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Special Articles / Ashok Antony D'Souza / Social Development through Social Work The basic source of social policy is the Constitution of any country and varied kinds of social enactments made there under because the Constitution acts like a fountainhead wherefrom flow all the directions in the light of which specific laws promoting proper human and social development are enacted. Similarly, human rights form the basis of any social policy today as most of the countries are members of United Nations Organization which spearheads human rights movement and would have ratified most of its conventions. Hence, in this chapter let us try to understand how the ideals of Indian Constitution and that of Human Rights form a basis for the formulation of social policy and enactment of social legislation. The Constitution of India has solemnly promised to all its citizens justices-social, economic and political; liberty of thought expression, belief, faith and worship; equality of status and of opportunity; and to promote among the all fraternity assuring the dignity of the individual and the unity of the nation. The Constitution has attempted to attune the apparently conflicting claims of socio-economic justice and of individual liberty and fundamental rights by putting some relevant provisions.
A careful study of Indian Constitution shows that it is based upon eight basic principles. They could be listed as: i) Popular Sovereignty ii) Socialism iii) Secularism iv) Fundamental Rights v) Directive Principles of State Policy vi) Judicial Independence vii) Federalism viii) Cabinet Government The Preamble The Preamble of India reads as follows: “We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC, and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949 do HEREBY ADOPT, ENACT, AND GIVE TO OURSELVES THIS CONSTITUTION.” India is a Sovereign Socialist Secular Democratic Republic with a parliamentary system of government. The Republic is governed in terms of the Constitution, which was adopted by the Constituent Assembly on 26 November 1949 and came into force on 26 January 1950. The Constitution of India contains provisions not only for the smooth democratic functioning of the governments of the Union and the states but also for ensuring equality and liberty to the citizens. There are provisions which provide channels for all-round development of the people. In this sense, the Constitution is the prime mover of social change. Some of these constitutional provisions have been discussed here to illustrate the point. Fundamental Rights The Constitution of India has provided some basic rights to all citizens. These are known as Fundamental Rights. These are fundamental because these are essential for civilized human existence. In the context of our Constitution these are called fundamental because these are protected by the written Constitution and cannot be altered without amending the Constitution. There are six categories of Fundamental Rights. Articles 12 to 35 contained in Part III of the Constitution deal with these rights. These are: (i) Right to Equality: According to this provision, the State shall not deny to any person equality before law. It also prohibits the State from discriminating against any individual on the grounds of religion, race, caste, gender or place of birth. It further provides equality of opportunity in matters of public employment. Abolition of untouchability in any form has been specified by Article 17. (ii) Right to Freedom: This right consists of Freedom of (a) speech and expression; (b) peaceful assembly without arms; (c) forming associations and Unions; (d) free-movement throughout the territory of India; (e) residence and settlement in any part of the country; and (f) practice of any profession, occupation, trade or business. (iii) Right against Exploitation: It prohibits all forms of forced labour, child labour and traffic in human beings. (iv) Right to Freedom of Religion: Every person has the right to profess, practice and propagate any religion. No person is compelled to pay taxes for the management of any particular religion. According to it, no person is allowed to impart religious instructions in state-owned educational institutions. (v) Cultural and Educational Rights: Every section of citizen has the right to conserve its distinct culture, language and script. Further, all minorities whether based on religion or language have the right to establish and administer educational institutions of their choice. (vi) Right to Constitutional Remedies: Under this, every person has the right to seek justice for the enforcement of Fundamental Rights. Article 19 enshrines the fundamental rights of the citizens of this country. The seven sub-clauses of Article 19(1) guarantee the citizens seven different kinds of freedom and recognize them as their fundamental rights. Article 19 considered as a whole furnishes a very satisfactory and rational basis for adjusting the claims of individual rights of freedom and the claims of public good. Articles 23 and 24 provide for fundamental rights against exploitation. Article 24, in particular, prohibits an employer from employing a child below the age of 14 years in any factory or mine or in any other hazardous employment. Article 31 makes a specific provision in regard to the fundamental right to property and deals with the vexed problem of compulsory acquisition of property. Article 38 requires that the state should make an effort to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social, economic and political shall inform all the institutions of national life. Article 39 clause (a) says that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular provide free legal aid, by suitable legislation or