Weaker Section and Minorities
- Social Justice
- Equal Opportunity and special opportunity
- Protective Discrimination
- Constitutional Safeguards
- Types of Justice
The next major impetus for the development of the concept came from Christianity.Thomas Aquinas (1225-1274) says, "Justice is a certain rectitude of mind whereby a man does what he ought to do in the circumstances confronting him." As a theologian, Aquinas believed that justice is a form of natural duty owed by one person to another and not enforced by any human-made law. This reflects the Christian view that, before God, all people are equal and must treat each other with respect. Hence, the framework of the argument shifts to require obedience to natural principles of morality to satisfy a duty owed to God, and the outcome of social justice is driven by the tenets of morality embedded in the religion.
John Locke (1632-1704), an early theologist Utilitarain argued that people have innate natural goodness and beauty, and so, in the long run, if individuals rationally pursue their private happiness and pleasure, the interests of the society or the general welfare will be looked after fairly. Locke characterised most of Christianity as utilitarian since believers see utility in rewards in the afterlife for their actions on Earth.
Immanuel Kant (1724-1804) believed that actions are morally right if they are motivated by duty without regard to any personal goal, desire, motive, or self-interest. Kant's moral theory is, therefore, deontological and based on the concept of abject selflessness. In his view, the only relevant feature of moral law is its universalisability.
In the latter part of the twentieth century, the concept of Social Justice has largely been associated with the political philosopher John Rawls (1921-2002) who draws on the utilitarian insights of Bentham and Mill, the social contract ideas of Locke, and the categorical imperative ideas of Kant. His first statement of principle was made in A Theory of Justice (1971) where he proposed that, "Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others." His views are definitively restated in Political Liberalism (1993), where society is seen, "as a fair system of co-operation over time, from one generation to the next." All societies have a basic structure of social, economic, and political institutions, both formal and informal. In testing how well these elements fit and work together, Rawls based a key test of legitimacy on the theories of social contract. To determine whether any particular system of collectively enforced social arrangements is legitimate he argued that one must look for agreement by the people who are subject to it. Obviously, not every citizen can be asked to participate in a poll to determine his or her consent to every proposal in which some degree of coercion is involved, so we have to assume that all citizens are reasonable . Rawls constructed an argument for a two-stage process to determine a citizen's hypothetical agreement:
- the citizen agrees to be represented by X for certain purposes; to that extent, X holds these powers as a trustee for the citizen;
- X agrees that a use of enforcement in a particular social context is legitimate; the citizen, therefore, is bound by this decision because it is the function of the trustee to represent the citizen in this way.
The concept of social justice may hold some or all of the following beliefs:
- Historical inequities insofar as they affect current injustices should be corrected until the actual inequities no longer exist or have been perceptively "negated".
- The redistribution of wealth, power and status for the individual, community and societal good.
- It is government's (or those who hold significant power) responsibility to ensure a basic quality of life for all its citizens.
Equal Opportunity and special opportunity
Art 15 (clause 3) which empowers the state to make any special provision for women and children.
Art 16 (clause 4) serves the same purpose for backward class citizens. There are several other articles which aim to remove disparity between different sections of the society. The constitution attempts to create balance between right to equality and protective discrimination.
- people's right to "equality before the law" and "equal protection of the laws";
- prohibition of discrimination against citizens on grounds of religion, race, caste, sex or place of birth;
- authority of State to make "any special provision for the advancement of any socially and educationally backward classes of citizens" (besides the Scheduled Castes and Scheduled Tribes);
- citizens' right to "equality of opportunity" in matters relating to employment or appointment to any office under the State - and prohibition in this regard of discrimination on grounds of religion, race, caste, sex or place of birth.
- Authority of State to make "any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State;
- People's freedom of conscience and right to freely profess, practice and propagate religion - subject to public order, morality and other Fundamental Rights;
- Authority of State to make law for "regulating or restricting any economic financial, political or other secular activity which may be associated with religious practice", and for "providing for social welfare and reform";
- Authority of State to make laws for "throwing open" of Hindu, Sikh, Jain or Buddhist "religious institutions of a public character to "all classes and sections of the respective communities;
- Sikh community's right of "wearing and carrying of kirpans" ;
- Right of "every religious denomination or any section thereof - subject to public order, morality and health - to establish and maintain institutions for religious and charitable proposes, "manage its own affairs of religion", and own and acquire movable immovable property and administer it "in accordance with law";
- People's "freedom as to payment of taxes for promotion of any particular religion";
- People's "freedom as to attendance at religious instruction or religious worship in educational institutions" wholly maintained, recognized, or aided by the State;
- Right of "any section of the citizens" to conserve its "distinct language, script or culture"
- Restriction on denial of admission to any citizen, to any educational institution maintained or aided by the State, "on grounds only of religion, race, caste, language or any of them";
- Right of all Religious and Linguistic Minorities to establish and administer educational institutions of their choice; and
- Freedom of Minority-managed educational institutions from discrimination in the matter of receiving aid from the State.
Part IV of the Constitution of India, containing non-justifiable Directive Principles of State Policy, includes the following provisions having significant implications for the Minorities:
- Obligation of the State "to endeavor to eliminate inequalities in status, facilities and opportunities" amongst individuals and groups of people residing in different areas or engaged in different vocations;
- Obligation of State to "endeavor to secure for the citizens a uniform civil code throughout the territory of India";
- Obligation of State "to promote with special care" the educational and economic interests of "the weaker sections of the people" (besides Scheduled Castes and Scheduled Tribes; and
- Obligation of State to "take steps" for "prohibiting the slaughter of cows and calves and other milch and draught cattle".
