ECONOMIC JUSTICE
By Shree Krishna Singh
Abstract
In present era a social welfare state is the need of hour and no state can become a welfare state unless and until it provides socio, economic and political justice to its subjects. The draftsman of the Indian Constitution enshrined provision in Constituion with keeping in mind view of a welfare state. Even language of preamble of the Indian Constituion contain the word which states that it is the obligation upon the state to secure to all its subjects social, economic and political justice, however mere inscription of these words will not suffice the interest of the peoples. To ensure the object of the preamble Indian Constitution provides many provisions which secure economic justice for its citizen. Some of the Fundamental rights and Directive principle of state policy carries the provision to provide economic justice to its subjects. Even Indian State is also tends to become social welfare state and the provisions enshrined under fundamental rights and directive principle of state policy helps the state to achieve such status. Researcher used the Doctrinal type of research to gather ample data for the research and accumulated them in a systematic way to create work which deifnes how Indian Constitution is working a protector of the peoples right. Constituion of Indian prescribed some fundamental rights to its citizen which are right in rem (available against the whole word) and these rights tend to promote economic justice to its subjects. Therefore Indian Constituion is the guardian of the rights of the people and tends to promote economic justice to its citizen for the development of the state.
KEYWORDS- Economic Justice, Fundamental Rights, Directive Principle of State Policy.
Introduction
Under International Law a State defined as “an Independent political entity, occupying a defined territory, the members of which are united together for the purpose of resisting external force and the preservation of internal order.” We can infer from this definition that it only lying emphasis upon the police function of the state however in modern era no state rests with such limited functions. It is tends to become a social welfare state and no state can become a welfare state unless and until it protects the economic interest of its subjects. Even Indian Constituion is tends to make a social welfare state through the economic justice. Preamble of the Indian Constituion contain the word which stated that it is the obligation upon the state to secure to all its subjects social, economic and political justice, however mere inscription of these words will not suffice the interest of the peoples. This research paper mainly focused upon the provisions related to the economic justice and seeks to explain different rights ensured by the Indian Constituion to promote economic justice to its subjects. Constitution of India provides different fundamental rights to the peoples of India and even ascribed some duty on the part of state under directive principle of state policy through which it ensures the economic justice to its people. This research paper can be divided in three parts first part have detailed analysis upon the fundamental rights of peoples which are important to ensure economic justice and second part dealt with directive principle of state policy to provide economic justice and last part consist of right to property (constitutional right) to ensure economic justice to the peoples of India. Researcher seeks to explain the importance of economic justice under a state with the help of different judicial pronouncements and tries to explore the different notions of economic justice. Right to equal pay for equal work, right to equality in opportunity in public employment, right to freedom of trade and commerce and living wage for the workers are the example of notions of economic justice which covered under this detailed analysis.
- Economic Justice under Indian Constituion
What is Economic Justice?
When we think about the economic justice what comes to in our mind, may be equal opportunity to all in matter of public employment, equal pay scale irrespective of caste, gender etc. we can say that economic justice is the component of social justice because it is a much bigger concept than economic justice, many of the time through social justice economic justice is done to peoples like equality of opportunity in public employment ensures not only economic justice but also social justice, somehow both of them interrelated with each other. We can also say that the main objective of the economic justice is to create foundation upon which all people have equal opportunity to live a dignified and productive life without any discrimination. [1]
Economic justice ensured how a person is going to produce an independent material foundation for his or her economic sustenance and provide them equal opportunity to do this. The ultimate purpose of economic justice is to free each person to engage creatively in the unlimited work beyond economics, that of the mind and the spirit.[2]
Fundamental rights ensuring Economic justice
Preamble considered as soul of the Indian Constitution where it enunciates the main objectives of the Indian Constitution which is to secure to all its citizens social, economic and political justice.[3] Fundamental rights provided in Part (iii) of the Indian Constitution, there are several articles contained under this part which ensures the economic justice to its all citizens like Art 16, 19, 23 and 24 etc.
