Engaging in the Concept of Justice in Society

“The idea of law is not the same as the idea of justice. These are two different although related ideas. The idea of law is the idea of a social institution at work. The idea of justice provides the ends and means that such a social institution is trying to achieve.”¹

[In the official language of the Union of India, Hindi in Devanagari script, “justice” is translated as Nyaya and its opposite, injustice, is translated as Anyaya. But no such connection is established in Professor Chhatrapati Singh’s above work on the concept of justice, which he did not do as much a student of Law as he did as a student of Philosophy relying primarily upon Kant’s concept of justice and relating it to the concept of justice in Dharma in our system.² Writing from Trinity College, Cambridge in February 1922 Professor Surendranath Dasgupta in his A History of Indian Philosophy, writes: “The word Nyaya derived from the root ni is sometimes explained as that by which sentences and words could be interpreted as having one particular meaning and not another, and on the strength of this even Vedic accents of words (which indicate the meaning of compound words by pointing out the particular kind of compound in which the words entered into combination) were called Nyaya.” (276-277) In a long discussion of one hundred pages, Professor Dasgupta shows no connection of Nyaya philosophy to justice. In no other work also the Nyaya philosophy is related to the idea of justice. Professor Amartya Sen in his book The Idea of Justice mentions the expressions niti and nyaya and relates them to matsyanyaya without clearly indicating whether any of these words is an exact reflection of the idea of justice though an inference may be drawn that nyaya, in common parlance refers to justice³. Even the great tradition of public debates in ancient India generally ended up on matters such as undying Atma, or unknown or unseen Parmatma, or the theory of Karma, which connects your current life to your Karma in imagined previous life which could not be proved scientifically. (Bhikhu Parekh, Debating India, 1-33 (OUP, New Delhi, 2015).]

My concern for justice goes back to my LLM days in early 1960s when I decided to write the required dissertation on the protection of minorities including the Scheduled Castes (SCs) and the Scheduled Tribes (STs). Besides the other protections given to these classes under other provisions of the Constitution my primary focus was on special provisions for these classes among the fundamental rights. In course of teaching Constitutional Law at Delhi University, I realised that many students were not supportive of my arguments for the backward classes including the SCs and STs. In course of time, however, came a few cases that supported my interpretation of these provisions. More support I could get in the writings of Western scholars, which I utilised for the purpose of justifying the constitutional arrangements for the backward classes of people including the SCs & STs which I also tried to express and justify in one of my early writings.⁴

Relying primarily on Immanuel Kant’s concept of justice, Professor Chhatrapati Singh states: “In practice of course no legal system can work without involving a theory of justice, just as it cannot without involving a theory of the State.”¹

Howsoever praiseworthy Professor Chhatrapati Singh’s work is and whatever truth it may be expressing it may not be enough to satisfy the difficulty in clearly relating it to the concept of justice as it is understood either in the Constitution of India or in the common parlance for its application even though it may help in getting some sense of justice or injustice. It is not quite sure whether the concept of justice has been discussed somewhere in detail either in the Indian philosophy or by any scholar in India including Professor Amartya Sen in his book: The Idea of Justice in the context of an understanding of matsyanyaya, justice in the world of fish or again “In contrast with niti, the term “nyaya” stands for a comprehensive concept of realised justice.”³ He also developed a concept of justice with Martha Nussbaum, as well as in the context of his economic theories which will be taken up a little later. He further clarifies:

When people across the world agitate to get more global justice — and I emphasize here the comparative word “more” — they are not clamouring for some kind of “minimal humanitarianism”. Nor are they agitating for a “perfectly just” world society, but merely for the elimination of some outrageously unjust arrangements to enhance global justice, as Adam Smith or Condorcet or Mary Wollstonecraft did in their own time, and on which agreements can be generated through public discussion, despite a continuing divergence of views on other matters.

(emphasis supplied)

Similar measures in India have been cited with appreciation by Thomas Piketty, which have made real difference in the life of excluded and backward classes of people in India.⁵

Analysing initially the role of justice, John Rawls in A Theory of Justice (1971) states:

Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise, laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. … Being the first virtues of human activities, truth and justice are uncompromising.⁶

Rejecting the conception of justice propounded by utilitarians as the greatest happiness of the greatest number and following the social contract theory of Loke, Rousseau and Kant, John Rawls laid down the concept of justice in the following two principles:

First: Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.

Second: Social and economic inequalities are to be arranged so that they are both: (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.⁷

After detailed examination of the above two propositions of justice in the initial edition of the book, in the revised edition in 1999, John Rawls has modified these two propositions which now read as follows:

1. Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberties for all.

