Social justice for the poor and the marginalised – a judicial perspective

I consider it a great privilege and I feel a sense of immense delight to have been invited to address “Prabir Palit Memorial Lecture, 2013”. I knew late Palit from 1974 when four of us studying in post-graduate and undergraduate classes in Ravenshaw College were publishing an English Magazine which we had deliberately named “Zephyrus” to give it an exotic touch. After I joined the Bar, I found that he was a well-composed, forceful and articulate counsel in his own way, mostly canvassing the cause of the poor and the downtrodden. He was sobriety personified. A smiling and affectionate personality who never abandoned his cultural values neither in court nor off the court. One thing that was really special to him, he had devoutly cultivated the attitude to reflect mutual respect in his behaviour. It was also visible in his court performance.  Social Justice as a constitutional tenet has to be understood, appreciated and applied as an amalgam of science and arts founded on constitutional paradigms with the perceptions of a visionary and pragmatism of a skilled architect.  The Preamble of our Constitution uses the word “Justice” which has three insegregable facets – social, economic and political. In Kesavananda Bharati1 Palekar, J. prismatically viewing the Preamble expressed that social and political justice takes care of equality of status and of opportunity. The learned Judge referred to the Directive Principles of State policy, especially, Article 38, in which the State is given a mandate to 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 National life. Beg, J., referring to the Preamble as well as the provisions of Part III and Part IV of the Constitution, opined that it seeks to express the principle: “Salus Populi Suprema Lex”, the good of the mass of the citizens of our country is the supreme law embodied in our Constitution prefaced as it is by the Preamble.  Social and economic progress is the requisite goal of a welfare State. It cannot be forgotten that in social justice inheres economic philosophy. Cumulatively social justice engulfs societal security, institutional security, moral order, collective progress, conservation of environment and more importantly, the protection of individual interest as permitted by law. The Constitution casts a responsibility on the State to sustain social and economic security. Dealing with the concept of Socialist State in D.S. Nakara2, D.A. Desai, J. had to say this:  “The principal aim of a socialist State is to eliminate inequality in income and status and standards of life. The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. This amongst others on economic side envisaged economic equality and equitable distribution of income.”  The learned Judge further referred to various other aspects and Article 41 which enjoins the State to secure public assistance in old age, sickness and disablement and observed:  “It was such a socialist State to which the Preamble directs the centres of power – Legislature, Executive and Judiciary – to strive to set up. From a wholly feudal, exploited and slave society to a vibrant, throbbing socialist welfare society is a long march but during this journey to the fulfillment of goal every State action whenever taken must be directed, and must be so interpreted as to take the society one step towards the goal. … Recall at this stage the Preamble, the floodlight illuminating the path to be pursued by the State to set up a sovereign socialist secular democratic republic.”  In Samatha3, K. Ramaswamy, J., while dealing with the word “socialist” used in the Preamble, opined that it must be read from the goals articulated in Articles 14, 15, 16, 17, 21, 23, 38, 39, 46 and all other cognate Articles seek to establish, i.e., to reduce inequalities in income and status and to provide equality of opportunity and facilities. Social justice enjoins the Court to uphold the Government’s endeavour to remove economic inequalities and to protect the interests of the weaker sections of the society so as to assimilate all the sections of the society in a secular integrated socialist Bharat with dignity of person and equality of status to all. The learned Judge proceeded to State:  “Establishment of the egalitarian social order through rule of law is the basic structure of the Constitution.”  In Consumer Education and Research Centre4, while stating that social justice is an integral part of justice in generic sense, the Court observed that justice is the genus, of which social justice is one of its species. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, Dalits, Tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex of social change to relieve the poor etc. from handicaps, penury to ward off distress, and to make their life liveable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation. The Court proceeded to state the principle in following terms:  “The constitutional concern of social justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor etc. are languishing to secure dignity of their person. The Constitution, therefore, mandates the State to accord justice to all members of the society in all facets of human activity. The concept of social justice imbeds equality to flavour and enliven practical content of ‘life’. Social justice and equality are complementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in result.”  In G.B. Pant University of Agriculture & Technology5 the Court Stated “Democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity. Socialistic concept of society should be implemented in the true spirit of the Constitution.”  When one talks of social justice as a concept and the eventual steps pertaining to fructification of the said concept, it prompts one to sit in a time machine and perceive through the laser beam how the ancients had conceived the social good. In Atharvanaveda it is stated:  Samáni prapá saha vonnabhágah  samáne yoktre saha vo yunajmi,  samyancognim saparya tárá nábhimivábhitah //  (Saunaka Sákhá - 6/30/6)  Justice M. Rama Jois in his book “Human Rights and Indian Values” has transcreated the above as follows:  “All have equal rights in articles of food and water. They yoke of the chariot of life is placed equally on the shoulders of all. All should live together with harmony supporting one another like the spokes of a wheel of the chariot connecting its rim and the hub.”  