Jurisprudential Analysis Of Theories Of Justice In Indian Legal System
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JURISPRUDENTIAL
ANALYSIS
OF THEORIES OF JUSTICE IN INDIAN LEGAL SYSTEM Mr Siddharth Tyagi, Assistant Professor, Faculty of Law, GLS University, Ahmedabad
ABSTRACT
The issue of social justice is currently one of the most pressing issues confronting Indian society, and it is one of the most difficult to address. As a result, great intellectuals from the beginning of time have endeavoured to debate the significance of and the necessity of social justice in a rich culture such as India. Work by a contemporary American political and social thinker, John Rawls, has focused on the necessity of, and eventual establishment of, the social theory notion. Rawls is known for his campaign for social justice and for his support of social theory. To that end, this paper seeks to provide a philosophical critique of Rawls' idea of justice as well as an Importance and use for applying his social justice theory in the Indian political context.
When it comes to social justice, this seek to offer Rawls' stance as the most rational, faultless social and political argument that has ever been put up. However, the primary issue would be whether or whether it is required and relevant to the Indian people with precedents. Keywords: India, Rawl’s Theory, Social Justice, Social Theory
INTRODUCTION
It is the spirit and not the form of law that keeps justice alive. 1 – Earl Warren India is one of the ancient legal systems of the world and its origin can be dated back to centuries ago. From the Vedic period to present day legal system, although the legal jurisprudence has evolved with time and change in the society, the foundations of the legal principles still remain the same. Since the Vedic period, saints and scholars have propounded that justice, truth and righteousness are manifestations of the almighty himself. Shrutis, smritis, comments and digests of scholars, judicial pronouncements that have developed over time, all talk about one very important element of law, which is justice. Scholars like Manu, Yajnavalkya, Narda, etc have also highlighted the important role of justice in ancient legal system of India.
2 Later when Britishers came and stated ruling India, they did make some modifications in the Indian legal system and in existing rules and laws, but the idea of justice and equity remained intact. All the legislations that were enacted by Britishers were in consonance with the Idea of justice and equity. Justice, equity and good conscience are considered to be one of the most important sources of modern laws. After independence, the Indian constitution that was enacted also followed the same principles, as reflected by the preamble itself. Theories of justice as a significant, and abiding, concern of moral, political and legal theory. Cardozo has also mentioned this book ‘Nature of Judicial Process’3 that a judge refers to the theories of justice as developed by western philosophers to decide a case justly. Aristotle was one of the first scholars to write about the idea of justice.
He laid down the difference between corrective justice and distributive justice. Greek philosophers also have contributed significantly to the idea of justice, but their conception differs from that of the modern-day scholars like Bentham, Rawls, Nozick, etc. Justice includes both substantive and procedural justice. Procedural justice in India is embodied in the principles of natural justice whereas substantive justice is reflected from social justice. Both natural justice and social justice has been embodied in our Indian constitution, as is reflected from the preamble of the constitution, 1 THE TRIBUTE, https://www. tribuneindia. com/news/thoughtfortheday/it-is-the-spirit-and-not-the-form-of-lawthat-keeps-justice-alive-%E2%80%94-earl-warren-277014 (accessed Nov. 20, 2021, 12:24 PM).
2 Justice Markandey Katju, Ancient Indian Jurisprudencem BHU (Oct. 19, 2021, 7:22 PM),
https://www.bhu.ac.in/mmak/resent_article/JusticeKatjusLec.pdf.
3 BENJAMIN N. CARDOZO, The nature of the Judicial process (Ingram Short Title 2011).
Part III and Part IV. The legislature has timely amended the constitution as well as other legislations so as to make sure that its provisions meet principles of justice in the country. THEORIES OF JUSTICE According to McCoubrey and White, justice can never be completely and perfectly achieved, but can be closely achieved by ensuring equality in the society. St. Thomas Aquinas also stated that justice is achieved when welfare and equality for the people in the society is ensured. When we talk about justice, there always remains a conflict between individual claims and claims of society at large, maintain a balance between which is essential. Every scholar has their own views and theories of justice. For instance, John Rawls asserted primary importance on establishment of institutions and the emphasis on the societal behaviour was secondary.
