Social justice means a way of life with liberty, equality and fraternity as the principles of life. A true essence of social justice can not be established without removing the inequalities in income and making endeavour to eliminate inequalities in status though the rule of law. Social justice or rule of law is a core constitutional objective. Without Social justice the constitution would not able to secure economic and other justice to the people. Justice, Social, Economic and political is the spirit and vision of our constitution.

Much of the focus of the study is on the impact of the philanthropy organizations on social exclusion associated with caste, untouchability, ethnicity, and gender. The constituent assembly completed its work under Dr. B.R.Ambedkar as chairperson of the Drafting Committee of the constitution. The new constitution was adopted on 26 January 1950 and the Indian Republic was born. Indian become and independent Sovereign, Democratic, Republic – a nation that would strive for equality for all; liberty of though, expression, belief, faith and worship. We now had a government for the people, by the people and of the people.

In the last Sixty Four Years after Independence the road has been long, bumpy and at times it has seemed as if we have lost our way. There has been economic progress but a large part of population is still not out of the circle of poverty. Caste still plays an unfortunate role in a complex society but Dalits are no longer a downtrodden people without hope. They have raised their heads and through the power of the ballot box asserted their rights. Our constitution made us all equal and we have learnt to value that right.

The well known concept of equality of opportunity received a wider meaning viewed in the background of social justice thus implying equal opportunities for all without discrimination, obstacles or disabilities of any kind. Unequal capacities which are the consequences of social and economic inequalities should not impede or prevent people from availing of opportunities for their well being.1

Abolition of Untouchability: It was necessary for social justice or rule of law means equality before law and equal protection of law. Article 17 “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchability” shall be offence punishable in accordance with law. Parliament has passed the Untouchability (offences) Act, 1955. It prescribes punishments for practising untouchability. This Act has been amended in 1976 by the Untouchability (offences) 1976 and at present it is known as the protection of Civil Rights Act, 1955.

In 1989 an Act called the Scheduled Caste and Scheduled Tribes (Prevention Atrocities) Act has been enacted. Its object is to prevent the commission of the Atrocities against the members of Scheduled Cast and Scheduled Tribes. It makes provision for the Special Courts for the trial thereof and also for rehabilitation of victims of such offence. Section 18 the Act exclude the application of Section 438 of the Cr.P.C.1973 to cases arising under this Act.2
Article 15 (2) is also relevant for the purposes of abolition of untouchability. It provides that no citizen shall on ground only of Religion, Race, Caste, Sex, Place of birth or any of the, be subject to any disability, restriction or condition with regard to: (a) Access to shops, public restaurants, hotels and places of public entertainment, (b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly of state fund or dedicated to the use of general public. On the ground of untouchability no person be denied:-

Article 15(2) and Article 17 of the Indian Constitution available not only against the state but also against the private individuals. These Articles, thus protect an individual from discrimination not only by the state but also the private individuals.3

Untouchability is a peculiar phenomenon manufactured by Indian society. It is a social regulation and a custom that have been sustaining for many centuries. It is a collective cultural practice with many connotations. It has carried through caste system and immensely maintained through hindu religion. It has multidimensional features that have convergence of religious, social, economical, cultural and political systems. Untouchability has multiple functions and has a multilayered social principle that has manifesting in different forms. Untouchability is a peculiar phenomenon manufactured by Indian society. It is a social regulation and a custom that have been sustaining for many centuries. It is a collective cultural practice with many connotations. It has carried through caste system and immensely maintained through hindu religion. It has multidimensional features that have convergence of religious, social, economical, cultural and political systems. Untouchability has multiple functions and has a multilayered social principle that has manifesting in different forms.

There is no racial difference between the hindus and untouchables. The distinction between the hindus and untouchables in its original form, before the advent of untouchability, was the distinction between tribes man and broken men from alien tribes. It is the broken men who subsequently came to be treated as untouchables. Just as untouchability has no racial basis so also has no occupational basis. There are roots from which untouchability has sprung: a. contempt and hatred of the broken men as of Budhists by the Brahmins, b. continuation of beef eating by the broken men after it had been given up by others. in searching for the origin of the untouchability care must be taken to distinguish the untouchables from the impure. All orthodox hindu writers have identified the impure with untouchables. This is an error. Untouchables are distinct from the impure. While the impure as a class came into existence at the time of the dharma sutras the untouchables came into being much later than 400 A.D.