Article – 16 (Equality of opportunity in Public Employment)
Article 16 can be divided in two distinct parts, where in first parts it is ensured that every person irrespective of his religion, race, caste, sex, decent, place of birth and residence will get the equal opportunity in matters relating to employment or appointment of any office under state.[4] On the other hand in second part article 16 have the notion of equity and stated that state have the power to make reservation for the backward class. The main reason behind reservation is the heterogeneity and multifarious population because many of the peoples of country are lagging behind in terms of culture, economy and education in comparison to others. Under Art–16 it is given that there should be equality of opportunity for all citizens in matters relating to employment or appointment of any office under the state, it also prohibits the discriminatory process in respect of any employment under the state. However state is free to make any provision for the reservation of appointments or posts in favor of nay backward class of citizens which, in opinion of the state, is not adequately represented in the services under the state. In simpler words Art-16 of the Indian constitution ensures that all its citizens will get the equal opportunity to earn their livelihood in terms of economy. Main object of this article is to facilitate the economic justice between peoples and eradicate the inequality in terms of employment. Equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent classes.[5] Basically it means that backward class peoples can be provided some sort of extra privilege in respect of employment. If we look at the structure of the Article 16 of constitution, one can clearly say that this article is fully devoted towards ensuring economic justice to its subjects. In Indra Sawhney V. Union of India[6], known as the Mandal Commission case, is a very significant pronouncement of the Supreme Court of India on the question of reservation of posts for backward classes. In this case court held that reservation cannot exceed 50% in any one year.[7]
Article – 19 (Right to Freedom regarding certain rights)
Article 19 of the Indian Constitution can be divided into two distinct parts from the point of view of economic justice. The first one is relates to article 19 (1) (g), where it is given that all citizen have the right to practise any profession, or to carry on any occupation, trade or business. Before the 42nd amendment Indian constitution also have the right to property as fundamental right however it repealed after the amendment. On the other hand second part comprised of article 19(6). Where state has the power to impose reasonable restriction upon the right ensured by the 19(1) (g). After 42nd amendment under Indian Constitution a new world was added in preamble which is the ‘Socialist’. if we look at the strict meaning of socialist in terms of economy, it will reflect that complete and rigorous state ownership as a matter of policy. However it does not mean that total exclusion of private ownership from the means of production, In India there has always been emphasis upon mixed economy which means that state will have ownership in matters relating to means of production however it can only impose reasonable restriction upon the private ownership.[8] In different cases like Excel wear v. Union of India[9]Supreme court clarifies that the word socialist will not recognizes the complete state ownership and government will work as a mere facilitator rather than as a controller. However it does not mean that government do not have the power to create it supremacy; in different cases like Akadasi Padhan v. State of Orissa,[10] the Supreme Court upheld the validity of and Orissa law conferring monopoly rights on the state in matter of trade in kendu leaves. State can create the monopoly in the favor of its own but not in the favor of the third party[11], the profits arising from the sale must be for the public benefits not for the benefits of the third party, Monoply in a commodity may be valid if it is only for the benefit of the state. It should not serve the private interests of any one person or classes of person.[12]
Article 19 (6) stated that state can impose reasonable restrictions, however there is question comes to one’s mind is that what are there reasonable restrictions. Indian judiciary with the help of different cases pronounced the valuable judgments where it laid downs the limit to which extent a restriction can be posed by state. The factors which determine the reasonableness of a restrictions are differ in every case according to its circumstances, there is no hard and fast rule is there, however a restriction cannot be impose arbitrarily on the persons. In chintaman Rao[13] The Supreme Court laid down the test for reasonable restriction as follows “ the phrase reasonable restriction connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the intrest of the public. The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates legislation which arbitrarily or excessively invades the right cannot said to contain the quality of reasonableness and unless it strikes the proper balance between the freedom gurantted by article 19 (1) (g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality”[14] In Indian history there are cases where street hawkers claim the right enshrined under Article 19(1) (g), however Court pronounced the some rich judgments regarding to the right of street hawker to carry on their trade on public streets. Cases like Bombay Hawakers Union v. Bombay Municipal Corporation[15], Sodan Singh v. New Delhi Municipality[16], Supreme Court draw out some points rights of Street Hawkers.
