The Constitution of India has appointed the Judiciary as the sole protector of the fundamental rights of the citizens. The wide powers were conferred on the Judiciary by the Constitution for the same. However, there were few challenges before the Judiciary such as- How to secure the fundamental rights in an adversarial system? How to ensure that the imbalance due to inequalities of parties will not deprive the weaker party of justice?

Well! The Indian Judiciary has resorted to the social context adjudication, whereby, it showed a positive inclination towards the weaker party, to uphold the fundamental rights of such a party. Hence, the admirable effort of the Judiciary has ensured equality, dignity and justice for everyone, which per se accomplishes the very purpose of the Constitution of India.

Introduction
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people- Martin Luther King.[i]

Justice for everyone:

The preamble of the Constitution of India enshrines justice, equality, liberty and fraternity as its ideals. The ability of our Constitution to strive for justice (social, economic and political) for the vulnerable and downtrodden sections of society is impeccable.

Travesty of justice:

The rights enshrined by the Constitution comes in peril when the vulnerable sections of society are deprived of justice. The denial of justice due to any custom (denying entry of women in the Sabarimala temple), legislation (Section 377, 497 of IPC) or imbalance due to social inequalities between the parties is the worst aspect, which brings dishonor to the Constitution of India.

Social context adjudication (Modus operandi):

The inclination of Judges towards the weaker party ensure that the rights of such party will not be compromised on any grounds. If any custom or provision of a statute offends their rights, then the judiciary by resorting to social context adjudication will expand the scope of their rights.

Social context adjudication is indispensable:

Such adjudication by the Indian Judiciary has led to the origin of Public Interest Litigation in India to ensure that the social inequality between the parties doesn't lead to a miscarriage of justice. Some other eminent examples are; the origin of the principle of absolute liability, decriminalization of section 377 and 497 of IPC and upholding the rights of migrant laborers during the pandemic COVID-19.

In this study, I have elucidated the meaning and advantages of social context adjudication. Moreover, I have emphasized upon the social context adjudication by the Indian Judiciary and the importance of social context adjudication in the adversarial litigation.

What is social context adjudication?

Social context adjudication or social context judging is the application of the equality jurisprudence as evolved by the Parliament and the Supreme Court in myriad situations presented before Courts where unequal parties are pitted in adversarial proceedings and where Courts are called upon to dispense equal justice.[ii]

When the economic inequality between parties lead to an unequal fight, the adversarial litigation puts the weaker party in a disadvantageous position. In such a situation, the judge should be sensitive to the inequalities of the parties and positively inclined towards the weaker party, so the imbalance between the parties doesn't lead to a miscarriage of justice.[iii]

Advantages of social context adjudication:

The various advantages of the social context adjudication are mentioned hereunder:

• It protects and promotes the rights of the weaker party.
• It upholds equality and justice in society.
• It ensures that any custom or legislation cannot transgress the basic fundamental rights of any citizen.
• It is a key factor behind transformative constitutionalism, which is pivotal to meet the interests of the evolving society.

The social context adjudication in India:

The Indian Judiciary from way back has resorted to the social context adjudication to uplift the interests of the downtrodden people. Some of the remarkable judgments of the Hon'ble Supreme Court (Hereinafter referred as SC), where the social context adjudication has ensured a dignified life to the victims are enumerated hereunder:

1. Evolution of PIL in India:

   The concept of PIL was a relaxation to the locus standi rule. PIL was introduced by the Hon'ble Justice P.N. Bhagwati.[iv] It refers to litigation undertaken to secure public interest and demonstrates the availability of justice to socially disadvantaged parties.[v]
    

2. Evolution of the principle of absolute liability:

   The Hon'ble SC has formulated the doctrine of absolute liability, according to which an enterprise is under an obligation to conduct an inherently dangerous activity with the highest standards of safety. If there is any harm due to the activity, then the enterprise will be absolutely liable to compensate for such harm and no excuse will be entertained.[vi]
    

3. Expanding the scope of Fundamental rights under article 21 of the Constitution:

   The Hon'ble SC has continuously expanded the scope of Article 21 of the Constitution. The term ‘life' in the Right to life means something more than the mere animal existence.[vii] The right to ‘dignity, privacy, livelihood, sleep, health, healthy environment, etc.' is declared as essential facets of the Right to life by the Judiciary.
    

4. Ban on triple talaq (talaq-e-biddat):

   The Hon'ble SC has imposed a ban on the practice of triple talaq by declaring it violative of article 14, 15 and 21 of the Constitution of India.[viii]
    

5. Right to the maintenance of Muslim women under section 125 of Cr.P.C.:

   The Hon'ble SC has allowed maintenance to Muslim women under section 125 of Cr.P.C.[ix]
    

6. Permitting maintenance to the second wife in Hindus:

   The Hon'ble SC has allowed maintenance to the second wife who has been trapped into marriage, by a person who is already married. [x] The Hon'ble Court has denied the ground that ‘the second wife is not entitled to maintenance, as the second marriage among Hindus in not valid.'
    