The theory of justice by Thomas Hobbes believes on two approaches, firstly, that people just focus on perfect justice, rather than looking on for distinction between justice and injustice. The focus must only be on what attributes could lead to justice within a society and societies should not be compared as that would only lead to deviation for the idea of perfect justice. Justice shall be seen individually for any particular society and shall not compared with another. RAWL’S THEORY OF JUSTICE John Rawls came up with the theory of distributive justice. In a just society, the relation of individuals with themselves and with that of the society must be taken care of. It has been understood in terms of a laissez-faire approach, where the distribution of goods, wealth and other resources takes place justly. Here, resources mean material as well as legal resources.
But who is responsible to ensure just distribution? It is the authority in power that is responsible for distribution of resources amongst individuals in the society. Distributive justice is the basis of all other forms of justice, like economic justice, legal justice, etc. only when resources and wealth are allocated or distributed in a just manner, economic justice can be achieved. Similarly, legal justice can be achieved only when individuals of the country have equal access to legal resources and opportunities to approach courts. In today’s modern world, justice includes equal distribution and opportunity in terms of education, quality of life, medical facilities, employment, etc. distributive justice is considered as a means to achieve social justice. In Bowers v. Hardwick4, it was pointed that acceptance of homosexuality is a way
4 Bowers v. Hardwick, 478 U.S. 186 (1986).
forward towards achieving social justice. He propounded the social contract theory wherein justice is linked to the development of social institutions. The essence of Rawl’s theory in the issued of social justice and liberty is reflected in many Indian judicial pronouncements as well. for the purpose of social development, the Indian judiciary has number of times upheld the positive discrimination as well. the purpose of such discrimination is only to bring people, who are not represented well, into the mainstream society, at par with other sections of the society. In Indira Sawhney v. Union of India5, supreme court upheld the reservation of seats for backward classes in jobs. Further, this was supported by various judgments like Nagaraj v. Union of India6, E. V. Chinnaiah v. State of Andhra Pradesh7, Jarnail Singh v. Lacchmi Narain Gupta8, etc.
have timely upheld the reservation for backward classes in jobs, considering the changing situations of the society. This theory of justice is also reflected in article 1429, article 14410, Part II and Part III of the constitution. In M. C. Mehta v. Union of India11, it was stated that series of Public Interest Litigations in India have had a profound impact on the development of the idea of distributive justice in the country. Also, many environmental law principles laid down by the judiciary, like the Polluter Pays principle as stated in M. C. Mehta v. Union of India12 and Vellore Citizens Welfare Forum v. Union of India13, and the Public Trust doctrine as laid down in K. M. Chinappa v. UOI14, have been formed on the concept of distributive justice and corrective justice.
When the issue of adoption of American principle of ‘due process of law’ instead of ‘procedure established by law’ came before the court, court decided the issue following the principles of distributive justice. The general rule is that Supreme Court’s decision acts as a precedent for all other lower courts, but supreme court do have the power to reverse its own decisions, and it has timely done so in the interest of justice and for larger public good.