- No one has a right to do business so as to cause annoyance or inconvienece to members of public. Public streets are meant for use by the general public; they are not mean to facilitate the carrying on of private trade or Business.[17]
- Right to carry on trade or business mentioned under art 19 (1) (g) on street pavements. They are meant for use by pedestrians, these pavements cannot used in any other manner. Court stated that Street hawkers don not have fundamental right to occupy a particular place on the pavement where they can squat and can do business. However court directed that there should be hawking zones in the city where licenses should not be refused to a Hawker.[18]
Article – 23 and 24 (Right against exploitation)
Whenever we look at the Article 23 and 24 of the Indian Constitution, all we have got is that both of them one way and other prohibiting something, the first one is prohibiting human forced labour and second one prohibiting employment of children in factories. Both of these section on the outer side looks like that they are serving social justice more than anything, however if we pierce their shells we will get to know they are serving economic justice too. It is not explicitly given there but manifested inherently.
Indian Constitution under article 23 seeks to prohibit the forced labour which ultimately leads to economic justice to the peoples because no one has the right to exploit others economically. Forced Labour refers to a person who is forced to render his service without any remuneration at all. In People’s Union for Democratic Rights v. Union of India,[19] Supreme Court of India prohibited the every form of forced labour and provided justice to peoples economically. In this case Supreme Court of India broadened the horizon of term Forced labour, prohibiting the every form of it. A forced labour arise from different forms “The word ‘Force’ must therefore be construed to include not only physical or legal force but also force arising from compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than minimum wage.”[20]
In the words of Bhagawati, J,:
“Where a person is suffering from hunger or starvation, when he has no means to feed his wife and children or even to hide their nakedness, where utter poverty has broken his back and forced him into the state of helplessness. In such kind of situations if any time of work comes his way irrespective of its remuneration, he have to accept it because he is not in the position to bargain with employer. And in doing so he would be not acting as free agent but under such compulsion of economic circumstances and the labour or service provided by him would be clearly Forced Labour’.[21]”
Article 23 is also seek to prohibit bonded labour which means that one person is bonded to provide labour to another for years and years until a debt is supposed to be wiped out. The bonded labour is designed to enable a few socially and economically powerful persons to exploit weaker section of the society which ultimately lead to economic injustice to the exploited peoples.[22] There are the cases where Indian judiciary pronounced the valuable judgments regarding to bonded labour. In Bandhua Mukti Morcha v. Union of India[23] Supreme Court observed that “the concept of bonded labour is totally incompatible with the new egalitarian socioeconomic order which we have promised to build and it is not only an affront to basic human dignity but also constitutes gross and revolting violation of constitutional values.”
We can say that Article 23 is the best article to securing economic justice because it tries to put weaker section of society to equal footing as other section of society and ensuring them economic justice. Judiciary interpreted this article in such a way that this article not only prohibits the bonded labour but also making obligation on the state for the rehabilitation of the freed bonded labourers.[24]
Article 24 is also dealing with Economic exploitation however it is limited to children’s. This article seeks to ban the child labour in the country however it is realized that a total ban on child labour may not be socially feasible to the Indian society because of its gross poverty. It only prohibits the employment of the child below the 14 year to work in any factory or mine, or in any other hazardous employment. In cases like Laborers Working on Salal Hydro project v. State of Jammu and Kashmir[25] and M.C. Mehta v. State of Tamil Nadu[26] Indian Judiciary have made his stand against the Child Labour and seeks to alleviate the condition of poor child’s. This article is also serving people to economic justice, because of child labour prohibition, child will not go to work and he will receive free education by the state which ensures economic justice because they are getting equal opportunity to create economic means to survive.
