By Kamaluddin Khan,
The India polity more or less has a always tried to cope with the contemporary need – based development of laws for the specified purposes. It may be in the field of Human Rights, Politics, Civil Rights, Constitutional Rights or Social Transfer. Still the judicially always inspires directly or indirectly to meet the challenges as per need, either by precedents, directions or suggestions etc. The Supreme Court in a case1 observed that “it is well accepted by thinkers, philosophers and academicians that if JUSTICS, LIBERTY, EQUALITY and FRATERNITY, including social, economic and political justice, the golden goals set out by the Preamble of the Constitution, are to be achieved, the Indian polity has to be educated and educated with excellence.
This is because the Constitution is not to be construed as a mere law, but as the machinery by which laws are made. The Constitution is a living and organic thing which, of all instruments has the greatest claim to be constructed broadly and liberally.
Article 14 and 16 (A) of the Constitution intend to remove social and economic inequality to make equal opportunities available. In reality the right to social and economic justice envisaged in the Preamble and elongated in the Fundamental Rights and Directive Principles of the Constitution, in particular Articles 14, 15, 16, 21, 38, 39 and 46 are envisaged to make the equality of the life of the poor, disadvantaged and disabled citizens of the society, meaningful.
Further the Preamble which is invoked to determine the abmit of both fundamental rights and Directive Principles as observed by the Supreme Court in Various cases embraces all the new laws after make Constitution.
This reasons, why the Government organs owe origin to the Constitution and derive their authority from and discharge their responsibilities within the framework of the Constitution.
The Supreme Court in some cases held that the social justice enables the courts to uphold legislations to remove economic inequalities, to remove economic inequalities, to provide a decent standard of living to the working people and to protect the interests of the weaker sections of the society.
The democratic socialism aims to end poverty, ignorance, disease, and inequality of opportunity. This socialistic concept ought to be implemented in the true spirit of the Constitution. Article 14 is to be understood in the light of directive principles. Articles 14 guarantees equal treatment to persons who are equally situated.
Besides clause (3) of Articles 15, which permits special provision for women and children, has been widely resorted to and the courts have upheld the validity of special measures in legislation or executive orders favouring women. In particular, provisions in the criminal law, in favour of women, or in the procedural law discriminating in favour of women have been upheld.
Article 21 spells that no person shall be deprived of his life or personal liberty except according to procedure established by law. This Article if read literally is a colorless Article and would be satisfie, at the moment, it is established by the State that there is a law which provides a procedure which has been followed by the impugned action. But the expression “procedure established by law” in Article has been judicially constructed as meaning a procedure which is reasonable, fair and just.
The right to life and the right to personal liberty in India have been guaranteed by a constitutional provision, which has received the widest possible interpretation. Under the canopy of Article 21 of the Constitution, so many rights have found shelter, growth and nourishment. An intelligent citizen would like to be aware of the development in this regard as they have evolved from precedents of courts.
This Article lays down that no person shall be deprived of life or personal liberty, except according to procedure established by law. This
Ariticle, hence gives a positive effect by judicial interpretation. This right is a fundamental right, enforceable against the State, and Judicial decisions have imposed, on the State, several positive obligation.
A question arises while going through the constitutional provisions that why a constitutional provision arises on various subjects. Is the ordinary law not enough? To the answer it is true that Indian Penal Code contains adequate provision to punish a person who takes away or attempts to take away the life of another. But the impact of constitutional provision to take away the life of another. But the impact of constitutional provision lies in this respect, that by being elevated to the pedestal of a fundamental right, the right is placed beyond the reach of ordinary legislation inspired by political motives. Hence it can be said that the enumerative rights can derive from Article 21.
Article 39 (a) among other things provides that the State shall in particular, direct its policy towards securing that al citizens, men and women equally have the right to an adequate means of livelihood. This Article has been described as having the object of securing a welfare state may be utilized for construing provisions as to fundamental rights.
Further Article 51 A (e) imposes that duty of every citizen in India to renounce practices derogatory to the dignity of women.
Section 14 of the Hindu Succession Act, 1956 should be construed harmoniously with the constitutional goals of removing gender based discrimination and effectuating economic empowerment of Hindu women.
The right to elimination of gender based discrimination so as to attain economic empowerment, forms pat of Universal Human Rights. Article 2 (f) of CEDAW States are obliged to take all appropriate measures; including legislation, to abolish or modify gender based discrimination in the existing laws, regulation, customs and practices that constitute discrimination against women. Article 15(3) of the Constitution of India positively protects such acts or actions.
Moreover the Constitution of India is a basic document which provides for women empowerment within the framework of the plenary provision of Articles 14, 15 (3), 21, 39 (a), 51A (e) and Preamble. The courts always try to interpret the cases which are detriment to women within the area of social justice with these Articles.
—
Kamaluddin Khan is a Lecturer at Patna Law College.