Preamble and social justice

In the Preamble, the Constitution speaks of other forms of justice which a welfare state is
bound to dispense to the people who made the Constitution 1. Our Constitution aims at
securing "social, economic and political" justice as well. Hence, we have legally enforceable
Fundamental Rights and the Directive Principles provide for social and economic Justice as
well. A large number of the enacting provisions of the Constitution can be read to show the
ideal of social and economic justice. In Valsamma Paul vs. Union of India 2. Dr. Ambedkar's
closing speech on the Draft constitution delivered on November 25, 1949 was quoted wherein
he had said: "What we must do is not to be attained with mere political democracy; we must
make our political democracy a social democracy as well. Political Democracy cannot last
unless there lies on the basis of it as social democracy."

Then it was said: "Social democracy means 'a way of life which recognizes liberty, equality
and fraternity as principles of life." They are not separate items in a trinity but they form
union of trinity. To diverse one from the other is to defeat the very purpose of democracy.
Without equality, liberty would produce the supremacy of the few over the many. Equality
without liberty would kill individual initiative. Without fraternity, liberty and equality could
not become a natural course of things. Articles 15 (4) and 16 (4), therefore, intend to remove
social and economic inequality to make equal opportunities available in reality. Social and
economic justice is a right enshrined for the protection of society."

The Supreme Court went on to say that the right to social and economic justice is envisaged
in the Preamble and elongated in the Fundamental Rights and Directive Principles, in
particular Articles 14,15,16, 21, 38, 39 and 46 of the Constitution. Such justice can be
achieved when the quality of life of the poor, disadvantaged and disabled citizens of the
society is made meaningful. Equal protection requires affirmative action for the unequals. In
Muir Mills Co. Ltd. vs. Suti Mills Mazdoor Union 3Justice Bhagwati observed that the
concept of social Justice does not emanate from the fanciful notions of any particular
adjudicator but must be founded on a more solid foundation. Social Justice is a very vague
and indeterminate expression and no clear-cut definition can be laid down which will cover
all the situations.

1
Durga Das Basu, Constitution of India (Vol. A/1, 7th Edn.) P. 37
2
(1996) 3SCC 545, Para 6. Cited in Lahoti, The Preamble, "The Spirit and Backbone of the Constitution of
India", 101, Eastern Book Company, 2004.
3
(1955) 1 SCR 991, Cited in Lahoti, The Preamble, The spirit and Backbone of the Constitution of India. P. 103

1
The court noted, without commenting thereon, the suggested definition of social justice as
connoting "The balance of adjustments of the various interests concerned in the social and
economic structure of the State, in order to promote harmony upon an ethical and economic
basis." 4The emphasis is that everyone should get their just due for their labour irrespective of
caste, creed, religion or sex or social position. There should be an equitable distribution of
resources aimed at social democracy and a welfare state 5. Justice is an attribute of human
conduct. Law, as a means of social engineering, is to remedy existing imbalances, as a
vehicle to establish an egalitarian social order in a socialistsecular republic Bharat. The
Upanishad says that,” Let all be happy and healthy, let all be blessed with happiness and let
none be unhappy."Bhagwad Gita preaches through Yudhisthira that: " I do not long for
kingdom, heaven or rebirth, but I wish to alleviate the sufferings of the unfortunate 6

Nature and Definition of Untouchability

Dr. Ambedkar argued in “Who Were the Untouchables?” that untouchables were defeated
tribes or “Broken Men” who lived outside the villages of the more victorious tribes and, since
they were mostly Buddhist and refused to give-up their religion, they were subjected to the
worst forms of degradation by Brahmans” 7He further said that “Untouchablity was born
some time about 400AD.—out of the struggle for supremacy between Buddhism and
Brahmanism which has so completely moulded the history of India and the study of which is
so woefully neglected by students of Indian history. (Ambedkar 1990, 7:379) 8However,
endowed with such great humanitarian traditions of tolerance and respect for the mankind in
the holistic sense, the 6 (1955) 1 SCR 991, Cited in Lahoti, The Preamble, The spirit and
Backbone of the Constitution of India. P. 103. 7