And again while discussing about raja dharma, the constitutional law, Manu had to say this:  “Yathá sarváni bhütáni Dhará Dhárayate samam /  Tathá sarváni bhütáni vibhratah párthivam vratam //  (Manusmrti - 9/311)  As the earth holds/maintains all the creatures with equal treatment to all; similarly the king should look after all the subjects/living beings without any discrimination and this is called the Royal Vow.”  One may feel that they have been stated in the human rights context but the larger public good can neither be bereft of human rights nor sans social justice nor shorn of socio-economic justice. In the present day scenario they would convey that there should be seemly governance where citizens remain in a sustained satisfaction with the state of affairs and the persons who are in-charge of affairs ensure and promote the social justice in its conceptual essentiality.  Our Constitution visualizes social justice where a socialistic society becomes seminal giving due emphasis on the development of each individual and upliftment of the society as a whole. Long back John Stewart Mill had put it in a different manner: “The worth of a state, in the long run, is the worth of the individuals composing it”. It cannot be forgotten that the society benefits from an atmosphere where all its constituents have the opportunity to earn respect, advancement and progress. Under these circumstances, it becomes the duty of the State to see that the poor, impoverished, impecunious and the marginalized are taken care of.  The health of social justice is dependent on the harmonious co-ordination and reverent reconciliation between the rights of an individual and the command and the requirements of society. The individual right and the social control have to go hand in hand so that the legitimate expectation under existing legal regime is not hampered and simultaneously there should be no encroachment on the social control which has the sanction of law. Social justice should not be only be a living concept but it should be a concept which would sustain rule of law stabilizing the meaning and significance of the ideal of a welfare State.  The concept of social justice deals with all aspects of human life. Harold J. Laski once remarked “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 society. It envisages equal treatment of equal persons in equal or essentially equal circumstances and is essential for social solidarity.  Social justice has to conceptually change with time depending on prevailing social norms and social values. No age including ours has a right to call its own norms and values as absolute and peremptory though we might believe it to be so. As the face of social justice changes its countenance from time to time, new tools are required to be evolved by the courts to meet the challenges. The conceptual eventualities have to pave a new path to keep pace with the climate of change to meet the demands. True it is, the law makers have the role of law making, but judiciary, especially the constitutional courts, has to ignite the letters of law and also infuse vibrancy to the spirit of the Constitution as a consequence of which constitutionalism and constitutional morality rule supreme.  It has to be kept in mind that social justice has to be implemented within the constitutional parameters respecting the “summum bonum” of our Constitution - Rule of Law – that controls the Constitution because it is a patent instrument to effectively build the essence of social justice. In the words of Professor Commons as quoted in a work by Roscoe Pound, “Justice is not merely fair play between individuals, as our legal philosophy would have it – it is fair play between social classes.”6  The recognition of the rights of the poor and marginalized through the Court process is an effective way to ensure social justice and it can only be achieved through the process of judicial hermeneutics or science of interpretation. And it has been developed and got universal recognition as indigenous jurisprudence of human rights and social justice. Needless to say, the Judiciary has played a vital and important role, not only in preventing and remedying abuse and misuse of power, but also in eliminating exploitation and injustice. The summit Judiciary in India, keenly alive to its social responsibility and accountability to the people of the country, has liberated itself from the shackles of Western thought, made innovative use of the power of judicial review, forged new tools, devised new methods and fashioned new strategies.  In Ramon Services (P) Ltd.7, R.P. Sethi, J. Observed Thus “After independence the concept of social justice has become a part of our legal system. This concept gives meaning and significance to the democratic ways of life and of making the life dynamic. The concept of welfare State would remain in oblivion unless social justice is dispensed. Dispensation of social justice and achieving the goals set forth in the Constitution are not possible without the active, concerted and dynamic efforts made by the person concerned with the justice dispensation system.”  A profound articulation was made in Jagdish Sharan (Dr.)8 to the following effect:  “Law, constitutional law, is not an omnipotent abstraction or distant idealization but a principled, yet pragmatic, value-laden and result-oriented, set of propositions applicable to and conditioned by a concrete stage of social development of the nation and aspirational imperatives of the people.”  