“ A civil society for its existence, survival and governance, depends to a large extent on the principle of rule of law, as against rule of men. We chose to govern ourselves by the concept of a Welfare State with a view to ensure to each citizen not mere basic human rights but also Justice in all its hues. Therefore, the ideals of justice, equality and liberty together form the spirit of our Constitution.”6
In Oriental Insurance Co. Ltd. v/s Hansrajbai V. Kodala (2001) the Apex Court held that "The object is to expeditiously extend social justice to the needy victims of accidents curtailing delay - If still the question of determining compensation of fault liability is kept alive, it would result in additional litigation and complications in case claimants fail to establish liability of defendants - Wherever the Legislature wanted to provide additional compensation, it has done so specifically."

The Supreme Court has firmly ruled in Balbir Kaur v/s Steel Authority of India (2000) that "the concept of social justice is the yardstick to the justice administration system or the legal justice and it would be an obligation for the law Courts to apply the law depending upon the situation in a manner whichever is beneficial for the society" as the respondent Steel Authority of India was directed to provide compassionate employment to the appellant. In Superintending Engineer, Public Health, U.T. Chandigarh v/s Kuldeep Singh (1997) the Supreme Court held that "It is the duty of the authorities to take special care of reservations in appointments as a part of their constitutional duties to accord economic and social justice to the reserved categories of communities. If ST candidate is not available, the vacancy has to be given to SC candidate and the reserved roster point has to be filled in accordingly". In Ashok Kumar Gupta v/s State of U.P. (1997) it was held by the Apex court that "To give proper representation to SC/ST Dalits in services is a social justice which is a fundamental right to the disadvantaged. It cannot be said that reservation in promotions is bad in law or unconstitutional." In Consumer Education & Research Centre v/s Union of India (1995) it was held that "Social justice is a device to ensure life to be meaningful and livable with human dignity. State has to provide facilities to reach minimum standard of health, economic security and civilized living to the workmen. Social justice is a means to ensure life to be meaningful and livable."

At the centre of the current controversy is a judgment delivered by a two-judge bench of the Supreme Court in U.P Power Corporation Ltd. v. Rajesh Kumar in April 2012. It had already been held in M. Nagaraj v. Union of India (October 2006) that the state must demonstrate backwardness, inadequacy of representation and maintenance of efficiency before providing reservation in promotions. However, what the U.P Power Corporation did for the first time was to strike down reservation in promotions for not meeting these criteria.

Reservation in promotions has been a sphere of intense disagreement between Parliament and the Supreme Court. To overcome the decision of a nine-judge bench in Indra Sawhney and other judgments that disallowed reservation in promotions and consequential seniority, Parliament enacted three constitutional amendments in 1995, 2000 and 2002. While upholding the constitutional validity of the amendments, the Supreme Court in Nagaraj made it very clear that Article 16 (4A), which was inserted through these amendments, was only an enabling provision. In essence, every time a government or the legislature sought to provide reservation in promotions under Article 16 (4A), it would have to pass constitutional muster. While justifying each attempt to provide reservation in promotions, the state would have to demonstrate backwardness, inadequacy of representation and maintenance of efficiency. The U.P. Government Servants Seniority Rules challenged in the U.P Power Corporation case was one such attempt.

The three conditions laid down in Nagaraj raise a number of concerns. It must be remembered that Article 16 (4A) permits reservation in promotions only for the SCs/STs and not for the OBCs. In this context, the first condition in Nagaraj requiring the state to demonstrate backwardness of the beneficiaries is problematic. It is problematic because it amounts to bringing in the ‘creamy layer’ test for SCs/STs through the backdoor. It has been held numerous times by the Supreme Court, including in the judgment in Indra Sawhney, that the test of ‘creamy layer’ is not applicable to SCs/STs. The settled position of law is that all members of recognised SC/ST groups automatically satisfy the condition of backwardness and there is no burden on the state to further establish the backwardness of those individuals benefiting from reservation. While this requirement exists for the OBCs in terms of the ‘creamy layer’ test, Justice (as he then was) Kapadia’s opinion in Nagaraj does not provide any justification for not following the position endorsed by a larger bench in the context of the SCs/STs.

