Social Justice

Read clause (2) carefully, because it is the definition. Income inequalities are to be MINIMISED; inequalities in status, facilities and opportunities are to be ELIMINATED. And the unit is not only the individual but the group, whether identified by area or by vocation. A constitution that says that has committed itself to group-based remedies, which is the answer to any argument that the Constitution recognises only individuals.

Article 39 supplies the economic content: livelihood, distribution of material resources for the common good, prevention of concentration of wealth, equal pay, protection of the health and strength of workers and of children.

Article 46 supplies the social content: promotion with special care of the educational and economic interests of the weaker sections, and in particular of the Scheduled Castes and Scheduled Tribes, and their protection from social injustice and all forms of exploitation.

Four uses of the phrase in Indian law

One, as a directive. Articles 38, 39 and 46 direct policy, and a statute enacted under them has a constitutional object which supports its validity.

Two, as a canon of construction. Where a labour statute, a rent statute or a welfare statute is ambiguous, courts read it in favour of the person it was enacted to protect. That is a rule of interpretation with a name, and its name is social justice.

Three, as a justification for classification under article 14. A classification aimed at removing an existing disadvantage is reasonable because it serves the constitutional object.

Four, as an argument about the shape of the whole legal order. Ambedkar's warning about political democracy resting on social inequality is the fullest Indian statement of it, and it is quoted in the judgment worked in [What Law Cannot Do: The Limits of Legislating Change].

The criticisms, which MU's 2022 question invites

That the phrase is too vague to decide anything. Almost any policy can be defended as promoting social justice, and a term that cannot exclude anything cannot decide anything.

That group-based remedies entrench the groups. If benefits attach to a community, the community acquires an interest in remaining identified, which is the standing objection to caste-based reservation and is dealt with in [Reservation: The Constitutional Scheme].

That distribution without production is a distribution of shortage. The economic answer, and the reason article 41 carries the words "within the limits of its economic capacity and development".

And that the benefit reaches the top of the disadvantaged group. The creamy layer doctrine is the law's own acknowledgment of this, and it is worked in [Backward Classes, the Creamy Layer and the Ceiling].

MU's 2022 question puts the objection directly. Whether the reservation policy and scheme embodied in the Constitution has yet achieved its stated goal, explained in relation to the concept of social justice. That question wants the definition, the machinery, the evidence and a position.

A worked example

Two candidates apply for the last seat in a State medical college. Anjali's parents are doctors; Sunil is the first person in his family to finish school and belongs to a Scheduled Caste.

The corrective-justice account. They applied under the same rules and one scored higher. Whichever is admitted, the criterion should be the score, and to do otherwise is to treat one worse than the other for a reason unconnected with medicine.

The distributive-justice account. The two did not arrive at the examination hall from the same place, and treating unequally situated people identically reproduces the inequality rather than correcting it. The seat is a public resource being allocated across a society, not a prize in a private contest.

What the Constitution does with the two accounts. It keeps both. Article 16(1) and article 14 protect the first; article 15(4), article 16(4) and article 46 authorise the second; and the case law about the fifty per cent ceiling, the creamy layer and efficiency under article 335 is the law working out how much of each.

And the honest note. Nothing in the constitutional text says how much. That is the point made in [The Criticisms of Social Engineering]: the scale is written down, but where exactly the line falls is decided case by case.

What this does NOT mean

It does not mean social justice is the same as equality. Equality is a fundamental right with a text. Social justice is an objective, and it sometimes requires unequal treatment.

It does not mean it is enforceable. No suit lies for social justice, because articles 38, 39 and 46 are in Part IV.

And it does not mean it is only about caste. Article 38(2) names income, status, facilities, opportunities, areas and vocations, and this book applies the idea to women, to children, to linguistic minorities, to tribal communities and to the urban poor.

Quick revision

Social justice: the removal of disabilities and inequalities attaching to birth, sex, community or economic position, and the securing of the conditions of a dignified life. Preamble, first of three justices. Article 38(1), a social order in which justice informs all institutions; article 38(2), inserted 1978, minimise income inequality and eliminate inequalities of status, facilities and opportunities, among groups as well as individuals. Article 39, economic content; article 46, the weaker sections and the Scheduled Castes and Tribes. Distributive, not corrective. Four uses: directive, canon of construction, justification for classification, and an argument about the whole order. Four criticisms: vagueness, entrenchment of groups, distribution of shortage, and capture by the best-off within the group.

Test yourself

1. Define social justice as the Constitution uses it. The removal of the disabilities and inequalities that attach to a person by reason of birth, sex, community or economic position, and the securing to every person of the conditions of a dignified life; stated in the Preamble and elaborated in articles 38, 39 and 46.

2. Distinguish distributive from corrective justice and show why the distinction matters. Corrective justice repairs a wrong between two parties treated as equals; distributive justice allocates benefits and burdens across a society and takes account of starting positions. It matters because the objection to reservation is usually corrective and the defence is usually distributive, so the two arguments never meet unless the distinction is drawn.

3. What exactly does article 38(2) require, and why is its wording important? That the State strive to minimise inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only among individuals but also among groups residing in different areas or engaged in different vocations. The wording is important because it commits the Constitution to group-based remedies and because it asks for elimination of status inequality and only minimisation of income inequality.

4. Give two uses of social justice in legal reasoning that do not involve reservation. As a canon of construction, under which an ambiguous labour or welfare statute is read in favour of the person it protects; and as a justification supporting the validity of a statute challenged under article 14, because a classification aimed at removing an existing disadvantage serves a constitutional object.

5. State the strongest criticism and the law's own answer to it. That the benefit of a group-based remedy is captured by the best-off within the group, so the person it was designed for is reached last. The law's own answer is the creamy layer doctrine, which excludes the socially advanced among the beneficiaries from the benefit, though it does not apply to the Scheduled Castes and Scheduled Tribes in the same way.