‘Law’ and ‘Justice’ are supposed to go hand in hand. If justice is the end, then Law is the means to achieve that end. Contemporary Indian society seems to be heading towards a never ending clash between Justice and law, resulting in the prevalence and dominance of law without justice. It is rather unfortunate that a democratic Nation following the rule of law should subdue and sacrifice justice. ‘Law’ it is said is the officially promulgated rules of conduct, backed by state-enforced penalties for their transgression. ‘Justice’ renders to each person what he or she deserves.
The Indian democracy along with its judicial system seems to have moved away from Justice to ‘law tokenisms’. Law has become a tool of oppression and discrimination and even subjugation of ideas and ideals.
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One could trace the roots of this problem to, how the judiciary interpreted the Directive Principles of State Policy incorporated in Part IV of the Indian Constitution.
The first step in this erring direction was taken in as early as the year 1951, when in the euphoria of the new Republic, the judiciary was anxious to prove to the world that Indian democracy respects and upholds the individual rights. That may be why, the Supreme Court in, State of Madras vs Champakaran Dorairajan laid down the rule that “The directive principles of State Policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights”.
This decision and many others following reduced the relevance and impact of the Directive Principles of State Policy in the law making processes, resulting in the ruling political dispositions enacting laws and laying down rules and policies, which are not necessarily in consonance with the Directive Principles, though Article 37 unequivocally says that the principles therein laid down are “fundamental in the governance of the country” and it shall be the duty of the State to apply these principles in making laws.
This would mean that there is a duty and an obligation on the law makers to ensure that each and every law that is being enacted has to be necessarily be, in consonance with the Directive Principles.
By taking this deviation and an interpretation, not based on any constitutional principles, that Fundamental rights takes precedence over Directive Principles. The Apex court diluted the impact of the Directive Principles on the governance of the Nation resulting in the present situation where the Supreme Court considerers it beyond its jurisdiction to probe into the purpose and objective of any legislation.
On could understand that in the nascent period of the Republic, economic as well as social situations in the Nation, would collapse if the Courts were to insist on fulfilment of the Directive Principles. The non enforceability of the Directive Principles meant, that the citizens cannot force the legislature/government to make any law specifically to fulfil any particular provision of the Directive Principles. But following the Directive Principles and fulfilling the objectives mentioned therein is definitely not a mere directive in view of Article 37, wherein it is stated that these Directive Principles are ‘fundamental to the governance’. By not considering this aspect of the Directive Principles and making them subordinate to fundamental rights, the courts have restricted its own jurisdiction and powers resulting in the present dichotomy between ‘Law’ and ‘Justice’.
The end result, is that laws are being made by the law makers to fulfil their own personal or perceived interests and not the interests of the Nation, thus taking the Nation further away from achieving the aims and objectives of governance as enunciated under the Directive Principles even after 70 years.
What is that the Nation failed to achieve? Just to cite a few illustrations from the Directive Principles: Though Article 38 provides that State shall strive to promote welfare of the citizens by securing and protecting a social order in which justice, economic, social and political, shall inform all the institutions of the national life. There are wide spread inequalities and disparities between citizens, as to how they are treated and protected by the State.
Similarly, Article 39 mandates that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. Exactly the opposite of what is required is happening now, with large scale unemployment, huge disparity in incomes and even influential private entities acquiring national assets such as airports, sea ports and even some public sector undertakings.
Further, though Article 40 mandates the States to take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. Even after the enactment of the Panchayati Raj Act, panchayats are not given the required autonomy to manage and develop their local areas.
The requirement under article 47 to improve public health as government’s primary duty. Is not fulfilled. India still lacks medical facilities and sufficient medical education institutions.
As per Article 48A, the State should protect and improve the environment and safeguard the forests and wild life of the country. This is being blatantly violated by many States.
The judiciary needs to hold as unconstitutional, all those laws/orders/notifications, which are in conflict with the Directive Principles, as Art 37 unequivocally declares that these Directive Principles are “fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” and thus restore justice in India. It’s time for the judiciary to tread the untrodden path for the sake of justice and for the Nation.
(The writer is a Professor of Law and an education consultant)