- Ensuring Economic Justice through Directive Principle of State Policy
Art – 38 (State to secure a social order for the promotion of welfare of the people)
The directive principle of state policy seek to give direction to the government and legislatures in India as to how and in what manner and for what purpose, they are to exercise their power however these principles are non-enforceable against state unlike fundamental rights. Article 38 (1) directs the state to strive “To promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, socio, economic and political, shall inform all the institutions of the national life.” Somehow article 38 is reaffirming the main object of the preamble of Indian Constitution viz,. The function of the republic is to secure social, economic and political justice for its citizen and it clearly enshrined in our preamble.[27]
Article 38 (2) putting the obligation upon the state to minimize the inequalities in income, inequality in status and facility and opportunity to everyone without any discrimination. We can infer from the structure of Article 38(2) that it clearly framed to provide economic justice because it seeks to eliminate income and opportunities inequality to the peoples of India. In Sri Srinivasa theatre v. Govt. of Tamil Nadu,[28] Supreme Court envisaged the notion of equality under article 38 “Equality before law is a very dynamic concept having many facets and it will not be possible to ensure equality before law without equality in society.” Supreme Court has pointed that state has all power to equalize the society including taxation and other policies. The great burden of taxation is put upon the rich to equalize the society. Article 38 is mainly dealing with the social justice however it serves economic justice too like providing equality in income have two facets, first one is that it will leads to the economic justice on the other hand impliedly it ensuring social justice because equality in income will bring equality in status.
Art – 39 (Certain Principles of policy to be followed by state)
Article 39 of the Indian Constitution, explicitly showing traces of economic justice, this article requires the state, to direct its policy toward securing some of the rights of people which can benefit them economically. Supreme court has taken recourse to Article 39(a) to interpret with Article 21 and observed that “Any person who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation of the as offending the right to life conferred by article 21[29]”
Article 39(b) and (c) is ensuring distribution of ownership or distributive economic system, these provisions are so significant as they can affect entire economy of India. This article is the classic example of the socialism under the Indian constitution where it seeks to provide economic justice. The expression material resources of the community under article 39(b) covers the land held by private owners also. Government can take the private lands for the development of the community like in making roads, drains, playground etc.[30]A socialistic state always seeks to provide socio-economic justice to its subjects.
Article 39(d) is also ensuring the principle of equal pay and equal work. It stated that it is the duty of the state to provide equal wages for equal work irrespective of gender. Supreme Court stated that though the principle of equal pay for equal work is not expressely declared by the constitution to be a fundamental right yet it may be deduced by construing article 14, 16 and 39(d). The word socialist at least mean equal pay for equal work for the people. In a case Girh Kalyan Kendra v, Union of India,[31] it is observed that “Equal pay for equal work doctrine will be applied widely to stop discriminatory practices.” Men and women both will receive equal pay for their equal work and no one can discriminate between them in terms of gender Court also made clarification that doctrine of equal pay and equal work was originally propounded in directive principle of state policy, however this doctrine has assumed the status of a fundamental right under article 15 and 16 of the Indian constitution. Even in Randhir Singh v. Union of India[32] the Supreme Court of India was held that doctrine of equal pay for equal work though not a fundamental right is certainly a constitutional goal and, therefore, capable of enforcement through constitutional remedies under article 32 of the Indian constitution. We can lucidly infer from this article is that it is devoted to it people to ensure economic justice.
