In 1873, the English Supreme Court of Judicature was subdivided into the High Court of Justice (with a separate Chancery (equity) Division and Queen's Bench (common law) division), and the Court of Appeal, administering both Common Law and Equity. (1) While the practical distinction between Equity and Common Law vanished with the fusion of Courts of Equity and of Law; intellectual distinction still remained between these two systems in the nature of claims and remedies available therein (Hudson 2015, p.17-19). (2) Equity generally followed the Common Law or statutes, unless it was unconscionable to do so (ibid, p.27). However, in case of conflict or variance, principles of Equity prevailed over uncodified rules of Common Law. (3)
On the contrary, Equity was always administered 'through and not in opposition to' the law in India by the same courts (Gandhi 2010, p.27; Jois 1990, p.39, 41, 46). Prior to the advent of the British rule, equitable principles were a source of law in both Hindu Law (Dharma) and Islamic Law (particularly, Hanafi and Hanbali schools of Sunni jurisprudence), recognized through popular usages (vyavahara, meaning, 'removal of various doubts') and juristic preference (istihsan, meaning 'to approve') respectively (Gandhi 2010, p.27; Jois 2001, p.66-67). (4) When the British codified the law in India simultaneously recognizing the principles of Equity therein (Gandhi 2010, p.28), (5) an epoch began wherein Equity was imbibed in the juridical framework in India and this fusion was recognized statutorily.
Courts in British India implemented the principles of Equity (with required modifications) where specific rules of law were inapplicable. Therefore, Adalats, which were exceedingly elementary judicial bodies established by Warren Hastings through the Judicial Plan of 1772, adjudged disputes, not involving Hindu or Mohammadan Law, according to principles of justice, equity and good conscience (Jain, 2006). Parallel to Adalats were Supreme Courts, established in the Presidency Towns with The Regulating Act of 1773, which were headed by English judges who also administered English Common Law as liberalized by Equity (ibid). After the merger of the erstwhile Presidency Supreme Courts and Adalats into High Courts through the Indian High Court Act, 1861, the High Courts retained the inherent power to secure the ends of justice through liberal interpretation of statutes in consonance with principles of equity, justice and good conscience. (6) However, the Supreme Court of India ('SCI') possesses the overarching power to do complete justice between the parties through Article 142(1) of the Constitution of India ('Constitution'). (7)
Article 142(1) of the Constitution empowers the SCI to administer complete justice in any matter pending before it. (8) As Preamble to the Constitution states, justice is a coalescence of social, economic and political justice. Heretofore, all the benches of the SCI were equally equipped to uphold this three-dimensional concept of justice taken as a whole, such that the expediency of supreme judiciary was unaffected by the hazy semantics of social, economic or political justice. Recently, however, the Chief Justice of India, H.L. Dattu, ordered the establishment of a two-judge bench titled the Social Justice Bench ('SJB'), in the SCI, to 'deal specially with the matters relating to society and its members, to secure social justice, one of the ideals of the Indian Constitution'. (9) While setting up dedicated benches in the Supreme Court is not itself unheard of, but these have been primarily to address economic or technical issues of law (Monalisa and Masoodi, 2015). Such benches have always been 'technical' or 'expert' benches dealing with specialist areas of law. For instance, the Forest Bench, later renamed as the Green Bench, has been dealing with environmental cases for nearly two decades. On the contrary, SJB is not a 'technical' or 'expert' bench in that it does not require specialized knowledge of a complex or technical specie of law. Rather, SJB is constituted solely to administer social justice. SCI's Notification (10'Notification') declaring constitution of SJB does not define the term 'Social Justice' but, illustratively includes therein 'several cases highlighting social issues...where the constitutional mechanism has to play a proactive role in order to meet the goals of the Constitution'. (11) Such cases include, inter alia, provision of public distribution of food grains, night shelters, medical facilities, hygienic drinking water, and safety and secured living conditions for children, women, and the destitute. (12) Releasing surplus food stocks among people in drought affected areas, providing hygienic mid-day meals to children, and ensuring secured living conditions to women who are otherwise forced into prostitution are other illustrations of issues concerning social justice. (13)
While the constitution of a dedicated SJB to deliver social justice is riddled with fallacies of its own, (14) it has also raised jurisprudential questions relatively alien to Indian juridical framework. Constitution of a separate SJB has arguably estranged Social Justice from the concept of justice, which erstwhile taken as a whole formed the bedrock of Indian judicial, legal and constitutional framework. Currently, SJB is expected to administer Social Justice, which is entirely a naturalist concept. Contrarily, other benches of SCI are expected to primarily administer positive law with obscured yet (probably) subsisting modicum of economic and political justice. However, this dichotomy between administration of Social Justice and positive law is not the only possible outcome of conceptualization of SJB. If an integral nexus between Social Justice and Equity can be plausibly established in the Indian context, SJB could also be macrocosmically seen as dichotomizing judicial administration of Equity and Law. Rationalizing such a claim would signify both a practical and an intellectual distinction being created between systems of Law and Equity, and correspondingly their judicial administration, for the first time in Indian legal history. This paper, therefore, attempts to determine the nature of relationship, if it exists, between concepts of Equity and Social Justice and, accordingly, to examine the veracity of the claim that the SJB has dichotomized Equity and Law in India.
Social Justice in the Indian Context
As stated before, SCI's notification does not define the term 'social justice' but contextualizes it apropos the Indian Constitution. Accordingly, we must restrictively conceptualize and construe it.
Primarily, the Preamble to the Constitution secures social justice for all citizens. It is a settled law that the Preamble is an integral part of the Constitution, (15) and invaluably aids in its interpretation by highlighting its underlying purpose. (16) Accordingly, provisions contained in Part III (Fundamental Rights), IV (Directive Principles of State Policy or 'DPSP'), XVI (Special Provisions Relating to Certain Classes), and like, are interpreted as furthering the objective of social justice enshrined in the Preamble (Basu 2011, p.418; Singh 2012, p.4). Therefore, as established by the constitutional jurisprudence, Social Justice inter alia includes elimination of inequalities (of status and opportunities, caste, religion, gender etc.,17) ensuring equal access to justice (including free legal aid to the economically or socially backward,18) just and humane conditions of work including maternity relief, (19) affirmative action through special provisions for women, children, the socially and educationally backward, etc., (20) and reservation of seats for Scheduled Castes and Scheduled Tribes in the House of People in the Parliament and the Legislative Assemblies of the States, etc. Insofar as the aforementioned Constitutional provisions can be implemented only through State action, the onus of securing social justice lies fundamentally with the State. (21) Understood thus; Article 37 of the Constitution obliges the State (as defined in Article 12) to enforce DPSP through Rule of Law. Article 38(1), additionally, obliges the State to promote welfare by ensuring social justice to everyone. Adoption of such a model of 'social welfare state' also conforms to the philosophy of socialism imbibed in the Preamble. (22)
Beside the State, the Judiciary also plays a significant role in dispensing social justice while interpreting relevant statutory and Constitutional provisions...
Supreme Court of India Social Justice Bench: maiden dichotomy between equity and law in Indian jurisprudential history.
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