5 Indira Sawhney v. Union of India, 1992 Supp 2 SCR 454.
6 Nagaraj v. Union of India, Writ Petition (civil)61 of 2002.
7 E.V. Chinnaiah v. State of Andhra Pradesh, Appeal (civil)6758 of 2000.
8 Jarnail Singh v. Lacchmi Narain Gupta, SPECIAL LEAVE PETITION (CIVIL) NO.30621 OF 2011.
9 The Constitution of India, 1950, Art. 142.
10 The Constitution of India, 1950, Art. 144.
11 M.C. Mehta v. Union of India, AIR 1987 965.
12 Id.
13 Vellore Citizens Welfare Forum v. Union of India, 1996 5 SCR 241.
14 K.M. Chinappa v. UOI, Writ Petition (civil) 202 of 1995.
John Rawls authored a book in 1971 titled ‘A theory of Justice’, that links the social contract theory with equality and duty. A hypothetical situation is depicted by John Rawls wherein people are assumed to be ignorant in the society or behind a ‘veil of ignorance’ where they think that there is only a particular idea of justice. He has also pointed out the difference principle that appreciates positive discrimination wherein although the resources need to be allocated equally to all, but unequal distribution can also be done in certain cases if that is for the advantage of certain section of the society and it promotes equality. Emphasis is laid on the collective benefit of the society. Another theory that John Rawls has talked about is the theory of utilitarianism. It focused on welfare of the people.
It is the distribution of resources on the basis of which happiness of the people is valued here. People want maximum for themselves. They want to derive maximum happiness and benefits at minimal costs. However, allocating resources proportionally, rather than equally is a rational way to achieve equality and justice. Capitalism promotes injustice and is exploitative. The distribution of resources under capitalistic society leads to inequitable allocation and deprivation of rights of many. It hinders equality and justice. Justice is often construed in terms of fairness. However, in India, the idea of justice is viewed more in sense of a larger society rather than that of an individual.
INDIAN CONSTITUTION AND THEORIES OF JUSTICE Indian constitution largely follows the principle of distributive justice, that states that the procedure established by law must, not just in theory, but in practice as well, must change according to the changing needs of the society. Justice in this sense must be seen to be done in terms of fair distribution of resources and of rights and duties as well. Our constitution provides for three kinds of justice, namely social justice, legal justice and human justice. To ensure just representation of all people in our society, and to ensure each section of the society is benefited justly, our constitution has made special provisions for certain sections like women, children, SCs, STs, etc, which according to the law-makers are not represented in our society in a just manner.
In India, distributive justice is the basis for and helps achieve all other forms of justice as well. For instance, distributive justice ensures adequate distribution of resources and equal representation and opportunities for all sections of the society, hence helping to achieve economic justice as well. Or lets say, distributive justice can ensure equal social and economic conditions being available to all, which in turn would ensure legal justice in the country. Hence, distributive justice covers multiple aspects like adequate and equal distribution of resources, wealth, property, education, employment, etc, thereby helping in achieve a just society, i. e. , social justice. Amendments are also made to the constitution and other laws made in accordance with the constitution, so as to meet the needs of the changing and ever-evolving society.
These changes are made also with a view to bring justice in the society and to ensure development of the society. Not all rules are specifically mentioned in the constitution or laws made under it. There are some rules of law, that though are not specifically written in our constitution, but are followed widely and are essential in delivering justice. They are sometimes present in the essence of a particular provision, and such has been timely interpreted by judiciary so as to evolve the concept of justice. For example, the right of accused to a speedy trial is not specifically mentioned in our constitution, but the judiciary has interpreted it to be in essence of article 2115. Article 21 talks about right to life and liberty, and Indian courts have interpreted this right to include the right to fair and speedy trial as well.
This right is further supported by article 1416 (right to equality), article 3917 and article 39A18, all of which is an essential element for achieving distributive justice. Further, by virtue of article 5119, India has also recognized right to speedy trial as an important human right. Under article 21, a person can be deprived of his right to life and personal liberty, only in accordance with procedure established by law. But such cannot be done in an illegitimate or irrational manner. The procedure established by law to curtail right to life and personal liberty of a person must be fair and reasonable. This must be interpreted according to the changing concepts of justice, which very well has been taken care of by the judiciary. The constitution of India is primarily based on the principles of equality and justice.
