of the State i.e. the legislative, the
executive,
and
the
judiciary.
The
Constitution
contains
elaborate
stipulations describing how each one of the constitutional organs is required
to exercise the powers conferred on it for discharging obligation of providing
good governance in order to establish not only an orderly society, but also a
society where people can live with human dignity and lead a happy life.
The Constituent Assembly was aware of the historical truth that even
elected bodies can act irrationally and oppress the people.
without the examples of the tyranny of the majorities.
History is not
Therefore, in order
to protect the liberty of the citizens, our constitution declared certain rights
to be fundamental rights which cannot be transgressed even by legislature.
But Fundamental Rights are also declared to be subject to certain exceptions
conceived in the larger interests of the society.
Democracy is an aspect of political justice and it is sought to be
secured by our Constitution by mandating under Article 326 that there shall
be universal adult franchise.
In other words, citizens above the age of 18 5
are declared entitled (subject to certain restrictions) to be voters at the
various elections to be held under the Constitution for the purpose of
choosing the representatives of the people to the various legislative bodies 6
established under the constitution.
5
The Constitution mandates periodic
Initially it was 21 years but amended by the Constitution 61 st Amendment in 1988.
6
The two chambers of the Parliament viz. Lok Sabha and Rajya Sabha and the legislatures of the States. Legislative Assembly
in all the States and Legislative Council wherever they exist.
7elections to these legislative bodies.
Various provisions of the constitution
also stipulate that any citizen of India can become a member of the
Legislative Bodies subject to certain restrictions such as the minimum age
requirement etc.
It is important to notice that under the Constitution
though both the right to vote or the right to contest for the membership of
any one of the legislative bodies created thereunder could be restricted on
certain grounds specified in the Constitution, neither the financial status nor
the religious belief of the citizen are part of those specified grounds. On the
other hand, the Constitution guarantees a fundamental right under Article 25
to all persons “ freedom of conscience and the right to freely profess, practise and
propagate religion of their choice ”
subject of course to certain restrictions based
on constitutionally prescribed parameters specified in that Article.
Such
fundamental right, in the context of the electoral process, guarantees a
secular democracy.
By providing for a system of Government which is purely dependent
upon the choice of the electorate, our Constitution eliminated the possibility
of the establishment of any other form of Government, either monarchy or
autocracy.
Securing economic and social justice is the next task of the
Constitution.
Therefore,
administration of the
certain
principles
which
should
guide
the
State in discharge of all its governmental functions
8were incorporated in the Constitution in Part-IV which contains the Directive
Principles of State Policy.
Article 38 occurs in Part IV of the Constitution
which contains the Directive Principles of State Policy.
(i) Directive Principles are declared to be fundamental in the governance of
the country, and it shall be the duty of the State to follow these Directive
principles in making laws.
(ii) Article 38, as was originally enacted read ;
“38(1) The State shall strive to promote the welfare of
the people by securing and protecting as effectively as it
may a social order in which justice, social, economic and
political, shall inform all the institutions of the national
life.”
The loud proclamation under Article 38 that the State shall strive to promote
the welfare of the people by securing and protecting a social order in which
justice, social, economic and political shall inform all the institutions of the
national life, is not only an acknowledgment of the existing injustice in the
various spheres of the national life but also the recognition of the obligation
of the State constantly to take necessary steps to secure a just social order.
The framers of the Constitution were aware of the fact that it is
possible to secure a just social order only when certain problems
contributing to the establishment of such an unjust social order are
addressed and the maladies remedied.
Therefore, the command under
Article 39 to the State to direct its policy towards securing various goals
specified therein.
The salient features of Article 39 are ;
9“(a) that the citizens, men and women equally, have the
right to an adequate means of livelihood.
(b)
that the ownership and control of the material
resources of the community are so distributed as best to
subserve the common good;
(c) that the operation of the economic system does not
result in the concentration of wealth and means of
production to the common detriment.”
Without adequate means of livelihood any amount of political freedom
by itself does not make a human being anymore happier. To put it crudely,
that we are not ruled by people whose skin colour is different from ours but
by people whose skin colour is akin to ours, is no freedom in the real sense.
The happiness of human beings can broadly be stated to depend upon two
elements, material comforts and freedom from restraint of any kind either