In S.P. Gupta9, Bhagwati, J., while discussing about the true functioning of the judiciary in a country like India which is marching along the road to social justice with the banner of democracy and the rule of law, had observed:  “…. The judiciary is not an abstract conception but it is a living faith which must derive its inspiration from the constitutional character and its nourishment and sustenance from the constitutional values. It is necessary for every Judge to remember constantly and continually that our Constitution is not a non-aligned rational character. 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. The judiciary has therefore a socio-economic destination and a creative function. 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.”  The Court in Balbir Kaur10 Observed Thus “The concept of social justice is the yardstick to the justice administration system or the legal justice and as Roscoe Pound pointed out the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law courts also to apply the law depending upon the situation since the law is made for the society and whatever is beneficial for the society, the endeavour of the law court would be to administer justice having due regard in that direction.”  In Air India Statutory Corpn.11, it has been ruled that social justice is not a simple or single idea of a society but is an essential part of complex social change to relieve the poor etc. from handicaps, penury to ward off distress and to make their life liveable, for greater good of the society at large. The aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation and constitutional goal. Social security, just and humane conditions of work and leisure to workman are part of his meaningful right to life and to achieve self-expression of his personality and to enjoy the life with dignity. The State should provide facility and opportunities to enable them to reach at least minimum standard of health, economic security and civilised living while sharing according to their capacity, social and cultural heritage.  In Chameli Singh12, after referring to Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, 1966 which lays down that the State parties to the Covenant have to recognize the right of everyone to an adequate standard of living for himself and for his family including food, clothing, housing and to the continuous improvement of living conditions. The State has to understand its obligation and take appropriate action and ensure the said right is realized.  In People’s Union for Democratic Rights13 the exploitative labour practices of contractors was exposed during construction for the Asian Games. The Court did not go by the traditional understanding of “ traffic in human beings and forced labour” but expanded its meaning to include situations where the poor accept exploitative terms of employment out of monetary compulsion. It justified its decision by referring to the broader purposes of the Constitution which were defined as ushering in a new socio-economic order. It observed:  “In a country like India, where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on the face of it voluntary, but it may in reality be involuntary… Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed his wife and children, or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigor of his poverty, he would have no choice but to accept any work, that comes his way, even if the remuneration offered to him is less than the minimum wage… the labour (thus) provided to him would be “forced labour.”  The protection of rights of labourers and the poor employees have remained a constant concern of the Court. Almost five and a half decades back in Workers of Gold Mines14 the Court observed that the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.  In J.K. Cotton Spinning and Weaving Mills Co.15, it was clearly stated that the concept of social justice is not narrow, one-sided or pedantic, and is not confined to industrial adjudication alone. It is comprehensive. It is founded on the basic ideal of socio-economic equality and its aim is to eliminate disparities and inequalities.  In Y.A. Mamarde16, the Court observed that under our present Constitution the State is now expressly directed to endeavour to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This directive principle of State policy being conducive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.  In Bandhua Mukti Morcha17, the Court while acknowledging that bonded labour is a shameful and ugly feature of our national life and a relic of a feudal hierarchical society in which few socially and economically powerful men trade on the mercy and suffering of the others belonging to lower rungs of the society, issued directions for “release” of bonded labourers.  In Delhi Jal Board18 the Court reminded that where substantial segments of the urban society had become insensitive to the plight of the poor and downtrodden who undertake jobs that are inherently dangerous (in this case sewer cleaners) out of sheer compulsion of poverty it was for the courts to protect them. It was the constitutional obligation of the courts to take cognizance of the issues relating to the lives of people who are forced to undertake jobs which are hazardous and dangerous to life. It upheld the judgment of the High Court directing payment of compensation to families of sewage cleaners who had died when performing their duty and to make available life saving equipment and gear to them.   In Satya Pal Anand19 when the subsistence allowance was not paid to an employee on the ground that he had not stayed at the headquarters despite a stipulation made in the order of suspension, the Court opined that as the employee had clearly stated about his financial condition and his inability to remain at the headquarters as no subsistence allowance was paid, the enquiry was vitiated and the punishment was bad.  