Paragraph numbers below are the court’s original numbering, recovered from the source text.
1. I entirely agree with the views expressed by my learned Brother Justice G.S. Singhvi. Having regard to the changing B judicial approach noticed by His Lordship and if I, may say so, rightly, I may add a few words. I consider it a very important aspect in decision making by this Court.
2. Judges of the last Court in the largest democracy of the c world have a duty and the basic duty is to articulate the Constitutional goal which has found such an eloquent utterance in the Preamble. If we look at our Preamble, which has been recognised, a part of the Constitution in His Holiness Kesavananda Bharati Sripadaga/varu and others vs. State of Kerela and another- [1973 SC 1461], we can discern that as divided in three parts. The first part is a declaration whereby people of India adopte9 and gave to themselves the Constitution. The second part is a resolution whereby people of India solemnly resolved to constitute India into a sovereign, E socialist, secular, democratic republic. However, the most vital part is the promise and the promise is to secure to all its citizens: "JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; And to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;" [See Justice R.C. Lahoti, Preamble- The Spirit and backbone of the Constitution of India, Anundoram Barooah law Lectures, Seventh Series, Eastern Book Company, 2004, at p. 3] HARJINDER SINGH v. PUNJAB STATE WARE.HOUSING CORPORATION
3. Judges and specially the judges of the highest Court have a vital role to ensure that the promise is fulfilled. If the judges fail to discharge their duty in making an effort to make the Preambular promise a reality, they fail to uphold and abide by the Constitution which is their oath of office. In my humble opinion, this has to be put as high as that and should be equated with the conscience of this Court.
4. As early as in 1.956, in a Constitution Bench judgment dealing with an Article 32 petition, Justice Vivian Bose, while interpreting the Article 14 of the Constitution, posed the following question: "After all, for whose benefit was the Constitution enacted?" [Bidi Supply Co. vs. Union of India and others – AIR 1956 SC 479 at Para 23, pg. o 487)
5. Having posed the question, the Learned Judge answered the same in his inimitable words and which I may quote: "I am clear that the Constitution is not for the exclusive benefit of Governments and States; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the "butcher, the baker and the candlestick maker". It lays down for this land a "rule lof law" as understood in the free democracies of the world. It constitutes India into a Sovereign Democratic Republic and guarantees in every page rights and freedom to the individual side by side and consistent with the overriding power of the State to act for the common good of all. n [Ibid, Emphasis supplied) c (2010) 1 S.C.R.
6. The essence of our Constitution was also explained by the eminent jurist Palkhivala in the following words: "Our Constitution is primarily shaped and moulded for the common man. It takes no account of "the portly presence of the potentates, goodly in girth". It is a Constitution not meant for the ruler "but the ranker, the tramp of the road, The slave with the sack on his shoulders pricked on with the goad, The man with too W"ighty a burden, too weary a load."" [N. A. Palkhivala, Our Constitution Defaced and Defiled, MacMillan, 1974, p. 29)
7. I am in entire agreement with the aforesaid interpretation of the Constitution given by this Court and also by the eminent jurist.
8. In this context another aspect is of some relevance and it was pointed out by Justice Hidayatullah, as His Lordship was then, in Naresh Shridhar Mirajkar and others vs. State of Maharastra and Anr. – [AIR 1967 SC 1). In a minority judgment, His Lordship held that the judiciary is a State within the F meaning of Art. 12. [See paras 100, 101 at page 28, 29 of the report]. This minority view of His Lordship was endorsed by Justice Mathew in Kesavananda Bharati (supra) [at page 1949, para 1717 of the report] and it was held that the State under Article 12 would include the judiciary.
9. This was again reiterated by Justice Mathew in the Constitution bench judgement in the case of State of Kerela and another vs. N. M. Thomas and others [AIR 1976 SC 490) where Justice Mathew's view was the majority view, though HARJINDER SINGH v. PUNJAB STATE WAREHOUSING CORPORATION given separately. At para 89, page 515 of the report, his A Lordship held that under Article 12, 'State' would include 'Court'.
10. In view of such an authoritative pronouncement the definition of State under Article 12 encompass the judiciary and in Kesavananda (supra) it was held that "judicial process" is 8 also "state action" [Para 1717, pg. 1949]
11. That being the legal position, under Article 38 of the Constitution, a duty is cast on the State, which includes the judiciary, to secure a social order for the promotion of the welfare of the people. Article 38(1) runs as follows: '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." This is echoing the preambular promise c
12. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political informs all the institution of the national life. This was also made E clear in Kesavananda Bharati (supra) by Justice Mathew at para 1728, p. 1952 and His Lordship held that the Directive Principles nevertheless are: " … fundamental in the governance of the country and all the F organs of the State, including the judiciary are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience."
13. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother J. Singhvi that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate A it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society In view of the clear constitutional mandate discussed above.
14. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our Constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
15. Commenting on the importance of Article 38 in the C Constitutional scheme, this court in Sri Srinivasa Theatre and Others vs. Government of Tamil Nadu and others [(1992) 2 sec 643], held that equality before law is a dynamic concept having many facets. One facet- the most commonly acknowledged- is that there shall be not be any privileged D person or class and that none shall be above the law. This Court held that Art 38 contemplates an equal society [Para 10, pg. 651].
16. In Indra Sawhney and Others vs. Union of India and E Others [1992 Supp. (3) SCC 217], the Constitution Bench of the Supreme Court held that: "The content of the expression "equality before law" Is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39- A, 41 and 46." [at Paras 643, pg. 633)
17. Therefore, the Judges of this Court are, not mere phonographic recorders but are empirical social scientists and · G the interpreters of the social context in which they work. That is why it was said in Authorised Officer, Thanjavur and another vs. S. Naganatha Awar and others – [(1979) 3 SCC 466), while interpreting the land reforms Act, that beneficial construction has to be given to welfare legislation. Justice Krishna Iyer, speaking HARJINDER SINGH v. PUNJAB STATE WAREHOUSING CORPORATION for the Court, made it very clear that even though the judges A are "constitutional invigilators and statutory interpreters" they should "also be responsive to part IV of the Constitution being "one of the trinity of the nation's appointed instrumentalities in the transformation of the socio-economic order". The Learned Judge made it very clear that when the Judges "decode social legislation, they must be animated by a goal oriented approach" and the Learned Judge opined, and if I may say so, unerringly, that in this country "the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme." [Para 1, p. 468] c
18. I am in entire agreement with the aforesaid view and I share the anxiety of my Lord Brother Justice Sf nghvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy.
19. I am bf the view that any attempt to dilute the constitutional imperatives in order to promote the so called trends of "Globalisation", may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal. Here if we may remember Tagore who several decades ago, in a slightly different context, spoke of eventualities which may visit us in our mad rush to ape western ways of life. Here if I may quote the immortal words of F Tagore: "We have for over a century been dragged by the prosperous West behind its chariot, choked by the dust, deafened by the noise, humbled by our own helplessness and overwhelmed by the speed. We agreed to G acknowledge that this chariot-drive was progress, and the progress was civilization. If we ever ventured to ask "progress toward what, and progress for whom", it was considered to be peculiarly and ridiculously oriental to entertain such ideas about the absoluteness of progress. [2010) 1 S.C.R. Of late, a voice has come to us to take count not only of the scientific perfection of the chariot but of the depth of the ditches lying in its path."
20. How stunningly relevant are these words and how deep 8 are the ditches created in our society by the so called advance of globalization. c
21. At this critical juncture the judges' duty, to my mind, is to uphold the constitutional focus on social justice without being in any way misled by the glitz and glare of globalization. R.P. Appeal allowed.