ACCESS TO JUSTICE TOWARDS THE CREATION OF INCLUSIVE SOCIAL ORDER of Chief Justice Ramana)85 of the constitutional obligation of the State under Article 45 of the Constitution that led us to its misconstruction! For due appreciation of the provisions of Article 45, we may raise another basic question: Why did the founding fathers of our Constitution place the subject of education in the very first instance within the ambit of Directive Principles of State Policy in Part IV, instead of Part III of the Constitution? Did the founding fathers make the subject of education non-enforceable by inadvertent omission, which was later corrected by the Supreme Court (by reading Article 45 in conjunction with Article 21) and the Parliament (through the Constitution (Eighty-sixth Amendment) Act, 2002? In our own understanding, the very purpose of placing Article 45 in Part IV of the Constitution was by design and not by default? Even at the cost of repetition, we inquire again: What was the design in making the subject of ‘free and compulsory education’ non-enforceable for all children up to the age of 14 years? Our exploratory response is: vis-à-vis children, the State was considered in the position of, what is termed as patria potestas in Roman law, which literally means the “power of a father” over his children and family,86 and likewise as Karta in the Hindu joint family system, who enjoyed the pivotal position in the matters of family, including the welfare of children, in the Indian classical tradition of Hindu law.87 By putting the State into the position of patria potestas or Karta for fulfilling the constitutional mandate to provide free and compulsory education, do we need to make Article 45 justiciable; that is, to invoke the interventional provision of ‘access to justice’ through the instrumentality of court? The clear answer is not in the affirmative, but negative. Why? And this takes us to the second basic flaw. 85 86 87 See, Hindustan Times, July 3, 2022. Recently, the Chief Justice of India, N.V. Ramana, while addressing the Indian diaspora at an event organised by the Association of Indo Americans, in San Francisco, USA, lamented the “flawed thinking” generally about “the roles and responsibilities assigned by the Constitution to each of the Institutions.” Lest, the purport of his thoughts is misunderstood, his statement is quoted in full: “As we celebrate 75th year of Independence this year and as our Republic turned 72, with some sense of regret, I must add here that we still haven’t learnt to appreciate wholly the roles and responsibilities assigned by the Constitution to each of the Institutions.” In his own assessment, “this flawed thinking of all hues flourishes in the absence of proper understanding among people about the Constitution and the functioning of the democratic institutions.” [Emphasis supplied] In Roman law the “power of a father” over his children and family, was conceived as a fundamental principle of Roman society. Hindu Law is acclaimed as having “the oldest pedigree of any known system of jurisprudence.” See, Virendra Kumar, “Hindu Law: Overview,” Published in The Oxford International Encyclopaedia of Legal History (Oxford University Press, USA, (2009) 21