Treating the Constitution as a living and growing organ the Court has attempted to read into it new rights to ensure social justice. In Kapila Hingorani20 where the State of Bihar owned corporations had not paid salaries to its employees for long, putting them on the brink of starvation deaths and suicides, the Court lifted the corporate veil and directed the State of Bihar to deposit Rs. 50 crores before the High Court of Patna for disbursement of salaries of the employees. The Court broadened the responsibility of State owned Corporations holding that these undertakings being State (since under deep and pervasive control of States) would be constitutionally liable to respect the life and liberty of its employees in terms of Article 21 of the Constitution. It also expanded the conception of ‘duty of the State’ to include the duty to see that rights of the employees of State owned corporations to life (which includes livelihood) and liberty are not infringed. It held that the right to carry on business is subject to the duty to comply with constitutional obligations and limitations provided in the Constitution. This duty was based in the concept of ‘welfare State’ which India and its States are, therefore, have the duty to comply with constitutional provisions and in particular the Directive Principles of State Policy in Part IV and Fundamental Duties in Part IV A. The plea of financial stringency was not accepted as a ground for inaction with regard to this duty. The Court considered the human right to development - a third generation right proclaimed by the UN which includes the obligation of the States to work within the scope of their authority to combat poverty and misery and read this into the duty of the State to protect life and inturn livelihood under Art 21 of the Constitution.  Subsequent to the passing of the above order, in Kapila Hingorani21 the issue raised was that the responsibility was also of the State of Jharkhand to deposit the amount as directed. It was learnt that since the disbursal of salary could not be done in time, five more deaths took place due to non payment of salary. The Court reiterated that it had not issued the above directions to the States on the premise that they were bound to pay the salaries but on the ground that it was the employees who had the human right and fundamental right under Art. 21, that the State was bound to protect. The right of salary secured by the earlier order was in furtherance of the human and fundamental rights of the employees concerned for their survival and not by way of enforcement of their legal right to arrears of salaries. The State of Jharkhand was also asked to deposit Rs.25 crores towards disbursement of salaries.  At this stage, I think it absolutely apposite to refer to some passages from Harjinder Singh22 :  “Of late, there has been a visible shift in the courts’ approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalisation and liberalisation are fast becoming the raison d’être of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganised workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman/employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood.  It needs no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the directive principles of State policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer—public or private.”  In Bajaj Auto Limited23, taking note of the fact that the employer had adopted unfair labour practice as defined in Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971, the Court directed to pay lump sum amount calculated at 65 days’ salary, inclusive of all allowances for the number of year each complainants had actually worked irrespective of the days a complainant may have put in in a year.  Recently in T.N. Makkalnala Paniyalargal M Sangam24 a controversy travelled to the Apex Court where the Division Bench of High Court of Madras on the basis of a statement made by the General Secretary of a particular union that the matter would stand settled if five months’ salary is paid to each of the welfare workers disposed of the appeal. It was contended before this Court that a settlement of this nature affected the livelihood of 13000 welfare workers and the lis deserved to be delineated on merits as the employees had succeeded before the writ court. Taking note of the totality of circumstances the Court set aside the decision rendered on concession and remitted the matter to the Division Bench of the High Court for adjudication on merits. The Court, needless to say, was absolutely alive to the precarious situation faced by such huge number of employees.  In Consumer Education and Research Centre25 was a case concerning the occupational health hazards faced by workers in the asbestos industry. Taking stock of the factual expose’ the Court held that right to health is an integral facet of a meaningful right to life. In Paschim Bengal Khet Majdoor Samity26, it was ruled that it is the constitutional obligation of the State to provide adequate medical services to the people, to provide medical aid to preserve human life and the State could not avoid this on account of financial constraints though substantial expenditure was needed to ensure that medical facilities were adequate.  The Court has issued directions for varied purposes like appointing committees or asking the Government to devise and carry out schemes, to secure social justice. For instance in Azad Rickshaw Puller’s case27 it asked the Bank to advance loans to rickshaw pullers which contained a whole scheme for the repayment of such loans. In Sodan Singh28, directions were issued for preparing a scheme for the housing of pavement dwellers or squatters. In Vishal Jeet29, the court passed directions for rehabilitation of prostitutes. In Kishan30 the Court gave directions to the Government for taking requisite measures for preventing starvation deaths due to poverty.  In Olga Tellis31, Chandrachud, C.J., articulated about the right to livelihood on the bedrock that no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. It was observed that right to livelihood is an integral component of the right to life because when a person is deprived of his right to livelihood, he is deprived of his life.  