physical or mental. The availability of proper nutrition and health care and
appropriate clothing and residential arrangements are the fundamental
components of material comfort. 7 In order to secure them, human beings
require a minimum of economic strength which is only possible where the
ownership and control of the material resources of the community are so
distributed as to best subserve the common good.
The subservience of
common good is only possible where the operation of the economic system
7
Article 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public
health – 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 and, in particular, the State shall endeavour to bring about
prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious
to health.
10does not result in concentration of wealth and means of production in a few
hands.
The Preamble was framed only after the draft articles of the
Constitution had been discussed and finalized by the Constituent Assembly.
The object of framing the Preamble at the end of the debate on the draft
Constitution was to ensure that the Preamble is in conformity with the
Constitution as accepted by the Constituent Assembly 8 . In other words, the
Preamble is a short hand version of the contents of the major principles
underlying the scheme of the Constitution.
The Preamble declares that the people of India resolved to constitute
themselves into a democratic secular republic.
The goals of the republic are
to secure to all its citizens; (i) justice, liberty and equality; (ii) to promote
amongst all the citizens of India fraternity while assuring the dignity of
individual and (iii) unity and integrity of the nation.
May be it is a coincidence that Justice Shelat, another distinguished
son of Gujarat’s soil, explained 9 the purpose of Preamble in the following
words:
“The preamble serves several important purposes. Firstly, it indicates
the source from which the Constitution comes viz. the people of India.
It declares the great rights and freedoms which the people of India
8
It is not without significance that the Preamble was passed only after draft articles of the Constitution had been
adopted with such modifications as were approved by the Constituent Assembly.
9 Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461
11intended to secure to all citizens and the basic type of government and
polity which was to be established. if any provision in the Constitution
had to be interpreted and if the expressions used therein were
ambiguous, the preamble would certainly furnish valuable guidance in
the matter.
……… But the constant strain which runs throughout each and every
article of the Constitution is reflected in the Preamble which could and
can be made sacrosanct.
The Preamble was, therefore, meant to
embody in a very few and well-defined words the key to the
understanding of the Constitution.
The Preamble embodies the fundamentals underlying the structure of
the Constitution.”
In Indira Nehru Gandhi case 10 , the Supreme Court declared that the
Preamble sets out the ideological aspirations of the people. Justice Bhagwati
in D.S. Nakara case 11 , opined that in deciding the constitutional validity of
any State action, be it legislative or administrative, the Courts are required
to examine the issue on the touchstone of Directive Principles of State Policy
in the light of the Preamble.
Justice Chinappa Reddy in Atam Prakash
case 12 , described the Preamble as the guiding light for the interpretation of
the Constitution.
10
11
12
Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1
D.S. Nakara v. Union of India, AIR 1983 SC 130
Atam Prakash v. State of Haryana, AIR 1986 SC 859
12Various provisions of the Constitution are designed to secure social
justice.
The pivot for securing social justice is the mandate of equality
among the people of India in all its aspects.
constitutional
declaration
abolishing
untouchability
Article 17 makes a
and
making
it
a
punishable offence to practice untouchability. Articles 14 to 16 are designed
to secure equality. Recognising the specific problem of inequality suffered
by the Scheduled Castes and Scheduled Tribes over
centuries, the
Constitution made provisions for reservation of seats in favour of those
classes in the legislative bodies 13 . It makes a special provision commanding
that the claims of members of the Scheduled Castes and Scheduled Tribes
shall be taken into consideration consistently with the maintenance of
efficiency of administration, in the matter of appointments to services either
under Union of India or under the States 14 .
The Constitution enables the
making of special provisions in favour of socially and educationally backward
classes of citizens, Scheduled Castes, Scheduled Tribes and also women and
children 15 . Further, the Constitution mandates under Article 46:
46. Promotion of educational and economic interests of
Scheduled Castes, Scheduled Tribes and other weaker sections.
The State shall promote with special care the educational and
economic interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled Tribes, and shall
protect them from social injustice and all forms of exploitation.
Various other provisions of chapters dealing with Directive Principles
mandate that the policy of the State should be directed towards securing
13
14
15
Article 330 and 332.
Article 335
Articles 15(3), (4) and Article 16(4)
13various rights like right to work, right to education, public assistance in the
