An Analysis of Article 38 – The RMLNLU Law Review Blog

By: Tarun Ashok


INTRODUCTION

The ethos of Indian democracy has been perennially centered around ideas of justice- political, economic, and social, as enshrined in the Constitution. Article 38 of the Directive Principles of State Policy outlines these values ​​as aspirational ideals for the diverse institutions of national life. It encapsulates and promotes aspects such as social justice, distributive justice, and the strengthening of the welfare state. However, in recent times, the state and its myriad institutions have failed to be sufficiently informed by these ideals.

I. A BACKGROUND TO THE ARTICLE 38

A cursory understanding of the meaning and import of Article 38 conveys the creation, establishment and preservation of a social order that upholds and empowers people’s social, political and economic rights. This is manifested by ensuring this social order percolates deep into the national institutions and informs their work. Article 38 was founded and contemplated to advance the aforementioned rights by emphasizing the vital nature of the infusion of values ​​such as justice, political and socio-economic welfare of the people into the representative-led institutions. [1] The creation of a social order replete with economic, social, and political rights necessitates that the national institutions are infused with these rights. These institutions can be characterized as not only the Parliament, judiciary, and executive but also people-facing national institutions such as the Railways, Ministries of Parliament, and the like.

II. JUDICIAL APPLICATION OF ARTICLE 38

A Textual Reading of Article 28

Karl Klare has expounded the meaning of transformative constitutionalism to connote ‘large-scale social change through the political processes that are founded in the law’. Article 38 (1) and (2) were effectively used as interpretive guides to read the Right to health and medical care into Article 21 in Consumer Education & Research Center v Union of India. The court proceeded to highlight the importance of providing facilities and opportunities to ensure the health of workers. It enjoined the state to guarantee facilities for healthcare and social protection of workers using Article 38. The all-encompassing nature of the right to life was held to include quality of life in various judgments of the Supreme Court. Article 38 facilitated this expansionary constitutionalism in State of HP v Umed Sharma, in which the court held that the state has a constitutional obligation under Article 38 (2) to facilitate the realization of Article 19 (1) (d) and Article 21 by facilitating transportation through access to roads in hilly areas. It was believed that judicial direction in cases of administrative inaction is permissible within limits.

To Spur Welfare Measures

Justice S Mohan, in Delhi Domestic Working Women’s Forum v Union of Indiapropounded the application of Article 38 to direct the establishment of a Criminal Injuries Compensation Board by the Government of India. He opined that such a scheme would need to be evolved to “wipe out the tears of unfortunate victims”, to guarantee the genuine realization of the values ​​enshrined in Article 38 for victims of sexual assault. The court also recognized the disadvantaged position of women in Indian society and their vulnerability at the hands of men. This was one of the few instances where the court utilized this broad-ranging provision to initiate measures by the Government to secure a social order that would promote the welfare of the people.

To Minimize Inequalities And Promote An Egalitarian Society

The court in Video Electronics v State of Punjab succinctly portrayed the concept of living and transformative constitutionalism. It articulated the necessity to harmonize the economic development of backward areas along with economic unity as well as rational reasons for the differential treatment. It concluded that incentives for the development of backward regions to promote welfare are permissible subject to the existence of reasons for differentiation. The courts have also opined that tax laws may be used to minimize inequalities.

The promotion of the interests of jute producers by recognizing their fundamental right to cultivation was propounded in Dalmia Cements (Bharat) Ltd v Union of India. Various cases including Valsamma Paul v Cochin University were relied on to highlight the duty of the state to eliminate equality. This was to be realized by introducing appropriate legislation and orders to further social justice by ushering in an egalitarian social order. The court in Dalmia Cements upheld the legislation framed to safeguard and further the socio-economic interests of agricultural producers, namely jute by applying the Directive in Article 38 against competing interests such as the right of individuals to carry on trade in Article 19 (1) (g).