schemes, or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Article 41 recognizes every citizen’s right to work, to education & to public assistance in cases of unemployment, old age, sickness & disablement and in other cases of undeserved want. Article 42 stresses the importance of securing just and humane conditions of work & for maternity relief. Article 43 holds before the working population the ideal of the living wage and Article 46 emphasizes the importance of the promotion of educational and economic interests of schedule castes, schedule tribes and other weaker sections. The social problem presented by the existence of a very large number of citizens who are treated as untouchables has received the special attention of the Constitution as Article 15 (1) prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. The state would be entitled to make special provisions for women and children, and for advancement of any social and educationally backward classes of citizens, or for the SC/STs. A similar exception is provided to the principle of equality of opportunity prescribed by Article 16 (1) in as much as Article 16(4) allows the state to make provision for the resolution 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. Article 17 proclaims that untouchability has been abolished & forbids its practice in any form & it provides that the enforcement of untouchability shall be an offence punishable in accordance with law. This is the code of provisions dealing with the problem of achieving the ideal of socio-economic justice in this country which has been prescribed by the Constitution of India. Directive Principles of State Policy Social policy in India has been specifically enunciated in Part IV of the Constitution entitled as Directive Principles of State Policy. There are specific Articles like 38 and 46 which provide for promotion of people’s welfare within the overall framework of social justice. Like the Fundamental Rights, the ideals behind the Directive Principles of State Policy were rooted in our freedom struggle. Leaders of the freedom struggle strived not only for political freedom but also for social and economic upliftment of the toiling millions. These Principles were inserted in the Constitution to provide guidelines for the determination of policies and actions to be undertaken by the State after Independence. Articles 36 to 51 of Part IV of our Constitution deal with these Principles. The significant aspect of the Directive Principles is that “the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice—social, economic and political—shall inform all the institutions of the national life.” Keeping this objective in view the State shall secure (a) adequate means of livelihood for all citizens; (b) control and distribution of wealth so as to subserve the common good; (c) equal pay for equal work; (d) health and strength for all from economic avocations, and (e) protection from child labour. The state is expected to take steps and secure other social, economic and political programmes. Some other programmes include (a) organization of village panchayats, (b) right to work and to education, (c) uniform civil code for the citizens, (d) provision for free and compulsory education, (e) promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections, and (f) separation of the judiciary from the executive. It is, however, important to note that there is one basic difference between the Fundamental Rights and the Directive Principles of the State policy. While the violation of the former can be challenged in the court of law, the latter is not enforceable by any court. In other words, if a citizen’s fundamental rights are curtailed she/he can seek justice from the court. But if the State does not undertake any programme provided for in the Directive Principles, she/he cannot move the court for its enforcement. It does not, however, mean that these Directive Principles have no value. The Constitution clearly states that Directive Principles “are, nevertheless, fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” The Directive Principles of our constitution visualizes an economic and social order based on equality of opportunity, social justice, and the right to work, right to an adequate wage and a measure of social security for all citizens. These directive principles provide a guideline of state policy. Planning in India has to follow these guidelines and to initiate action, which, will, in due course create, desired social and economic pattern. The directive principles are an expression of the will of people for economic growth and consequently the government adopted planning as a means for fostering economic and social development. Four long-term objectives were set out by the planners in India. They were:
Affirmative Action The concept of the ‘disadvantaged and the need for affirmative action’ emerged in the 1960s as a result of efforts by the Civil Rights Movement in the USA to get America to honour its original contract, that ‘all [people] are created equal.’ In addition, the Pledge of Allegiance promised ‘liberty and justice for all.’ This idealism was a promise of equal opportunity for all individuals regardless of colour, national origin, race, religion and sex, which up to that point in history had not been honoured. For this inalienable right, the founders and the followers of the civil rights movement marched and died, finally obtaining the Civil Rights Act of 1964. The Johnson Administration embraced affirmative action in 1965 by issuing the United States Executive Order 11246, later amended by the Executive Order 11375. The order, as amended, aimed ‘to correct the effects of past and present discrimination’. It prohibited federal contractors and sub-contractors from discriminating against any employee or applicant for employment because of race, skin colour, religion, gender, or national origin. In order to correct such inequities, especially in the areas of housing, education and employment, steps were taken to ensure that those groups that, historically, had been excluded or given limited access to societal rewards, were now given an opportunity to catch up. Thus, it referred to social policies encouraging favourable treatment of socially disadvantaged groups, especially in employment, education, and housing, without regard to race, colour, religion, sex, or national origin. To reverse the historical trends of discrimination and to create equality of opportunity for qualified persons was the motive behind the concept. Affirmative action becomes essential in righting societal inequities. It is based on the “principle of redress”; that undeserved inequalities call for rectification. Since inequalities of birth are undeserved, these inequalities are to be somehow compensated for. According to Rawls, thus, in order to treat all persons equally and to provide genuine equality of opportunity, society must give more attention to those born into or placed in less favorable social positions. Affirmative action was established as a part of society’s efforts to address continuing problems of discrimination; the empirical evidence presented in the preceding pages indicates that it has had a somewhat positive impact on remedying the effects of discrimination. India has been practicing affirmative action in its essence, longer and more aggressively than any other place in the world. Reservation system has been followed widely in the educational and the employment arena since the 1950s for deprived members of the caste system, such as the untouchables. For example, in India’s parliament, the ‘outcaste’ and other indigenous tribes are guaranteed a number of seats numerically proportional to their demographic representation. It is with the lofty aim of alleviating the sufferings of the underprivileged and exploited sections of Indian society and for reconstruction and transformation of a hierarchical society emphasizing inequality into a modern egalitarian society based on individual achievement and equal opportunity for all that the protective discrimination programme was devised under the Indian Constitution. However, this ideal of egalitarianism did not come about in a day or two; rather it was the culmination of a long process of change in the traditional pattern of a medieval caste-ridden society. These changes were, in fact, the culmination of a long drawn process of transformation in the traditional patterns of a caste-ridden society. Two factors worked as catalysts in the process; the indigenous reforms and western influences. The founding fathers of the Indian Constitution were aware of the prevailing miserable and appalling conditions of backward groups who had remained far behind and segregated from the national and social mainstream and had continued to be socially oppressed and economically exploited for centuries due to various types of disabilities. These handicaps, resulting from societal arrangements such as caste structures and group suppressions constitutionally authorized preferences and protective discrimination, created a lot of confusion and conflicts leading to heated debates, court cases, street violence and social unrest. India, the biggest democratic system of the world, with a thousand million plus population and a mind-boggling variety, a system which boasts of more than 5000 years of history and continued civilization and a hoary past, has been experimenting with protective discrimination programmes on an unprecedented variety. Reservations in jobs, educational institutions, legislatures and in local self-governing institutions, better known as Panchayati Raj institutions for scheduled castes, scheduled tribes, other backward classes and now women has been a grand experiment by any standard. It may also be noted that scheduled castes, scheduled tribes and other backward classes are a whole cluster of thousands of castes spread over the length and breadth of the country. However, it has succeeded to some extent in achieving the target it had set before itself at the time of Independence. The basic form of affirmative action as public policy in India has been in the form of reservations for government jobs and in public educational institutions for certain social groups defined as underprivileged. There have been no attempts to force or encourage private sector reservation of a similar type. For most of the post Independence period, such reservation was confined to the Scheduled Castes and Scheduled Tribes, usually at just over one fifth of the total jobs/seats available. In the later 1980s, reservation was also introduced for social groups defined as Other Backward Classes, which were essentially socially lower castes who had achieved levels of political and economic voice far greater than their perceived social positions. These new reservations, which effectively meant that just above half the positions would be reserved, led to urban middle class outrage and protests at the time that they were introduced. Ironically, however, soon after the introduction of such new reservations, a freeze on new employment at the Central Government level and for most state governments effectively meant that such reservations became irrelevant. However, they did make some difference in terms of access to institutions of higher education for students from such groups. Overall, such affirmative action has had relatively little impact on the broader socio-economic position of the population belonging to the defined social groups. Nevertheless, it must be acknowledged that such social policy has