Art – 43 (Living wage, etc., for worker)
Principles which enunciated by the draftsman of Indian constitution in Article 43 shows that they felt a deep concern for the welfare of the workers in terms of economic matter. This article require the state to endeavor to secure, by suitable legislation, or economic organization, or in any other way, to all workers, agricultural, industrial or otherwise, work, a living conditions or work ensuring descent lifestyle and social and cultural opportunities.[33] This provision enunciates the revolutionary doctrine that employees have right to certain reliefs and saving them from any kind of economic exploitation. Article 43 refers to a “living wage” and not “minimum wage”. The concept of living wage includes in addition to the bare necessities of life, such as food, shelter and clothing, provision of education of children and insurance.[34] Supreme Court of India gave much more importance to this article in D.S. Nakara v. Union of India[35], the constitution bench of the Supreme Court has held that “Pension is not only compensation for loyal service rendered in the past, but also by the broader significance it is a social welfare measure rendering socio-economic justice by providing economic security in fall of life when physical and prowess is ebbing corresponding to aging process.[36]”
Under this Article Court bring the idea of socialism again to ensure economic justice to its people. According to the court, the principle aim of the socialism state is to eliminate economic inequality prevailing under the state and if the state is not able to provide living wage to the employees how it is going to setup a welfare state. This article also seeks to prevent economic exploitation of the employer. In a case M.R.F. Ltd. v. Inspector, Kerala Government[37] before Supreme Court observed that it is not the philosophy of the article 43 that industrial or agricultural workers should work on all days. It is necessary that they also enjoy some holidays. As human beings, they are entitled to a period of rest which would enable them to fully enjoy their leisure and participate in social and cultural activities.[38]
Art – 46 (Promotion of educational and economic interests of Scheduled castes, Schedule tribes and other weaker sections)
India is a country of religion. There exist multifarious religious groups in the country and there population of India is so heterogeneous. Article 46 of the Indian constitution made obligation upon the state to promote weaker section of the society with utmost care and to protect them from social and economic injustice and all forms of exploitation.[39] Supreme court observed that expression ‘weaker section’ in article 46 is much broader than ‘backward classes’ because the last one includes people who are socially, educationally and economically backward and people who are not represented adequately in the service under the state. However term weaker section can also take within its compass individuals who constitute weaker section or weaker parts of the society.[40]Supreme Court also observed that Article 46 has notion of distributive justice because it seeks to protect and preserve the economic interests of persons belonging to schedule castes and schedule tribes.
In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan[41], Supreme court clarified that “Article 38, 39 and 46 mandate the state, as its economic policy, to provide socio economic justice to minimize inequalities in income and in opportunities and status and further stated that state is under the obligation to work for the welfare of the society and to make socio-economic justice a reality, meaningful and fruitful so as to make the life worth living with dignity.[42]” There is nothing to infer from this article because everything explicitly is given in the article even Supreme Court, also gave the utmost importance to this article and consider this article as a sign of economic justice to its subject.
Conclusion
After completing the research, it can be concluded that Indian Constitution provides detailed analysis regarding to promotion of economic justice throughout the territory of India between its citizens. Constituion of Indian prescribed some fundamental rights to its citizen which are right in rem (available against the whole word) and these rights tend to promote economic justice to its subjects. Main object of article 16 is that to facilitate the economic justice between peoples and eradicate the inequality in terms of employment. Even in our preamble the word socialist was incorporated through the 42nd amendment which means that state have the complete power to control the economic affairs however in India there is a difference because we have mixed economy where both private and state ownership exist side by side and Supreme court clarifies that the word socialist will not recognizes the complete state ownership and government will work as a mere facilitator rather than as a controller. Article 19 also promote economic justice because 19 (1) (g) provide peoples to practise any profession, or to carry on any occupation trade or business however state can impose some reasonable restriction. One might think that on one hand it giving a right and another hand restricting, the answer is that these rights are no absolute in terms, if these restriction will not imposed it will lead to the destruction of justice to the peoples because one can use them as arbitrarily. Article 23 and 24 also are the way to ensure economic justice because they tend to prohibit bonded labour which economically exploited by the strong section of society and prohibit child labor to save children from the exploitation. These prohibitions helped the state to promote economic justice the peoples. Even directive principle of state of policy contain of some duty which are obligatory in nature on the state tend to promote welfare among its subjects. Article 38(2) state that state will strive to minimize the economic inequalities prevailing among its subjects and article 43, this provision enunciates the revolutionary doctrine that employees have right to certain reliefs and saving them from any kind of economic exploitation. Article 43 refers to a “living wage” and not “minimum wage”. The concept of living wage includes in addition to the bare necessities of life, such as food, shelter and clothing, provision of education of children and insurance. Therefore Indian Constituion is the guardian of the rights of the people and tends to promote economic justice to its citizen for the development of the state.
