Social Justice vs. Constitutionalism: India’s Democratic Dilemma?

Authored by Adarsh Philip Roy, a law student pursuing LLM at The West Bengal National University of Juridical Sciences (NUJS)

Dr. B. R. Ambedkar

A nation’s constitution is a set of fundamental principles, laws, precedents, and conventions that establish and govern it. It defines the structure, powers, and functions of government institutions while outlining citizens' rights and duties. Constitutionalism, on the other hand, refers to the principle that government power is derived from and is limited by a constitution. It ensures that power is exercised according to established legal frameworks. There is no exhaustive list of principles that defines constitutionalism. However, its core features include the rule of law, separation of powers, checks and balances on government power, free and fair elections, an independent judiciary that has the power to protect the civil liberties of the citizenry, etc. The Indian Constitution embodies constitutionalism by adhering to these just and reasonable principles.

The Cambridge dictionary defines Social Justice as “the idea that all people should have the same rights and opportunities and that a country's wealth and resources should benefit everyone in that country”. Social justice extends not only to equality in the formal sense but equity as well. Social justice in the Indian Constitution is instituted considering India’s unique social realities and challenges.

But is there an inherent conflict between social justice and constitutionalism? Is the notion of social justice an antithesis to the concept of constitutionalism? In order to understand this question better, we need to understand what social justice is in the Indian context.

The Social Justice Framework in the Indian Constitution

The nature of social justice changes from country to country, as the socioeconomic conditions of different countries are different. Achieving social justice in India is a complex process requiring joint efforts from both public and private entities, with the state playing a crucial role. The Indian Constitution advocates for social justice through various provisions, and these primarily include:

Affirmative Action

Affirmative action refers to those policies and programs typically made by the government to counter historical discrimination, disadvantage and underrepresentation faced by certain communities by providing preferential treatment to such individuals or groups. Preferential treatment can include reservations, quotas, diversity initiatives, contract set-asides, training and development programs or support services. In India, affirmative action mainly takes two forms, i.e. diversity initiatives and reservation schemes. Diversity initiatives are government policies and programs aimed at fostering inclusion and equal opportunities for people from varied backgrounds through mentorships, outreach, and scholarships. The National Fellowship for SC Students (NFSC) is a good example of a diversity initiative.

Abolition of Untouchability

Untouchability was abolished in India by virtue of  Article 17 of the Indian Constitution and was subsequently criminalised by ‘The Protection of Civil Rights Act, 1955’

Land Reforms

Land reforms in India were government-led measures aimed at restructuring land ownership, tenancy, and use to promote social justice. This included abolishing the colonial Zamindari system through state laws (notably in Kerala and West Bengal), implementing land ceiling, and using planning laws that limit and redistribute excess land to the landless. Land reforms also involved enacting tenancy legislation to protect tenant farmers’ rights, regulate rents, and ensure security and support for sharecroppers.

Directive Principles of State Policy

Article 38 mandates the state to minimise inequalities in income, status, and opportunities. This is not limited to individuals but also applies across social groups. Article 38 also directs the state to establish a just social order in which all national institutions operate with justice and fairness. DPSPs, such as Article 46 (uplifting Scheduled Castes, Scheduled Tribes, and other weaker sections) and Article 42 (providing maternity relief), have influenced key welfare laws and policies, including MGNREGA and The Right to Education Act.

Religious and personal liberty (Articles 25-30) Protection of Minorities and Dalit Rights

Articles 25 to 30 of the Indian Constitution talk about the right to freedom of religion as well as educational and cultural rights. They uphold social justice while at the same time protecting religious and personal liberty.  They also safeguard the collective rights of minorities and socially backward communities like Dalits by promoting inclusivity, considering India's diverse social fabric.

Does Upholding Constitutionalism Compromise Social Justice?

When we examine the core ideas and principles underlying constitutionalism and social justice, the deep-rooted questions that emerge are:

Can a system bound by legal constraints and procedural formalism adequately address deep-rooted inequalities and historical injustices?

Does constitutionalism, with its emphasis on the rule of law, limited government, and institutional checks, limit the authority of the state in implementing transformative social action?

This tension between the concepts of social justice and constitutionalism becomes especially striking in postcolonial societies like India.

While social justice aims to rectify historical injustices and promote equality, some argue that its pursuit can sometimes conflict with constitutionalism. Controversy may arise regarding the method by which social justice is implemented. 

1. Firstly, it is argued that there could be a potential erosion of the rule of law. Constitutionalism requires the neutral and consistent application of laws. Social justice, however, introduces differential treatment to persons situated differently in society (e.g., reservations, affirmative action). Critics argue that prioritising outcomes over principles weakens the impartiality of the legal system.

2. Secondly, it is argued that social justice initiatives could conflict with individual rights. It is argued that some social justice measures prioritise collective rights over individual freedoms (e.g., speech restrictions to prevent offence to minorities and women, wealth redistribution through heavy taxation, etc). Opponents of such initiatives argue that, even if well-intended, these policies can infringe upon property rights, economic freedoms, freedom of speech and expression or merit-based opportunities.

3. Thirdly, it is argued that excessive social justice is a threat to limited government. Constitutionalism promotes checks on state power, while expansive social justice policies increase government intervention. Government intervention can range from intervention in markets, personal choices, and institutional operations. If unchecked, this can expand state authority and also create an enormous fiscal burden beyond constitutional limits (e.g., excessive state control over industries).