Justice R.C. Lahoti, "The Preamble, The Spirit and Backbone of the Constitution of India",
104, Eastern Book Company, Lucknow, 2004. 8 Ibid 9 Justice R.C. Lahoti " The Preamble,
The Spirit and Backbone of the Constitution of India", 104, Eastern Book Company,
Lucknow, 2004. 10 Gail Omvedt,” Ambedkar, Towards An Enlightened India”, 138, Penguin
Books, Gurgaon, Haryana, 2008. 11 Ibid practice of untouchability appears to be a dark spot,
to say the least. Our Constitution has dealt with this problem in its own way. In the case of
4
Justice R.C. Lahoti, "The Preamble, The Spirit and Backbone of the Constitution of India", 104, Eastern Book
Company, Lucknow, 2004.
5
Ibid
6
Justice R.C. Lahoti " The Preamble, The Spirit and Backbone of the Constitution of India", 104, Eastern Book
Company, Lucknow, 2004.
7
Gail Omvedt,” Ambedkar, Towards An Enlightened India”, 138, Penguin Books, Gurgaon, Haryana, 2008.
8
Ibid

2
Devarajaiah vs. Padmanna9 it has been held by the Supreme Court that the subject matter of
Art. 17 is not untouchability in its literal or grammatical sense, but the practice as it
developed historically in India and that the word "Untouchalility" is used in that sense in the
Act. A literal construction of the term would include persons who are treated as untouchables
either temporarily or otherwise for various reasons such as their suffering from an epidemic
or contagious disease or on account of social boycott resulting from caste or other disputes.

Constitutional Provision

Article-17. Abolition of Untouchability:-"Untouchability" is abolished and its practice in any

form is forbidden. The enforcement of any disability arising out of "Untouchability" shall be
an offence punishable in accordance with law. From the perusal of Art. 17, it is amply clear
that the word “untouchability" has not been defined in it. The same is the case with the
Protection of Civil Rights Act, 1955. Wherein also the word untouchability has not been
defined. Mahatma Gandhi in his "My Philosophy of Life 10stated that 'untouchability means
pollution by the touch of certain persons by reason of their birth in a particular state of
family. It is a phenomenon peculiar to Hinduism and has got no warrant in reasons or
sastras". According to Dr. Ambedkar," The untouchability is the notion of defilement,
pollution, contamination and the ways and means of getting rid of that defilement. It is a
permanent hereditary stain which nothing can cleanse 11

Special Significance of Art. 17

Under Indian Constitution A. Path-breaking Precedent: Rights under Art. 17 are available
against private individual as well and it is the duty of the State to ensure that these rights are
not violated 12. B. Article 17 which makes the practice of untouchability an offence must be
read with Art. 35 (a) (ii) which confers upon Parliament the exclusive power to make laws
prescribing punishment for those acts which are declared to be offences under Part III. Art.
35 (b) continues existing laws which provide punishment for any act which is made an
offence under Part III, subject to adaptation or modification under Art. 372.

9
(1958) A Mys. 84, cited in H.M. Seervai, "Constitutional Law of India", Vol.1, 691, Fourth Edition, Universal
Law Publishing Company, New Delhi, 2012
10
Edited by A.T. Hingorani, 1961 Edn. at p. 146, cited in Jagdish Swarup, "Constitution of India", L.M.
Singhvi, Vol. I, P. 771, 3rd Edition, Thomson Reuters, New Delhi, 2013
11
State of Karnataka Vs. Appa Balu Ingale, AIR, 1993 SC 1126, Ibid
12
Peoples Union for Democratic Rights Vs. Union of India, AIR 1983 SC 1473, Ibid.

3
In the exercise of the powers, conferred by Art. 35, Parliament has enacted the
Untouchability (Offences) Act, 1955." For enlarging the scope and making the penal
provision more stringent, the Untouchability (Offences) Act, 1955 had been comprehensively
amended by the Untouchability (Offences) Amendment and Miscellaneous Provisions Act,
1976 which came into force from 19 November 1976. With this amendment, the name of the
principal Act has been changed to the Protection of Civil Rights Act, 1955 13The Act provides
penalties for preventing a person, on the ground of untouchability, from entering a place of
public worship and offering prayers or taking water from a sacred tank, well or spring. The
Act also prescribes penalties for enforcing any kind of social disability. Offences under the
Protection of Civil Rights Act, 1955 are cognizable as well as non-compoundable14.

Enforceability of Article 17:

15
According to Dr. Durga Das Basu Article 17 is one of the few anomalous provisions
included in Part III of our Constitution. The reasons cited by him are as under: 1. Firstly,
untouchability, arises out of private conduct and can hardly be committed by the State. The
possibility of the State supporting untouchability by legislation is also remote. Article 17 is
thus practically levelled against private conduct and has little place in public law. Of course,
it envisages a law to implement the Article to be made by Parliament [Art. 35 (a) (ii)]. But
that is only an enabling provision.

