Law and Justice in the Indian Constitutional Order

In one line

The Indian Constitution does not leave the relation between law and justice to theory; it settles it, in the Preamble, in Article 13, in Part IV and in the doctrine the Supreme Court built on Article 368.

In the wording a student can write in an exam: the Indian constitutional order takes a position on the relation between law and justice. The Preamble declares justice, social, economic and political, as the object of the constitutional enterprise. Article 13 makes a law void for inconsistency with the fundamental rights, so that enactment alone does not confer validity. Part IV, with Article 37, states goals of justice that are fundamental and unenforceable, which is the dependency position. And the basic structure doctrine subjects even the amending power to a standard, which is the independence position. The order is therefore committed to justice as a measure of law, applied through the Constitution rather than over it.

The four textual commitments

1. The Preamble. "JUSTICE, social, economic and political" is the first of the four objects, and it is placed before liberty, equality and fraternity. It has been held to be part of the Constitution and a key to its interpretation, and it is the reason a court construing an ambiguous provision may prefer the reading that advances justice.

2. Article 13. Clause (1) makes pre-Constitution laws void to the extent of inconsistency with Part III; clause (2) forbids the State to make any law taking away or abridging those rights and declares such a law void. This is the independence structure written as a rule: a valid legislature enacting in due form produces nothing if the content offends.

3. Part IV with Article 37. The directive principles are fundamental in the governance of the country and it is the duty of the State to apply them in making laws, but they are not enforceable by any court. Justice as a standard, awaiting law: the dependency position.

4. Article 32. The remedy is itself a right, so the machinery by which the standard is applied cannot be withheld.

The doctrinal commitments

The basic structure. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, holds that the amending power does not extend to damaging or destroying the basic structure. The standard is not in Article 368, so it is a measure of enactment that is not itself enacted.

The balance between Parts III and IV. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

Facts. A sick textile undertaking was taken over and nationalised, and the Act placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976. Section 55 inserted clauses (4) and (5) into Article 368; section 4 widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19.