- Citizens' duty to promote harmony and the spirit of common brotherhood amongst all the people of India "transcending religious, linguistic and regional or sectional diversities; and
- Citizens' duty to "value and preserve the rich heritage of our composite culture".
- Official obligation to pay out of the consolidated funds of the States of Kerala and Tamilnadu 46.5 and 13.5 lakh rupees respectively to the local "Dewasom Funds" for the maintenance of Hindu temples and shrines in the territories of the erstwhile State of Travancore-Cochin;
- Special provision relating to the language spoken by a section of the population of any State;
- Provision for facilities for instruction in mother-tongue at primary stage;
- Provision for a Special Officer for Linguistic Minorities and his duties;
- Special provision with respect to Naga religious or social practices, customary law and procedure, and "administration of civil and criminal justice involving decisions according to Naga customary law."
- Identical special provision for the Mizos; and
- Provision relating to continuation in force of pre-Constitution laws "until altered or repealed or amended by a competent legislature or other competent authority"
Article 14: This ensures equality before law and equal protection of law.
Article 15: This prohibits discrimination on any ground i.e. religion, race, caste, sex, place of birth.
Article 21: No person shall be deprived of his life or personal liberty except the procedure established by law.
Article 25: This ensures freedom of conscience and the right freely to profess, practice and propagate religion.
Article 26: This ensures a right to manage religious institutions, religious affairs, subject to public order, morality and health.
Article 29: Gives minorities a right to conserve their language, script or culture.
It provides for the protection of the interests of minorities by giving them a right to establish and administer educational institutions of their choice. The State is directed not to discriminate against minorities institutions in granting aid.
Article 350A: Directs the State to provide facilities for instruction in the mother tongue at the primary stage of education.
Art 164(1): According to this article in states of Bihar, MP and Orissa there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the scheduled castes and backward classes.
Art 244(1): Regarding administration of scheduled areas and tribal areas - (1) The provisions of the Fifth schedule shall apply to the administration and control of the Scheduled areas and Scheduled tribes in any state other than the state of Assam, Meghalaya, Tripura and Mizoram. (2) The provisions of the sixth schedule shall apply to the administration of the tribal areas in the state of Assam, Meghalaya, Tripura and Mizoram.
Art 244(A): Formation of an autonomous state comprising certain tribal areas in Assam and creation of local legislature or Council of Ministers or both thereof. Parliament may by law form within the state of Assam an autonomous state comprising (whether wholly or part) all or any of the tribal areas.
Art 275: Provided that there shall be paid out of consolidated fund of India as grants-in-aid of the revenues of a state such capital and recurring sums as may be necessary to enable the state to meet the costs of such schemes of development as may be undertaken by the state with the approval of the Govt of India for the purpose of promoting the welfare of the scheduled tribes in that state or raising the level of administration of the scheduled areas therein to that of the administration of the rest of the areas in that state. Provided further that there shall be paid out of the consolidated fund of India as grant-in-aid of the revenues of the state of Assam sum capital and recurring.
Art 330: Reservation of seats for the scheduled castes and scheduled tribes in the House of People.
- Seats shall be reserved for scheduled castes
- The scheduled tribes except the scheduled tribes except the scheduled tribes in the autonomous districts of Assam
- The scheduled tribes in the autonomous districts in Assam.
Art 332: Reservation of seats for scheduled castes and scheduled tribes in the Legislative Assemblies of the states.
- Seats shall be reserved for the scheduled castes and the scheduled tribes (except the ST's of autonomous districts of Assam) in the Legislative Assembly of every state.
- Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the state of Assam.
Art 334: Reservation of seats and special representation in Legislative Assemblies and House of People to cease after fifty years.
Art 335: Claims of scheduled castes and scheduled tribes to service and posts-The claims of the members of the scheduled castes and scheduled tribes shall be taken into consideration consistently with the maintenance of efficiency of administration in the making of appointments to service and posts in connection with the affairs of the Union or of a state.
Art 338: National Commission for scheduled castes and scheduled tribes
Art 339: Control of the Union over the administration of Scheduled castes and Scheduled tribes.
Art 340: Appointment of a commission by the president to investigate the conditions of backward classes.
Art 341: Power of the President to specify the castes, races or tribes or posts of or groups within castes, races or tribes as scheduled castes.
Art 342: Power of the President to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities as scheduled tribe.
Art 350(A): Facilities for instruction in mother tongue of a minority group.
Art 350(B): Special officer for linguistic minorities.
Types of Justice
Procedural, is concerned with making and implementing decisions according to fair processes that ensure "fair treatment." Rules must be impartially followed and consistently applied in order to generate an unbiased decision. Those carrying out the procedures should be neutral, and those directly affected by the decisions should have some voice or representation in the decision-making process.
Retributive appeals to the notion that people deserve to be treated in the same way they treat others. It is a retroactive approach that justifies punishment as a response to past injustice or wrongdoing. The central idea is that the offender has gained unfair advantages through his or her behavior, and that punishment will set this imbalance straight.
However, because there is a tendency to slip from retributive justice to an emphasis on revenge, some suggest that restorative justice processes are more effective. While a retributive justice approach conceives of transgressions as crimes against the state or nation, restorative justice focuses on violations as crimes against individuals. It is concerned with healing victim's wounds, restoring offenders to law-abiding lives, and repairing harm done to interpersonal relationships and the community.
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