The only justification for its inclusion in Part III as against State action may be that any law
made before the Constitution which might be inconsistent with the abolition of untouchability
would be void under Art. 13 (1). 2. Secondly, though Article 17 itself doesnot create any right
in favour of the person against whom untouchability may have been practised, but merely,
forbids an action on the part of the wrongdoer and prescribes the remedy for violating that
prohibition, namely, that he will be punishable according to a law to be made by Parliament,
as regards regards the provisions of the Untouchability (Oences) Act, Ramaswamy J.

In the Karnataka case (para 24) has opined that it has not only created an offence but has
provided to the victim an enforceable civil right after declaring the disability caused by
untouchability as void. Dr. Basu, in his book "Human Rights in Constitutional Law", has

13
H.M. Seervai, "Constitutional Law of India" 691, Vol I, Fourth Edition, Universal Law Publishing Company,
New Delhi, 2012
14
L.M.Singhvi, "Constitution of India" 773, Vol I, Third Edition, Thomson Reuters, New Delhi, 2013.
15
Durga Das Basu, Commentary on the Constitution of India, 9th Edition, Vol.3, Lexis Nexis, Gurgaon,
Haryana, 2014, p. 3180

4
expressed his doubts about the maintainability of a Constitutional remedy when Art. 17
stands violated 16. However, Sir Ivor Jennings in his book "Some Characteristics of the Indian
Constitution" (1953) hazarded the opinion that even in such cases the Constitutional remedy
under Art. 32 would be available17. But in Peoples' Union for Democratic Rights Vs. U.O.I., 18
the Supreme Court observed impliedly that Art. 17 is an enforceable right. The Court said:
"Whenever any fundamental right which is enforceable against private individuals, such as
for example a fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the
Constitutional obligation of the State to take necessary steps for the purpose of interdicting
such violation and ensuring observation of the fundamental right by the private individual
who is transgressing the same.

Of course, the person whose fundamental right is violated can always approach the court for
the purpose of enforcement of his fundamental right, but that cannot absolve the State from
its Constitutional obligation to see that there is no violation of the fundamental right of such
person, particularly when he belongs to the weaker section of humanity and is unable to wage
a legal battle against a strong and powerful who is exploiting him."

Some Landmark Judgments of the Apex Court

Referring to Ranga Iyer’s Bill (in the Bombay Legislative Council), Ambedkar said: “-----. If
Untouchability is a sinful and immoral custom in the view of the Depressed classes it must be
destroyed without any hesitation even if it was acceptable to the majority. This is the way in
which all customs are dealt with by Courts of Law, if they find them to be immoral and
against public policy19. The Courts in India, specially the Supreme Court and the High Courts
have generally followed the above dictum of Dr. Ambedkar. Some of the landmark
judgments of the Apex Court produced below bear testimony to this fact.

1. Venkataramana Devaru vs. State of Mysore, 20: It would be an offence if a Hindu excludes
to harijan, on the ground of his birth, from his private temple. In this case Venkatarama
Aliyar, J., of the Supreme Court observed thus." ".......One of the problems which has been
exercising the minds of the Hindu social reformers during the period preceding the
Constitution was the existence in their midst of communities which were classed as
16
Durga Das Basu, Commentary on the Constitution of India, 9th Edition, Vol.3, Lexis Nexis, Gurgaon,
Haryana, 2014, p. 3182
17
Ibid
18
AIR 1982 SC 1473
19
Dhananjay Keer, "Dr. Baba Saheb Ambedkar", 229, Popular Prakashan, Mumbai, 2016
20
AIR 1958 SC 255.

5
untouchable. A custom which denied to large sections of Hindus the right to use public roads
and institution to which all the other Hindus has a right of access, purely on grounds of birth
could not be considered reasonable and defended on any sound democratic principle, and
efforts were being made to secure its abolition by legislation. This culminated in the
enactment of Article 17." (Para 23)

2. Basheshar Nath vs. Commissioner of Income Tax Delhi & Rajasthan 21In this case, Subba
Rao J., observed that "Article 17 illustrates the evil repercussion of the doctrine of waiver in
its impact on the fundamental rights. That article in express terms forbids untouchatiolity;
obviously, a person cannot ask the State to treat him as an untouchable."