long gestation period in terms of effects, and that it should be situated within a more evolutionary perspective on social dynamics, within which it can clearly play a positive role. Human Rights’ Approach Human rights are those rights which are essential to live as human beings’ basic standards without which people cannot survive and develop in dignity. They are inherent to the human person, inalienable and universal. As part of the framework of human rights law, all human rights are indivisible, interrelated and interdependent. Understanding this framework is important to promoting, protecting and realizing children’s rights. A democratic government implies a democratic state but a democratic state does not necessarily mean a democratic govt. A democratic state mean is that the community, as a whole possesses sovereign authority and maintains ultimate controlling and dismissing a government. Ideas of Human Rights could be discussed under three major instruments of Human Rights made use of by the UN. They are: i) Declarations: It enunciates general principles and broad obligations which are not legally binding on member states. For example, the Universal Declaration of H R of 1948, with its 30 Articles said that everyone in the world would be able to expect to be treated as a member of the human family ii) Covenants: These are the agreements which are binding on the member states that ratify the covenants. The two covenants derived in 1966 from the Universal Declarations are: a) The Covenant on Civil and Political Rights like right to life; freedom from torture, slavery, servitude, forced labor and unlawful arrest; freedom of movement, thought, opinion, conscience and religion; and so on. These are the contribution of liberal ideologists b) The Covenant on Economic, Social and Cultural Rights – recommends state intervention for redistribution of resources – emphasizes the right to government provision for basic necessities such as technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and full and productive employment. This covenant is the result of the socialist lobby. This has not been ratified by the US. Hence has not received much attention. iii) Convention: It is an international agreement to promote or protect specific human rights or fundamental freedoms. It is legally binding upon states which have become party to it by ratification. Basic Human Rights a) Freedom of speech, expression and the press. b) Freedom of religion. c) Freedom of assembly and association. d) Right to equalØ protection of the law. e) Right to due process and fair trial. This is by no means an exhaustive list of the rights that citizens enjoy in a democracy. Democratic societies also assert such civil rights as the right to a fair trial, but it does constitute the core rights that any democratic government must uphold. Since they exist independently of government, these rights cannot be legislated away, nor they are subject to the momentary whim of an electoral majority. The detailed formulation of laws and procedures concerning these basic human rights will necessarily vary from society to society, but every democracy is charged with the task of building the constitutional, legal, and social structures that will ensure their protection. Human Rights and Political Goals In recent times, there has been a tendency, especially among Indians, to expand the list of basic human rights. To fundamental freedoms of speech and equal treatment before the law, these groups have added rights to employment, to education, to one’s own culture or nationality, and to adequate standards of living. Governments protect inalienable rights, such as freedom of speech, through restraint, by limiting their own actions. Funding education, providing health care, or guaranteeing employment demand the opposite: the active involvement of government in promoting certain policies and programs. Adequate health care and educational opportunities should be the birthright of every child. The sad fact is that they are not, and the ability of societies to achieve such goals will vary widely from country to country. By transforming every human aspiration into a right, however, governments run the risk of increasing cynicism and inviting a disregard of all human rights. The right to equality before the law, or equal protection of the law as it is often phrased, is fundamental to any just and democratic society. Whether rich or poor, ethnic majority or religious minority, politically of the state or opponent, all are entitled to equal protection before the law. The democratic state cannot guarantee that life will treat everyone equally, and it has no responsibility to do so. However, writes constitutional law expert John P. Frank, “Under no circumstances should the state impose additional inequalities; it should be required to deal evenly and equally with all of its people.” No one is above the law, which is, after all, the creation of the people, not something imposed upon them. The citizens of a democracy submit to the law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people, then have to obey them, both law and democracy are served. The criminal justice system holds power with the potential for abuse and tyranny. In the name of the state, individuals have been imprisoned, had their property seized, and been tortured, exiled and executed without legal justification—and often without any formal charges ever being brought. No democratic society can tolerate such abuses. Every state must have the power to maintain order and punish criminal acts, but the rules and procedures by which the state enforces its laws must be public and explicit, not secret, arbitrary, or subject to political manipulation by the state.
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