William Sorley stated that one cannot come up with the idea of justice without equating it to social equality. Equality and justice go hand in hand. This position was reiterated by courts in Vaishakha v. State of Rajasthan20, wherein court ensured justice by ensuring equality to women and preventing harassment in work places. Another scholar Herbert Spencer stated that the concept of justice is not linked to equality, but is connected with freedom. People in the country must be given full liberty to acquire property, to carry on profession, business or occupation of
15 The Constitution of India, 1950, Art. 21.
16 The Constitution of India, 1950, Art. 14.
17 The Constitution of India, 1950, Art. 39.
18 The Constitution of India, 1950, Art. 39A.
19 The Constitution of India, 1950, Art. 51.
20 Vaishakha v. State of Rajasthan, AIR 1997 SC 3011.
his choice, to live wherever he wants to, to express his thoughts and opinions, etc, all of which has essentially been provided in our constitution. But there are certain restrictions imposed in this regard as well. Such liberty shall be provided to each and every individual equally and must be so that liberty of one does not hinder with liberties of other. Immanuel Kant also opined on similar lines that justice is achieved only when freedom is available to all. American philosopher Lester Ward stated that justice is achieved when all people, regardless of any distinction on the basis of sex, class, caste, race, nationality, etc. are given equal opportunity in terms of education and resources, so as to lead a better life.
It has been discussed that to achieve justice, the individual needs and liberties must be satisfied in consonance with the collective needs and liberties of the society. This would ensure equality and in turn promote justice. For this, each and every individual in the society must be accorded with an equal opportunity of being heard. This is the principle of natural justice, that ensures procedural justice in the judicial system and supports in the achievement of substantive justice. The preamble to the constitution prescribes certain objectives that the constitution and laws made thereunder focus on. These principles are equality, liberty and justice, for individuals, for society, for economy as well. These principles as engraved in the preamble are the very essence of the distributive justice theory of Rawls.
Article 14 of the Indian constitution talks about equality before law and states – “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”21. It mentions about two primary concepts, equality before law and equal protection of laws, former being a negative concept while latter being a positive one. equality before law means everyone is equal before law and no one can be treated unequally or could be barred from justice. There can be no arbitrary action taken up by the state. Whereas, Equal protection before laws puts an obligation on the state to protect rights of the people and to protect them justly. Equality here is talked in the sense of socio-economic equality, which further helps in achieving justice.
The article further also mentions about protection against arbitrariness. Each organ of the state has been given certain powers, but reasonable restrictions are imposed on such powers
21 Supra note 16.
to prevent them from taking arbitrary actions. government is also permitted to use its powers in making reasonable classifications for the people that they think are not adequately represented and require special treatment in order to be considered at par with other sections. Such treatment becomes necessary to ensure equal distribution of resources and opportunities to them, which in turn is essential in achieving justice. This is something the John Rawls also talked about it in this distributive theory. Further, article 15 22of the Indian constitution talks about prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
It mentions that generally, legislature can make discrimination on reasonable criterias and on reasonable terms, for the benefit of those classes, but such discrimination shall not be solely on unreasonable grounds like religion, race, caste, sex or place of birth. Article 15 is connected to article 1623 that provides for equality of opportunity in matters of public employment, and states that in matters of employment, discrimination cannot be made on the grounds of religion, race, caste, descent, place of birth, sex or residence. But reservation in posts can be made on certain other reasonable grounds, example certain seats of a post can be reserved for scheduled caste or scheduled tribes or any other class of people who according to the legislature are not adequately represented. John Rawl’s theory goes hand in hand with these two articles.
John Rawls also believes that erroneous factors like caste, race, religion, sex and such factors shall not deprive somebody of equal opportunities and equal resources as that of others. However, in order to bring any deprived section of the society into the mainstream section, providing certain additional benefits to them is justified. This is positive discrimination and such inequality will help ensure equality in future. Right to life and liberty of a person is protected by article 2124 of the constitution. However, such right is not absolute and can be curtailed in accordance with the procedure established by law. With the changes taking place in the society and increasing conception of rights, the judiciary has also timely interpreted the word ‘life’ and ‘liberty’ to include many more aspects like human dignity, health, livelihood, environment, etc.
the grounds for curtailment of such rights must be reasonable. This provision ensures that every person enjoys certain basic human rights in the country and they live in an equal and liberal society.