3. Surya Narayan Choudhary vs. State of Rajasthan 22The division Bench of the Rajasthan
High Court in this case disapproved in strong words the prevailing practice of purification of
harijans alone before permitting them to enter into the temple for worship by making them
wear 'Kanthimala', sprinkling them with "gangajal" and giving them 'tulsidal'. The Court
ordered that the practice shall be discontinued forthwith since this condition imposed on
harijan devotees alone is discriminatory. This practice violates the right of equality
guaranteed to Harijans by Arts 14, 15 and 17 of the Constitution, the Court held. J.S. Verma,
C.J. observed that "It is tragic that on the eve of Gandhi Jayanti we are debating a Harijans'
right to enter a public temple for worship as an equal; and directions of the Court be needed
for enforcement of this right to equality. All men are born equal and the classification
between them thereafter is manmade and artificial against the divine dictate.

To present them as unequals before God is, therefore, injustice and an insult to our Maker
besides being contrary to the guarantee and mandete of equality in our Constitution and basic
human right."

4 State of Karnataka vs. Appa Balu Ingale 23In this case, the charge against the respondents
was that they restrained the complainant party by show of force from taking water from a
newly dug-up borewell on the ground that they were untouchables. K. Ramaswamy, J. held
that: "The thrust of Article 17 and the Act (Protection of Civil Rights Act, 1955) is to liberate
the society from blind and ritualistic adherence and traditional beliefs which lost all legal or
moral base. It seeks to establish a new ideal for society- equality to the Dalits, on a par with
general public, absence of disabilities, restrictions or prohibitions on grounds of caste or
21
AIR 1959 SC 149
22
AIR 1989 Raj 99
23
AIR 1993 SC 1126

6
religion, availability of opportunities and a sense of being a participant in the mainstream of
natural life." (Para 36).

5. State of M.P. and Another vs. Ram Kishna Balothia and Another 24It this case, the Supreme
Court held that section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 which contains non-applicability of provision for anticipatory bail
under sec. 438 cr. p.c. in respect of offences under Sec. 3 of the Act is not violative of Arts.
14 and 21 of the Constitution having regard to the historical background and social
conditions.

6. Swaran Singh vs. State 25In this case, the Supreme Court ruled that calling a member of the
Scheduled Caste "Chamar" with intent to insult or humiliate him in a place within public
view is certainly an offence under Sec. 3 (1) (X) of the Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act, 1989. The Court further held that whether there was
intent to insult or humiliate by using the word "Chamar" will depend upon the context in
which it was used.

7. Arumugham Servai vs. State of Tamilnadu 26Markandeya Katu, J. held in this case that-
"We would also like to mention the highly objectionable two tumbler system prevalent in
many parts of Tamilnadu. This system is that in many teashops and restaurants there are
separate tumblers for serving tea or other drinks to scheduled caste persons and nonscheduled
caste persons. In our opinion, this is highly objectionable, and is an offence under the SC/ST
Act, and hence those practising it must be criminally proceeded against and given harsh
punishment if found guilty. All administrative and police officers will be accountable and
departmentally proceeded against if, despite having knowledge of any such practice in the
area under their jurisdiction they do not launch criminal proceedings against the culprits."

8. Suhasini Baban Kate (Sou.) vs. State of Maharashtra 27[Offence of insult on the ground of
untouchability] The petitioner was a lady about 30 years. There were no bad antecedents to
her credit. She was a married woman with three kids, the youngest being of one year. The
alleged incident obviously occurred on the spur of moment and the alleged utterances were
also out of momentary rising of temper all of a sudden. Beyond certain bare utterances, the
petitioner did nothing more. However, she was kept in custody for three days. Having regard

24
(1995) 3 S.C.C. 221
25
(2008) 8 SCC 435
26
(2011) 6 SCC 405
27
1985 Mah LR 341, Cited in Singhvi, Constitution of India,Vol 1, P. 774

7
to the nature of the incident, it was found unnecessary to send her back to Jail and she could
well be released on the sentence already undergone in the interest of justice, although the
minimum sentence prescribed was one month.

9. Bagpat Case 28The Supreme Court on 16 sep 2015 directed the Delhi Police to protect a 23
year old dalit girl and her family who fled from Bagpat in Utter Pradesh to Delhi after a khap
panchayat condemned her and her younger sister to be raped and paraded naked as
punishment for their brother’s elopement with a married, dominant caste woman. In the third
consecutive hearing, a bench of Justices Chelameshwar and A.M. Sapre showed the highest
Judiciary’s deep concern for the family’s plight and ensured that the protecting arms of the
law was firmly in their support.