7. Decriminalization of adultery:

   The decriminalization of adultery by the Hon'ble SC was a pivotal step to set a lesson for the society that the women are not the chattel of their husband. [xi]
    

8. Decriminalization of Section 377 of IPC:

   The Hon'ble SC has decriminalized the consensual sexual intercourse between the adults of the same sex.[xii] The Hon'ble Court has mentioned in the judgement that history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.[xiii]
    

9. Acknowledging the legal status of live-in relationships:

   The Hon'ble SC has conferred the legal status to live in relationships in India.[xiv] Moreover, the Apex court has considered the legitimacy of children born out of such wedlock and vested then with the inheritance rights.[xv]
    

10. Protecting the rights of migrant laborers during the pandemic COVID-19:

    The Hon'ble SC has directed the Centre and States to withdraw any complaint or prosecution lodged against migrant laborers who were trying to leave for their native place.[xvi] Moreover, the Hon'ble Court has held that the states are responsible to provide them food and shelter and they can't be charged for their travel. [xvii]

Undoubtedly, the Hon'ble SC through social context adjudication, in the plethora of cases has ensured equality, dignity and justice for everyone. Hence, it is an important factor to preserve the rule of law, which comes within the ambit of the basic structure of the Constitution of India.

Conclusion:
The social context adjudication has secured justice for those, who were unable to avail it since the enactment of the Constitution. For example; The LGBT community was deprived of their basic fundamental rights for 68 years. Hence, it's per se sufficient to show the positive impact of such adjudication in society.

Though, the Hon'ble SC in a plethora of cases has safeguarded the rights of vulnerable sections through this mechanism. Still, there are many contemporary issues prevalent in society which requires such adjudication to ensure justice, such as:

• Criminalization of marital rape
• Permitting same-sex marriage
• Enactment of gender-neutral laws in India

This mechanism plays a key role in the adversarial litigation where a Judge has no role in the investigation and decides the case on the basis of arguments of the parties. In such a system, the positive inclination of the Judge towards the weaker party, whose rights are in question, guards justice for such party.

According to Hon'ble Justice Cardozo, It is true that codes and statutes do not render the Judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are hardships and wrongs to be mitigated if not avoided.[xviii] Therefore, it per se highlights that the work of Judges is not mechanical and they should go beyond the customs, statutes and precedents to ensure a broader interpretation of the fundamental rights of the aggrieved party, which is essential to constitute justice in true sense.

Social context adjudication is a key element behind the transformative constitutionalism, which is important to meet the interests of the evolving society. It's pivotal that similar to the Hon'ble SC, the Lower Courts or District Courts should also resort to the social context adjudication. It can prove to be a huge step in the direction of upholding equality, dignity and justice.
However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad.

However bad a constitution maybe, if those implementing it are good, it will prove to be good. –Dr. B. R. Ambedkar[xix]

End-Notes:

1. https://www.google.com/imgres?imgurl=https%3A%2F%2Fwww.azquotes.com%2Fpicture-quotes%2Fquote-history-will-have-to-record-that-the-greatest-tragedy-of-this-period-of-social-transition-martin-luther-king-15-89-92.jpg&imgrefurl.
2. Prof. (Dr.) N.R. Madhav Menon, Social Context Education For Social Justice Adjudication, http://rajasthanjudicialacademy.nic.in/docs/1_s5.pdf.
3. Ibid.
4. https://en.wikipedia.org/wiki/Public_interest_litigation_in_India.
5. Ibid.
6. Union Carbide Corporation v. Union of India, AIR 1992 SC 317.
7. Kharak Singh v. State of UP, AIR 1963 SC 1295.
8. Shayara Bano v. Union of India, AIR 2017 SC 4609.
9. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.
10. Badshah v. Sou. Urminal Badshah Godse, AIR 2014 SC 869
11. Joseph Shine v. Union of India, AIR 2018 SC 4898
12. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
13. Ibid.
14. Badri Prasad v. Dy. Director of Consolidation, AIR 1978 SC 1557.
15. Tulsa v. Durghatiya, (2008) 4 SCC 520.
16. In Re: Problems and Miseries of Migrant Laborers, 2020 (3) LLN 1 (SC).
17. Ibid.
18. Badshah v. Sou. Urminal Badshah Godse, AIR 2014 SC 869.
19. Wikipedia,https://www.google.com/url?sa=i&url=http%3A%2F%2Fwww.scrolldroll.com%2Fb-r-ambedkar-quotes%2F&psig=AOvVaw2odHyMKNoEhqGKdU3rTQ1Z&ust=1600321976447000&source=images&cd=vfe&ved=0CAIQjRxqFwoTCMj1p_D-7OsCFQAAAAAdAAAAABAD.
    
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