[1] Economic Justice, available from http://www.investopedia.com/terms/e/economic-justice.asp?layout=infini&v=4A&adtest=4A, accessed on 3/7/2016.
[2] Economic Justice, available from https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=11&cad=rja&uact=8&sqi=2&ved=0ahUKEwiDjqOq-a7LAhWHCo4KHZauBOUQFghTMAo&url=http%3A%2F%2Fcondor.depaul.edu%2Fjwillets%2Faeseminar%2FEconomic%2520%26%2520Social%2520Justice.rtf&usg=AFQjCNGoOouqqlRykcIOkCflCE0pl428wQ&bvm=bv.116274245,d.c2E, accessed on 3/03/2016.
[3] M.P. Jain, Indian Constitutional Law, LexisNexis, 12 (7th ed.2016).
[4] Ibid,p.967.
[5] Ibid,p.965.
[6] AIR 1993 SC 477: 1992 Supp (3) SCC 217.
[7] M.P. Jain, Indian Constitutional Law, LexisNexis, 997 (7th ed.2016).
[8]Ibid,p.14.
[9] AIR 1979 SC (36).
[10] AIR 1963 SC 1074 : 1963 Supp (2) SCR 691.
[11] State of Rajsthan v. Mohanlal, AIR 1971 SC 2068 : (1971) 3 SCC 705.
[12] M.P. Jain, Indian Constitutional Law, LexisNexis, 1067 (7th ed.2016).
[13] Chintaman Rao v. state of Madhya Pradesh, AIR 1951 SC 118
[14] M.P. Jain, Indian Constitutional Law, LexisNexis, 1071 (7th ed.2016).
[15] AIR 1985 SC 1206 : 1985 (3) SCC 528.
[16] AIR 1989 SC 1988 : (1989) 4 SCC 455.
[17] M.P. Jain, Indian Constitutional Law, LexisNexis, 1075 (7th ed.2016).
[18] Ibid.
[19] AIR 1982 SC 1473 : (1982) 3 SCC 235.
[20] M.P. Jain, Indian Constitutional Law, LexisNexis, 1235 (7th ed.2016).
[21] M.P. Jain, Indian Constitutional Law, LexisNexis, 1235 (7th ed.2016).
[22] Ibid,p.1238.
[23] AIR 1984 SC 802 : (1984) 3 SCC 161.
[24] Neeraja Chaudhary v. State of Madhya Pradesh AIR 1984 SC 1099 : (1984) 3 SCC 243.
[25] AIR 1984 SC 177 : (1983) 2 SCC 181.
[26] (1996) 6 SCC 756 : AIR 1997 SC 699.
[27] M.P. Jain, Indian Constitutional Law, LexisNexis, 1416 (7th ed.2016).
[28] AIR 1992 SC 999, 1004 : (1992) 2 SCC 643.
[29]M.P. Jain, Indian Constitutional Law, LexisNexis, 1418 (7th ed.2016).
[30] Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 445 (52nd edition 2015).
[31] AIR 1991 SC 1173, 1176 : (1991) 1 SCC 619. .
[32] Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 447 (52nd edition 2015).
[33] M.P. Jain, Indian Constitutional Law, LexisNexis, 1428 (7th ed.2016).
[34] Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 52nd edition, Allahabad, 2015,p.449.
[35] AIR 1983 SC 130 : (1983) 1 SCC 305.
[36] M.P. Jain, Indian Constitutional Law, LexisNexis, 1429 (7th ed.2016).
[37] AIR 1999 SC 188 : (1998) 8 SCC 227.
[38] M.P. Jain, Indian Constitutional Law, LexisNexis, 1430 (7th ed.2016).
[39] Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 449 (52nd edition 2015).
[40] M.P. Jain, Indian Constitutional Law, LexisNexis, 1433 (7th ed.2016).
[41] AIR 1997 SC 152 : (1997) 11 SCC 121.
[42] M.P. Jain, Indian Constitutional Law, LexisNexis, 1434 (7th ed.2016).