22 The Constitution of India, 1950, Art. 15.
23 The Constitution of India, 1950, Art. 16.
24 Supra note 15.
Apart from the above discussed fundamental rights, certain directive principles of state policies also support the distributive justice theory of John Rawls. Article 3825 of the constitution puts a duty on the state to ensure social order, welfare, opportunities, justice and order for people in the society. Further, article 39 tries to make sure that there is fair allocation and equal distribution of resources amongst people, so as to achieve justice in the society. The constitution of India and John Rawl’s theory of distributive justice was not formed in reference with each other or are not made on similar lines, but their motives are somewhere similar. Both aims at ensuring justice in society, providing equal allocation of resources to people, uplifting under-represented sections of the society so as to ensure equality, etc.
they believe that empowerment can help draw a balance of equality and justice for all.
CONCLUSION
Our Indian constitution does derive its essence from the distributive theory of justice, but it is practically influenced by a number of theories of justice. In today’s world, most of the countries, especially those that are democratic have main objective of securing justice, equality and freedom for its people. The preamble of the constitution states one of its objectives to include justice, equality and liberty as well. justice as mentioned in the constitution helps achieve peace, dignity, liberty and security for the people as well. It helps accept the changes taking place within the society. For instance, it is the concept of justice that has led to the development of the rights of LGBTQ community. We should focus more on positive rights. The aim must be to provide equal opportunities to everybody so that everyone can enjoy equal rights and liberties.
For this, the constitution also permits positive discrimination. Like under article 15, making special provisions for women and children is permitted as these two classes are considered to not be adequately represented. Hence, making special provisions for them would only pave way for bringing them into the mainstream sections of the society, so that they enjoy equal rights and opportunities. The first step in achieving justice is to treat people equally and for this different rule and conditions can be made applicable on different categories of people. In past, the concept of justice did not take into account the discrimination and unequal allocation to the marginalized or under-represented sections of the society. They have always
25 The Constitution of India, 1950, Art. 38.
faced violence and oppression in past. Legislations have timely attempted to eradicate the social injustices by transforming the society and trying to bring them into the mainstream sections of the society. Justice primarily is the adequate allocation of opportunities and privileges in the society. This social justice, according to him, is often seem to be under the veil of ignorance wherein such a person is deemed to not be aware of the caste, religion, sex, etc. A person will choose only what satisfies his own individual needs. But this veil of ignorance is highly criticized as it will not be possible to look into the larger interest of the society and to ensure justice when a person is unaware of his status or position in the society.
This view has been accepted in the Indian jurisprudence, as discussed above and as witnessed from the concept of reservation for backward classes, for women and children, etc. reservations shall only promote equality and must not be such that, that in order to favor underprivileged, the privileged is discriminated and their rights are taken away. Hence John Rawls idea of justice has a significant presence in the Indian legal system. As mentioned earlier, the preamble of our constitution embodies the principles of justice, liberty and equality to all its citizens. India is a country where disparities prevail, be it between rich and poor, between people of different occupation, caste, class or sex. It is not easy to remove such disparities even when principles of equality and fairness and applied.
There is a need for certain amount of positive discrimination and inequality, provide they are to the advantage of all and they promote equality, fairness and justice. There is also an important role of legislations and courts here in ensuring justice and equality being delivered to the people. Social patterns, behaviors and challenges change with time and it is necessary for the three organs to cope up with this and ensure that this does not lead to increased injustice and inequality, rather it promotes equality and justice over time. Indian legislature and judiciary have since years attempted to do so but there is still a long way to go and to keep up with the contemporary changes so that justice seems to be done.