In Banwasi Seva Ashram32 the Court approved the setting up of a thermal power plant of National Thermal Power Corporation Limited in a location that extended to a forest area and ordered for proper rehabilitation of the oustees. In the second Banwasi Seva Ashram case33 the Court passed yet another order for rehabilitation of Tribals directing NTPC to ensure that rights of oustees were determined in their respective holdings and they were properly rehabilitated and adequately compensated. The courts in balancing tribal rights and economic development have ensured social justice to the poor and marginalized.    The disabled in society are required to be protected. Building pyramid by concretization of social justice in National Federation for Blind34 the Court directed the concerned authorities to permit visually impaired persons to compete and write the Civil Services Exams. The Court commended the Govt. to decide the question of providing preference/reservation to handicapped in Groups A & B posts as expeditiously as possible and that the list of jobs identified by the concerned committee as suitable for being held for physically handicapped persons was not exhaustive and that the Ministries can further supplement the list based on their knowledge for jobs requirements, essential qualifications etc.   In Kunal Singh35, the appellant was re-cruited as a constable in the Special Service Bureau. When on duty he suffered a leg injury because of which his left leg was amputated. He was invalidated from service and declared permanently incapacitated for further service. The Court directed the respondent to give relief to the appellant in terms of  Section 47 of the Persons with Disability (Equal Protection of Rights and Full Participation) Act, 1995. Section 47 protects employees acquiring disability during service and mandates that no establishment shall dispense with, or reduce in rank an employee who acquires a disability during service. And if, after acquiring disability, he is not suitable for the post, he was holding, he could be shifted to some other post with the same pay scale and service benefits. It was held that since the above act was a special legislation giving protection to the disabled, Rule 38 of the Central Civil Service (CCS) Pension Rules, cannot overwrite Section 47 of the Act and that merely because the appellant got invalidity pension under Rule 38 of the CCS Pension Rules, this was no ground to deny the protection mandatorily available to the appellant u/S. 47 of the Act.  In All Kerala Parents Association36 the appellants made the grievance that Section 39 of the Persons with Disability (Equal Protection of Rights and Full Participation) Act, 1995 was not being given effect to as there was no 3% reservation of seat for persons with disability in Govt. institutions as well as educational institutions receiving Govt. aid. The Court set aside the interpretation of Section 39 given by the High Court that this section relates to reservation in Govt. employment and not in relation to admission of students with disabilities in Govt. institutions as well as educational institutions receiving Govt. aid. It held that Section 39 deals with both of the above also.  In Amita37 the petitioner a blind girl applied for the post of Probationary Officer in the Indian Overseas Banks. As she was blind she requested for a scribe. Her application was returned informing her that blind candidates were not recruited for the said post. It was held that being blind did not disqualify the petitioner from applying for the post. The Court held that if she chose to appear as a general candidate and write the exam she could do so. Denying her the right to appear in the examination was violative of Arts. 14 and 16 of the Constitution.  In Sanjay Kumar Jain38, the respondent who was working in Group C post of railways, applied for promotion. He qualified in the written test but could not pass the medical before the viva voce test as he was found to be visually handicapped. The Court relied on Section 47 of the Persons with Disability (Equal Protection of Rights and Full Participation) Act, 1995 to hold that there could be no discrimination in Government employment against disabled and no establishment could dispense with or reduce in rank an employee during his service. Section 47(2) clearly provided that no promotion could be denied to a person merely on the ground of his disability. Thus promotion of the respondent could not be denied on the ground of his disability.  In Javed Abidi39 a writ petition was filed to implement the provisions of Persons with Disability (Equal Protection of Rights and Full Participation) Act, 1995, as no effective steps had been taken for its implementation. The grievance was also made about lack of facilities, like providing aisle chairs and ambulifts by the Indian Airlines to disabled persons, to permit easy access to disabled persons specially those orthopaedically impaired and suffering from loco motor disability in aircrafts. During pendancy of the hearing, Indian Airlines, informed the Court that steps had been taken by it for the above. The Court directed Indian Airlines to grant concession provided by it to blind persons also to persons suffering from loco motor disability to the extent of 80% and above for travel within the country.  The issue of mismanagement of the hospital for mental diseases in Shahdara, Delhi came before the Court in B. R Kapoor40. It directed that the management of the hospital be taken over by the Union of India from the Delhi Administration and modelled like a similar institution run by NIMHANS at Bangalore so that modern amenities and treatment facilities are available to the mentally ill.    In Sheela Barse (II)41, the Court issued various directions with regard to rehabilitation of physically and mentally retarded children and also abandoned and destitute children lodged in various jails in the country in the name of ‘safe custody’. The Court recalled the National Policy for Welfare of Children made by it which contained the following declaration :  “The nation’s children are a supremely important asset. Their nurture and solicitude are our responsibility. Children’s programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skill and motivations needed by society. Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our large purpose of reducing inequality and ensuring social justice”.  In this case it was observed that if a child is a national asset, it was the duty of the State to look after the child for ensuring full development of his personality.   In Exploitation of Children in Orphanages in State of Tamil Nadu, in Re.42 it was brought before the Court that a large number of children below the age of 16 years were being illegally transported from the North- East States to the State of Tamil Nadu and that these children had been handed over by their parents to some persons due to poverty and social background thinking that the children would be provided with better education and health care. The Court issued notice to State of TN and asked the concerned SP to submit a report, subsequent to which all children were united with their families. Since it was alleged that the transportation was still going on, the Court directed the National Commission for Protection of Child Rights to conduct an inquiry with regard to transportation of children from one State to another.  In Bachpan Bachao Andolan43 the Court ruled that trafficking of children was a violation of Arts. 23, 39, 14 and 21. In this case the children were trafficked from various States and forcefully detained in circuses where they were exploited sexually, emotionally and physically. The Court directed that in order to implement the fundamental right of children under Article 21-A the Central Govt must issue notifications prohibiting employment of children in circuses within two months from the date of the judgment. They were also directed to conduct simultaneous raids in all the circuses to liberate children and keep the rescued children in Care and Protective Homes till they attain the age of 18 years. It also directed the respondent to rehabilitate the children with their families if possible besides framing proper schemes of rehabilitation.   In Bachpan Bachao Andolan44 the Court directed the State authorities that in case a complaint was made in a police station about a missing child it should be reduced to writing. The Court also directed the State authorities to set up adequate shelter homes for missing children who are recovered and do not have any place to go to and such homes were directed to be put in place within three months of the order.  In Court on its Own Motion45 the Delhi High Court accepted the Delhi Action Plan which provided a detailed procedure for interim care and protection for children rescued from forced labour to be followed by the Labour Department as prepared by the National Commission on directions of the High Court.  In R. D. Upadhyay46 the Court directed that children of women prisoners living in jail with their mothers should be given more protection. They should not be treated as under-trial/convicts while in jail and are entitled to food, shelter, medical care, clothing, education and recreation facilities as a matter of right. It passed various directions for their welfare i.e for children born in the jail due care should be taken and fact about their having been born in jail should not be mentioned in their birth certificate etc.  In Budhadev Karmaskar47 the Court or-dered for setting up a panel for resolving problem of sex workers. It observed that sex workers faces great difficulty in getting ration cards, voter I cards or in opening bank accounts and directed the authorities to see that the sex workers did not face such difficulties as they were also citizens of India and had the same fundamental rights.  In Valsamma Paul48, it has been ruled that human rights for women comprehends gender equality and it is also traceable to the Convention for Elimination of All Forms of Discrimination Against Women. Human rights for women, including girl child are inalienable, integral and an indivisible part of universal human rights. The full development of personality, fundamental freedoms and equal participation by women in political, social, economic and cultural life are held to be concomitants for national development, social and family stability and growth—cultural, social and economical. All forms of discrimination on grounds of gender are violative of fundamental freedoms and human rights.  Conferment of equal status on women apart from being a constitutional right has been recognized as a human right. In Bodhisattwa Gautam49, the Court observed that women have the right to be respected and treated as equal citizens. Accentuating on the concept, it proceeded to state thus:  “9. ...Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. Women, in them, have many personalities combined. They are mother, daughter, sister and wife and not playthings for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.”  In Chandrima Das50, it was case of gang-rape of a Bangladeshi national by the employees of the Indian Railway in a room at Yatriniwas at Howrah Station. These employees managed the Yatriniwas, the Government contended that it could not be held liable under the law of torts as the offence was not committed during the course of official duty. However, the Court did not accept this argument and stated that the employees of Union of India, who are deputed to run the railways and to manage the establishment, including the Railway Stations and Yatrinivas are essential components of the Government machinery which carries on the commercial activity. If any such employee commits an act of tort, the Union Government of which they are the employees can, subject to other legal requirement being satisfied be held vicariously liable in damages to the person wronged by those employees. The victim was awarded by the Court with a compensation of Rs.10 lakhs for being gang raped in Yatrinivas of Railways.   