cases of unemployment, old age sickness and other cases of undeserved
wants 16 . The State is mandated to make appropriate legislation to secure to
the workers a living wage and conditions of work ensuring a decent standard
of life, enjoyment of leisure etc.
It is in this background of the scheme of the Constitution that the
Preamble was framed.
In pursuance to the various goals sought to be achieved by the
Constitution, laws have been made in the last seven decades both by the
Parliament and the State Legislatures professedly to achieve one or the
other objective enshrined in the chapter of Directive Principles. Such laws
secured their objectives with varying degrees of success.
Either the laws
were not comprehensive enough to achieve the goal professedly sought to
be secured by law or in some cases the implementation of law was not
intense enough to secure the objective sought to be secured by law.
In my opinion, achievement of social justice was an object pursued by
the successive governments with greater vigour than the achievement of
economic and political justice. However, the achievement of social justice is
also not complete, considerable social inequalities and unwholesome
practices have not been totally eliminated. In the last 70 years, this country
16
Article 41
14still had to grapple with the practices of untouchability, the cruel practice of
sati, khap panchayats etc.
Neo-communal social practice also started
gaining currency, of late, across the country.
Caste-based organisations
mushroomed in the country claiming special treatment by the States. May
be there were justification for such claims judged from the standards of the
economic and social status of the group claiming such special status. But
the very fact that such claims still persists goes to demonstrate that the
constitutional goals are not yet achieved. It took almost five decades for the
Parliament to create a right in favour of the Hindu woman in the coparcenary
property 17 .
The rights of women in the realm of their intimate personal
choice such as marriage and child bearing are still very nebulous.
Though,
attempts have been made, the goal posts are far away and the distance
varies depending upon the religious denomination and/or community to
which a woman belongs to.
A great deal of law making and policy framing revolved around
securing the goal of economic justice but the fact remains there are huge
chunks of population that still live below the poverty line without adequate
means, assurance of food, security and residence and access to the
opportunities of education and employment.
With reference to certain
segments, the inequalities are bizarre even as on today.
17
Interest of Hindu Women in Coparcenary Property under Hindu Succession Act, 2005
15In the realm of political justice, though it should be said that the
greatest success of Indian democracy is that it retained its democratic form
by having periodic elections to legislative bodies.
The content and the
quality of democracy leaves much to be desired. Money power plays a great
role in the electoral process.
The electoral process itself resulted in the
emergence of ‘democratic dynasties’.
I am conscious of the fact that the
emergence of ‘democratic dynasties’ is the social problem having its root in
the maturity level of the Indian polity. But the problem is real.
A new oligarchy came into existence containing two classes of people.
People who get an opportunity to belong to the ruling class, i.e. (i) people
who get a chance to become members of any one of the three great
branches of the government, and (ii) others who have access to that ruling
class.
Access to the ruling class comes through either economic strength or
personal proximity.
In the Indian context personal proximity arises out of
the considerations of religion, caste, language etc.
The abovementioned
factors, in my view, are antithetical to be goal of securing political justice
contemplated by the Constitution.
In the background of the current realities in the various spheres of
Indian societies, some of which have been mentioned above, I am of the
opinion that the Preamble is still in order will continue to be in order forever
even if all the social, economic and political problems of the Indian society
16are solved at some point of time in future.
No civilization known to history
maintained an absolute, socio political and economic equilibrium for eternity.
Any written constitution would be an incomplete document leaving
enough space for a participatory evolution of political ideals.
Indian
Constitution is no exceptional to it. The broad principles which formed the
basis of the political ideals sought to be achieved by the Constitution are
indicated in the Preamble.
Each generation will have to modulate their
political ideals to suit the contemporary economic, social and political
realities without compromising on the core principles.
* * * * *
17

Judiciary Least Dangerous Branch ? By Hon’ble Justice Shri Rohinton Nariman

The National Judicial Appointment Commission Act – Valedictory Address by Chief Guest Shri P.P.RAO

Valedictory Address delivered by Chief Guest Shri P.P.Rao (Sr. Advocate, Supereme Court of India)

Picture 109-min

MODERATORS

Shri Mahendra Anand (Sr. Advocate, Supereme Court of India)Picture 007-min

Shri Harin Rawal (Sr. Advocate, Supereme Court of India)Picture 009-min

 

Right to Privacy : Justifiability or otherwise of Interference by Print, Electronic and Social Media by Chief Guest Hon’ble Justice Shri G. S. Singhvi