On the question of inadequacy of representation, the text of Article 16 is clear that it is a matter for the state to determine. While it must base its determination on some material, the question as demonstrated in the U.P Power Corporation case is about the nature of the empirical evidence that is required. The Supreme Court provides no justification for using the cadre as a unit for determining inadequacy of representation and the method could well distort the picture on adequacy of representation. There is no reason why the state cannot make its determination on the basis of a particular group of services or certain ranks across services or even public employment as a whole. The Supreme Court has also failed to address certain other aspects of adequacy of representation. It has not discussed whether achieving proportional representation would be the standard to determine adequacy or whether it considers proportional representation irrelevant in this context. It has also not clarified the period over which adequacy must be determined.

Dr. Ambedkar demonstrated tremendous foresight in the Constituent Assembly when he called for deleting the phrase — “is in the opinion of the state, not adequately represented” — from Article 16(4). He believed that it would become a matter of litigation and the courts could substitute their judgment on adequacy of representation by holding that a reservation was being made despite being adequately represented.

In many ways it is the efficiency question that has always been at the heart of the debate concerning reservation in promotions. Prabhat Patnaik, while making a strong argument for viewing reservation in employment as promoting efficiency, has accurately observed that the supporters of reservation in public employment rarely rebut the ‘loss in efficiency’ argument and appear to counter it only by resorting to arguments about social justice and inclusion. Ever since the early days of the Supreme Court, it has been a constant refrain that reservation in employment leads to a loss in efficiency. The basis for that argument has never been articulated in any of the Supreme Court’s judgments and has always been stated as a self-evident truth.

The Supreme Court must give the state room for manoeuvre on what is acceptable empirical data. It also cannot remain silent on some critical normative questions and keep the government guessing about the terms on which it will permit the exercise of power under Article 16 (4A). Reservation in promotions at the entry level does not ensure that the project of equality of opportunity is complete. We could argue endlessly whether reservation in promotions would take that project further but, in terms of governance, we have already made a political and constitutional choice. It cannot be the judiciary’s task to indirectly undo that choice having already upheld it and it must be the government’s task to make legitimate use of it. The envisaged constitutional amendment is the least legitimate option because any political consensus will be based on electoral compulsions. Governments, State and Central, must present the country with hard facts to derive legitimacy — hard facts confirming the lack of presence of India’s most marginalised sections in the upper echelons of bureaucratic power. It is this evidence of the lack of presence that will expose the hollowness of the claims concerning equality of opportunity in public employment.7

Conclusion:-
Caste-based discrimination is the most complex human rights issue facing India today. To date, the tools used to assess its status have been divided by discipline—human rights, legal and social science. Although significant contributions toward understanding untouchability have been made in each of these areas, it is difficult to comprehend the scope and pervasiveness of the problem without combining the tools of all three. Despite the well intentioned commitment of ensuring to Social Justice through equalization or protective discrimination policy, the governmental efforts have justice even such activities are performed which have nothing to do with Social Justice. The need hour is to ensure the proper and balanced implementation of policies so as to make Social Justice and effective vehicle of Social Change. In our democratic setup, the law are made for all. Since no society is static, and social processes are constantly changing, a good legal system is one which ensures that laws adapt to the changing situation and ensure social good. Any legal system aiming to ensure good should ensure the basic dignity of the human being and the inherent need of every individual to grow into the fullness of life. The hope of the Indian mass dose not lie in the legal system alone, but in their conscious awakening and fight for social and economic justice.

Reference:-.
# www.law.gsu.edu/ccunningham/.../India - Constitution-Part3.htm
4. Dr. P. Kesava Kumar “Interrogating Untouchability: A Cultural Discourse” 12 November 2011
5. Ambedkar, The Untouchables (vol.7).Who were they and Why they became untouchables?
# 2006.
# Winning the case for promotion quotas” 6 Sept. 2012

Written by: Vivek
Assistant Professor in Law
N.N. P.G. College Nawabganj, Gonda.
vivek_llm@rediffmail.com
vivek_vivek215@yahoo.com
Mo. No. 9415718416