In Vishaka51, the Court took a serious note of the increasing menace of sexual harassment at workplace and elsewhere. Considering the inadequacy of legislation on the point, the Court defined sexual harassment and laid down instruction for the employers and thereafter the Court observed as under :  “Each incident of sexual harassment of woman at workplace results in violation of fundamental rights of “Gender Equality” and the “Right to Life and Liberty”.  In Miss C.B. Muthamma, IFS52 the con-stitutional validity of Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961 and Rule 18(4) of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961 was challenged before the Court. The impugned provision Rule 8(2) requires a woman member of the service to obtain permission of the Government in writing before her marriage is solemnized and at any time after the marriage, a woman member of the service may be required to resign from the service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service. Further, Rule 18(4) also runs in the same prejudicial strain, which provides that no married woman shall be entitled as a right to be appointed to the service. The petitioner complained that under the guise of these rules, she had been harassed and was shown hostile discrimination by the Chairman, UPSC from the joining stage to the stage of promotion. The Court held that these Rules are in defiance of Articles 14, 16 and 21. In Maya Devi53, the requirement that a married woman should obtain her husband’s consent before applying for public employment was held invalid and unconstitutional. The Court observed that such a requirement is an anachronistic obstacle to women’s equality. These two verdicts should be perceived as acceptance of individual rights within the constitutional flavour of social justice.   At this juncture, it is noteworthy that in Associate Banks Officers Association54, wherein the Court held that women workers are in no way inferior to their male counterparts, and hence, there should be no discrimination on the ground of sex against women.   In Municipal Corporation of Delhi55, the Court held that the benefits under the Maternity Benefits Act, 1961, extend to employees of the Municipal Corporation who are casual workers or workers employed on daily wage basis. Upholding the claim of non-regularised female workers for maternity relief, the Court has stated:  “Since Article 42 specifically speaks of ‘just and human conditions of work’ and ‘maternity’ relief, the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for determining the legal afficacy of the action complained of.”  Recently, in Jugendra Singh56 the Court, while commenting on rape and its consequences, observed thus:  “Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one’s physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected …….”57  In Gurnaib Singh58, Court has opined that respect of a bride in her matrimonial home glorifies the solemnity and sanctity of marriage, reflects the sensitivity of a civilized society and, eventually, epitomizes her aspirations dreamt of in nuptial bliss. But, the manner in which sometimes the brides are treated in many a home by the husband, in-laws and the relatives creates a feeling of emotional numbness in the society. It is a matter of great shame and grave concern that brides are burnt or otherwise their life-sparks are extinguished by torture, both physical and mental, because of demand of dowry and insatiable greed and sometimes, sans demand of dowry, because of the cruelty and harassment meted out to the nascent brides treating them with total insensitivity destroying their desire to live and forcing them to commit suicide a brutal self-humiliation of “Life”.  Offence of rape is the most heinous crimes. Every person’s physical body is a temple in itself. No one has the right to encroach and create turmoil. When there is any kind of invasion or trespass, it offends one’s right. The right of a woman to live with dignity is an epitomization of sacrosanctity. An impingement or incursion creates a sense of trauma in the mind of the person. Not only does the body suffer but the mind also goes through such agony and tormentation that one may not be in a position to forget throughout the life. That apart the offence of rape is an offence which creates a dent in the social marrow of the collective. While dealing with offences of this nature a Judge has to be exceedingly sensitive. A desensitized approach is not appreciated. It is the bounden duty of the Judge to show greater sensitivity. Though I have laid emphasis on the duty of the court, yet it is imperative that society as a whole must show requisite responsibility to curb this inferior endowments of nature.   In S. Samuthiram59 the Court observed that every citizen in this country has right to live with dignity and honour which is a fundamental right guaranteed under Article 21 of the Constitution of India. Sexual harassment like eve-teasing of women amounts to violation of rights guaranteed under Articles 14 and 15 as well. Eve-teasing is pernicious, horried and disgusting practice. Consequences of not curbing such a menace are disastrous. There are many instances where girls of young age are being harassed, which sometimes may lead to serious psychological problems and even committing suicide. Taking note of the absence of effective uniform law, certain directions were issued to curtail the menace. The said directions include to depute plain-clothed female police officers in the precincts of bus-stands and stops, railway stations, metro stations, cinema theatres, shopping malls, parks, beaches, public service vehicles, places of worship, etc. so as to monitor and supervise incidents of eve-teasing. The persons in charge of educational institutions, places of worship, cinema theatres, railway stations, bus-stands have to take steps as they deem fit to prevent eve-teasing, to establish women helpline in various cities and towns and also to control eve-teasing in public service vehicles either by the passengers or the persons in charge of the vehicle.  