The girl had moved the court against the khap panchayat’s ire. The girl’s brother was arrested
in May, a day after he and the woman were handed over to the police. A local court ordered
his release on bail, but the family was unable to find anyone to serve as a guarantor. The S.C.
directed his release on a personal bond, and ordered the U.P. Police to form a team led by a
senior officer and investigate the drug charges (for being in illegal possession of psychotropic
substances) against him.

Conclusion

From the above discourse it can be said in no uncertain terms that our Constitution amply
contains the principles of Social Justice Right from the Preamble, Fundamental Rights to
Directive Principles of State Policy and in various other provisions. The Constitution truly
reflects the vision of welfare state with a view to ameliorating a historical injustice
perpetrated on Scheduled Castes, Scheduled Tribes and other downtrodden people widely
termed as Dalits. The Founding Fathers had introduced a right in the shape of Art. 17 which
is indeed a Fundamental Right and is justifiable too. Although the word "Untouchable is not
specifically defined in the said Article, yet it covers the whole gamut of social disabilities
hurled at the aforementioned persons." Affirmative action is thus inbuilt and interwoven in
our Constitutional scheme and does not require any external support. 29 In the light of this
Constitutional provision, many Acts have been passed by the legislature to safeguard the
interests of scheduled castes & scheduled tribes. Definitely, fundamental rights, such as those

The Hindu, dated 17 september 2015, p. 13

28

29
V.N. Shukla's Constitution of India, Ed. by Mahendra Pal Singh, P. A-49, Twelfth Edition, Eastern Book
Company, Lucknow, 2013.

8
guaranteed under Art. 17 are of no avail, unless the State is able to enforce them effectively.
Lastly, the Apex Court and other subordinate courts' role cannot be minimised at all.

The courts have acted like sentinels of democratic values and have preserved the spirit of
Constitution. Though the vicious practice of untouchability has got socio -political as well as
economic angles also, yet the driving force of the Constitution of India has undoubledly
dented the growth of untouchability in this country. Naturally, one can hope to look for
untouchability free society in India in the days to come, and to realize the dream of Social
Justice fulfilled in letter and spirit of the Constitution. While replying to the debate during the
third (and final) reading of the Constitution on November 25, 1949, Dr. Ambedkar made an
eloquent and spell -binding speech in which he also reflected about the future. He said: “On
the 26th of January 1950, we are going to enter into a life of contradictions.

In politics we will have equality and in social and economic life we will have inequality. In
politics we will be recognizing the principle of one man one vote and one vote one value. In
our social and economic life, we shall, by reason of our social and economic structure,
continue to deny the principle of one man one value. How long shall we continue to live this
life of contradictions? How long shall we continue to deny equality in our social and
economic life? If we continue to deny it for long, we will do so only by putting our political
democracy in peril. We must remove this contradiction at the earliest possible moment or else
those who suffer from inequality will blow up the structure of political democracy which this
Assembly has so laboriously built up30. This is high time we pay a heed to these prophetic
words in the interest of Indian democracy.

References

1. Basu, Durga Das, Commentary on the Constitution of India, Vol. 3, 9 th Edition, Lexis
nexis, Gurgaon, Haryana, 2014.

2. Jadhav Narendra, Ambedkar, Awakening India’s Social Conscience, Konark Publishers

Pvt. Ltd, New Delhi, 2014 .

3. Keer, Dhananjay, Dr. Baba Saheb Ambedkar, Popular Prakashan, Mumbai, 2016 .

4. Lahoti RC, PREAMBLE J . The spirit and Backbone of the Constitution of India, Eastern
Book Company, Lucknow, 2004.
30
Lahoti RC, PREAMBLE J . The spirit and Backbone of the Constitution of India, Eastern Book Company,
Lucknow, 2004

9
5. Om vedt, Gail, Ambedkar, Towards An Enlightend India, Penguin Books, Gurgaon,
Haryana, 2008 .

6. Singhvi LM. Jagdish Swarup; Constitution of India, Vol -1, Third Edition, Thomson
Reuters, New Delhi, 2013.

7. Seervai HM. Constitutional Law of India, Vol. -1, Fourth Edition, Universal Law
Company, New Delhi, 2012.

8. Shukla VN. Constitution of India, Twelfth Edition, Eastern Book Company, Lucknow,
2013.

10