4. Fourthly, it is argued that judicial activism for social justice undermines the legislative process. This is especially true in a nation like India, where the constitutional courts are vested with wide powers.

5. Fifthly, it is argued that excessive focus by the government on social justice can lead to populism and majoritarianism to appease the majority for electoral gains. For example, certain welfare schemes or preferential laws may be used for political gains rather than genuine equity, distorting constitutional governance.

Are the Ideas of Social Justice and Constitutionalism Conflicting?

The answer to this can be found by looking into the particular scheme of the policy concerned and the quantum of state intervention.

Firstly, the author argues that differential treatment can be constitutionally justified under certain circumstances. The Supreme Court in the case of State of Kerala vs. N.M. Thomas (1976) interpreted Article 14’s 'equal protection of the law' to validate reservation policies. However, I argue that differential treatment must always be proportional to the quantum of social justice that is to be achieved. For example, giving reservations without any historical basis, such as the EWS reservations for the general category (who are not historically disadvantaged), raises constitutional concerns.

Additionally, there should be a sunset clause for affirmative action policies. The sunset clause is an invention of the US Supreme Court in the case of Students for Fair Admissions v. Harvard (2023). The apex court stated that affirmative action policies should have a 'sunset clause'. This concept suggests that all affirmative action should be implemented with the understanding that there should be an eventual end to preferential treatment. In the Indian context, reservation schemes should be designed in such a way that they recognise that these schemes are meant to defeat historical injustices and not to propagate them further.

To address the Second criticism of ‘whether social justice initiatives prioritise collective rights over individual rights’, I would like to stress the nuanced nature of part three of the Constitution. The Indian constitution explicitly recognises collective rights through minority rights under Article 30 or protection of cultural, linguistic, and religious communities (Articles 29 and 26).  However, prioritisation of collective rights is not absolute. Collective rights should be asserted with caution so that they do not impede the personal liberty of the people. Collective rights cannot supersede individual liberty.

Thirdly, regarding the question of whether social justice poses a threat to the constitutional principles of limited government, I believe that policies that demand excessive control of private entities to achieve social justice initiatives should be opposed. The author opposes schemes of wealth redistribution through heavy taxation or the prevention of free speech to achieve any form of social justice. Article 19 of the Indian Constitution guarantees freedom of speech and expression, but it is, however, subject to eight different exceptions. This is the highest number of restrictions placed on any fundamental right. Such extensive limits run counter to the spirit of liberal democracy. While at the same time, excessive focus on social justice can compromise fundamental liberties. To put this into perspective, in a recent nine-judge bench landmark decision, the Supreme Court of India, led by Chief Justice D.Y. Chandrachud, ruled that not all privately owned property can be considered "material resources of the community" under Article 39(b) of the Constitution. Chandrachud criticised Justice Krishna Iyer’s earlier stance in the 1978 Ranganatha Reddy case as a “doctrinal error”. Justice Chandrachud made such an observation by opining that Justice Iyer's theory promoted a rigid economic theory that prioritised state control over private property for redistribution. He argued that such an approach undermines constitutionalism by ignoring the framers’ intent for flexibility and liberty.

Fourthly, on the question of judicial activism undermining the legislative process, I opine that if properly constrained, judicial activism does not violate constitutional principles.  From a plain reading of Article 141 of the Constitution, we can decipher that the Supreme Court of India is empowered to interpret and declare laws, not to make them. Law-making requires following democratic procedures, which are distinct from judicial interpretation, for instance, in the N.M. Thomas case, the Court reinterpreted constitutional provisions to achieve substantive equality without overstepping its constitutional bounds.

Fifthly, on the question of populism, the author opines that social justice initiatives can indeed lead to populism and majoritarianism. Political parties may implement welfare schemes or preferential laws for electoral gains. For example, in Maharashtra, there has been a demand for Maratha reservation. The Maratha’s despite being a dominant community comprising 33% of Maharashtra’s population, have sought their inclusion in the OBC category. This perfectly demonstrates how populism, fueled by the need of politicians to stay in power, can lead to the inclusion of communities that may not have suffered the same historical injustices. This dilutes resources meant for genuinely disadvantaged groups.

In conclusion, the persistence of caste discrimination demonstrates the continued need for social justice measures. To illustrate this point, I would like to draw the example of the widely reported news of upper caste Hindus in Kolambeshwar village, Malegaon taluka, denying a Dalit woman access to a well, forcing her husband, Bapurao Tajne, to dig his own well during a severe drought.

Even more recently, in May 2024, Nilesh Rathod, a Dalit man from Gujarat's Amreli district, was beaten to death for calling a shopkeeper's son 'beta'. These incidents justify the need for continuing affirmative action policies.

That said, we cannot implement policies that compromise individual liberty in the pursuit of social justice. Liberty and human rights are the grundnorm upon which social justice initiatives must be built.  Constitutionalism is a virtue and not a vice. The purpose of social justice is to strive to reach the full potential of the citizenry by providing opportunities and equitable distribution of the nation's resources. Thus and so, social justice primarily forms part and parcel of the notion and principle of constitutionalism.