While dealing with violation of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex-Selection) Act, 1994, apart from giving series of directions, emphasis was also made on curbing the obnoxious practice of female foeticide in Voluntary Health Association of Punjab60. It has been held that Female foeticide has its roots in the social thinking which is fundamentally based on certain erroneous notions, ego-centric traditions, pervert perception of societal norms, and obsession with ideas which are totally individualistic sans the collective good. All involved in female foeticide deliberately forget to realize that when the foetus of a girl child is destroyed, a woman of future is crucified. To put it differently, the present generation invites the sufferings on its own and also sows the seeds of suffering for the future generation, as in the ultimate eventuate, the sex ratio gets affected and leads to manifold social problems. I may hasten to add that no awareness campaign can ever be complete unless there is real focus on the prowess of women and the need for women empowerment.  Further discussing about the repercussion of female foeticide it has been opined that every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leads to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it.   Reference was made to the scriptural comments and postulates. The Court referred to the Shloka the first line of which was referred to in Nikku Ram61. The judgment in that case commenced with the line [“Yatra naryastu pujyante ramante tatra dewatah”] (where woman is worshipped, there is abode of God). The second line being significant was reproduced. It is as follows: -  [Yatra tâstu na pûjyante sarvâstatraphalâh kriyâh]  A free translation of the aforesaid is reproduced below:-  “All the actions become unproductive in a place, where they are not treated with proper respect and dignity.”  Two other references that were given are stated below: -  [Bhârtr bhratr pitrijnâti Å“waÅ“rûswaÅ“uradevaraih| BandhubhiÅ“ca striyah pûjyâh bhusnachhâdanâœnaih||].  A free translation of the aforesaid is as follows:-  “The women are to be respected equally on par with husbands, brothers, fathers, relatives, in-laws and other kith and kin and while respecting, the women gifts like ornaments, garments, etc. should be given as token of honour.”  Yet again, the sagacity got reflected in following lines: - [Atulam yatra tattejah Å“arvadevasarirajam| Ekastham tadabhûnnâri vyâptalokatrayam tvisâ||]   A free translation of the aforesaid is reproduced below:-  “The incomparable valour (effulgence) born from the physical frames of all the Gods, spreading the three worlds by its radiance and combining together took the form of a woman.”  Access to justice is a facet of both legal justice and social justice. In early 1980s the Court felt the need to interpret Art. 21 so as to include the right to legal aid. It felt that the State was not providing aid to enable the poor to access justice in courts. In M.M Hoscot62 the Court held that it was a breach of Art. 21 to try a criminal case without giving the poor person proper and adequate legal representation and if the Magistrate did not inform the accused of this right the conviction would be set aside. Presently, it has gained ground in number of areas by virtue of Legal Services Authorities Act, 1987 and the Rules framed thereunder. The courts have also entertained social interest litigations.  In People’s Union for Civil Liberties63, the Court sought to ensure compliance with the policy of supplying mid-day meals in Government run primary schools. The scheme was launched to encourage enrollment of children from low income backgrounds in schools and to ensure adequate nutrition. However, there were problems like pilferage of food-grains in its implementation. The Court issued directions to the Government authorities for its proper implementation.   While dealing with the plea advanced by the State that the temporary night shelters should be closed because of unnecessary expenditure by the State exchequer the High Court of Delhi in Court on its Own Motion64 has observed thus:  “The heart of the matter is whether temporary night shelters are to be closed solely because there is expenditure despite a stipulation in the Master Plan 2021. That apart, this Court had passed many orders wherein it has been held to be the need and necessity. It has been canvassed with immense conviction, if we allow ourselves to say so, that the people do not come to shelter homes and, therefore, the establishment of shelter homes is an exercise in futility. The State Government is under obligation to have permanent shelter homes. True it is, we have been apprised that there have been some permanent shelter homes and some are running in temporary tents. A shelter home is expected to give adequate shelter and has to be made habitable where of the conditions must be acceptable to a person to live with dignity. Fixing a tent is a very marginal percentage of infrastructure, however, making provisions for stay in an acceptable dignified manner in a shelter home is the warrant. There has to be a galvanized effort to see that the people who rot on the streets know about the shelter homes, the facilities available therein and are motivated to stay therein. As rightly suggested by the Committee, a concerted effort has to be made. The Board has a sacrosanct duty to perform. When there is an obligation to do certain things, it has to be done and there cannot be any kind of shirking or escape on the ground that certain amount is expended unnecessarily”.  In conclusion, I can only say with humility that I have chosen some pearls from the store house of knowledge – that is fire of true sensibility. The choice is neither individualistic nor subjective. It is founded on certain objective criteria. I, for one, strongly believe that societal norms are to be respected by each individual unless they are contrary to constitutional normative philosophy and constitutional morality. As a member of the collective one must live and practise the idea of social justice so that ultimately the constitutional concept is concretized and “the head is held high” and no person becomes an unperson. Â

Author Name: Hon’ble Justice Dipak Misra