Furthering the Public Interest

Deepak Theater v State of Punjab seemed to suggest that private contractual matters or business decisions veiled with the public interest could be regulated by the government in the furtherance of that public interest. It has been held that since mass media is a tool for disseminating information for the welfare of the people, it is covered under Article 38 of the Constitution of India. The state is therefore enjoined to ensure that this dissemination is regulated and such regulation includes fixation of rates of admission.

This transformative approach could be extended to cover various other activities that are infused with the significant public interest. For example, practices such as the bursting of firecrackers can be characterized as private activities that are vested with the environmental public interest. The state could therefore step in and strictly regulate the sale of the same and impose stringent standards.

III. A NORMATIVE APPROACH- TRANSFORMING INSTITUTIONS OF NATIONAL LIFE

Social Welfare Policies of The State-New Labor Laws

The New Indian Labor Codes such as The Code on Wages, 2019, The Code on Social Security, 2020, and the like introduced major changes to labor law in India. However, the Ministry of Labor and Unemployment has not been informed sufficiently by the values ​​in Article 38.

Firstthere have been major modifications to strikes and lockouts to the detriment of workers, which now require prior notice of 14 and 60 days respectively. Secondit excludes a significant portion of workers from social security benefits such as pensions by introducing minimum workforce requirements. Thirdthe new Code on Wages empowers the Central Government to set a floor wage below which State Governments are disallowed from breaching while setting the minimum wage.

Article 38, as the court has interpreted it, is geared towards social welfare and people’s betterment. Social justice coupled with the creation of an egalitarian society must be used to mitigate the suffering of the most vulnerable. The stakeholders of the new labor laws primarily consist of the numerous workers who are significantly worse off by the new codes.

An application of social justice principles would ensure workers have greater liberties to oppose factory owners, allow states to set minimum wages above the floor limit, and expand welfare and social security benefits to enterprises of all sizes. Legislators must be mindful of the principles outlined in Article 38 while drafting bills, especially those that are beneficial in nature and oriented toward social welfare.

Political Justice-Oriented Policies of The State-Sedition and Dissent

Section 124-A of the Indian Penal Code, 1860 is a colonial and regressive criminal provision that punishes disffection against the Government. The court in Kedar Nath Singh v State of Bihar regrettably upheld the validity of this provision. Furthermore, the governmental misuse of acts such as the UAPA, in conjunction with curbs on the freedom of speech through various penal provisions including sections 153A, 295A, and 298 of the Indian Penal Code, 1860 is opposed to political justice envisioned by Article 38.

There is a pressing need for the executive to take cognizance of the principles evinced by Article 38. Dissent becomes incredibly crucial for political justice to prevail in a democracy such as ours, especially considering the rampant socio-economic inequalities and the marginalization of minorities. The application of Article 38 to dissent would ensure firstfacilitating the creation of spaces for the expression of a diverse range of opinions and processes for the unfettered claiming of rights, especially by minorities. Secondit would also ensure the flourishing of avenues for social transformation, through which opposition and criticism would ensure accountability and transparency.

CONCLUSION

This piece has outlined the numerous avenues through which the ideals envisioned in Article 38 must be infused into our national institutions to promote socio-economic and political equality. In pursuance of the same, a critique of the unjust policies of the state that are antithetical to the idea of ​​our welfare-oriented state has been provided. Furthermore, a normative analysis, consisting of a directive principle-led approach has been propounded to transform the institutions of our national life.

It is crucial that the values ​​enshrined in Article 38 are taken seriously, and realized, to do justice to both our framer’s intent as well as the rights of the Indian people. The social order emphasized by our Constitution has continuously been under threat, and Article 38 serves as a foundation for the implementation of reform measures. The judiciary, the legislature as well as the executive must take cognizance of and give effect to its aspirational ideals.

[1] DD Basu, Commentary on the Constitution of India (9th ed, Vol 7 Lexis Nexis 2018) Articles 36 – 79.


(Tarun is a law undergraduate at the National Law School of India University, Bengaluru. The author may be contacted via email at [email protected]).

Cite as: Tarun Ashok, ‘Infusing Social Justice Into our National Institutions: An Analysis of Article 38’ (The RMLNLU Law Review Blog19 January 2023) date of access.

Post Comment