2. Social and economic inequalities are to be arranged so that they are both:

(a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and

(b) attached to offices and positions open to all under conditions of fair equality of opportunity.⁸

Rawls admitted the further possibility of improvement in the above two proposition but he did not try to do that in order to avoid further complications in the theory of justice.

Rawls has further pursued the theme of justice in his lectures on Political Liberalism.⁹ Here he pursues the theme of justice in four stages. The first stage is the original position in which the people assemble for taking the decision on justice, followed by constitutional, legislative and judicial stages. The first principle of the theory of justice is normally incorporated in the Constitutions followed by judicial review. The second principle may or may not be incorporated in the Constitution. It is not a constitutional sine qua non for a constitutional democracy. The US Constitution does not incorporate it in its body, though it is protected through legislation; the Constitution of India, however, incorporates this too. But both in the US and India it is subject to judicial review.

Supporting Rawls’ A Theory of Justice, which is criticised as status quoist theory, Dworkin says:

If I am right this point of view is foolish, and those who take it lose an opportunity, rare for them, to submit their own political views to some form of philosophical examination. Rawls’s most basic assumption is not that men have right to certain liberties that Locke or Mill thought important, but that they have a right to equal respect and concern in the design of political institutions. …¹⁰

Rawls does argue that the fundamental right to equality requires a liberal Constitution, and supports an idealised form of present economic and social structures.⁹ It is interesting to note that in his major work Justice for Hedgehogs, within the main title of “Justice” Dworkin’s first subtitle is “Equality” in which he says:

No Government is legitimate unless it subscribes to two reigning principles. First, it must show equal concern for the fate of every person over whom it claims dominion. Second, it must respect fully the responsibility and right of each person to decide for himself how to make something valuable of his life.¹¹

Dworkin also grounds justice in rights which means “the interest of each individual qua individual is sufficient to generate the moral requirement.”

To Dworkin rights are trumps. They are grounded in a principle of equal concern and respect. Any deviation by a Judge from this right is a matter of injustice. Rights are trumps over some background justification for political decisions that state a goal for the community.¹² They are not gifts from God. For Dworkin, anyone who “takes rights seriously” must accept the ideas of human dignity and political equality. He argues in favour of a fundamental right to equal concern and respect, and against any general right to liberty. The right to equal concern and respect is a final and not merely “prima facie right” — one person’s possession or enjoyment of it does not conflict with another’s.” Dworkin is critical of utilitarianism because it does not respect the right of everyone to be treated with equal concern and respect. He also rules out rooting justice in an equality of welfare, largely based on its being impracticable. Protection of minorities is, however, central to any theory of justice. The reason is simple: majoritarianism can so easily lead to the trampling on the rights of the minorities. Contradictory reasons in DeFunis¹³ and Sweatt cases¹⁴ in matters of admissions to academic institutions, we must show that the treatment of the one and not the other is in fact unjust. In any case minority protection guarantee is missing.

Contrasting utilitarian theory with rights theory, that of rights-based moral theory is in great difficulties because of the experience in producing arguments for the existence of rights. Thus, Waldron draws attention to arguments which “attempt to show that the denial of rights or the overriding of them in certain cases is rationally self-defeating, because the denial or the overriding of themselves involves an implicit recognition of the force of human rights.”¹⁵ The most sophisticated among these are Gewirth’s arguments which read as follows:

First, every agent holds that the purposes for which he acts are good on whatever criterion (not necessarily a moral one) enters his purposes. Second, every actual or prospective agent logically must therefore hold or accept that freedom and well-being are necessarily goods for him because they are necessary conditions of his acting for any of his purposes; hence he holds that he must have them. Third, he logically must therefore hold or accept that he has rights to freedom and well-being; for, if he were to deny this, he would have to accept that other persons may remove or interfere with his freedom and well-being, so that he may not have them; but this would contradict his belief that he must have them. Fourth, the sufficient reason based on which each agent must claim these rights is that he is a prospective purposive agent, so that he logically must accept the conclusion that all prospective purposive agents, equally and as such, have rights to freedom and well-being.¹⁶

(emphasis supplied)

Contrary to Rawls and Dworkin, Robert Nozick in his Anarchy, State and Utopia develops a concept of justice which he calls “entitlement theory” according to which economic goods are always encumbered with rightful claims of their ownership. He supports the idea of minimal State which in recent times was represented by the Thatcher-Regan era. He was critical of a State action for the promotion of equality including imposition of any tax for that purpose. Like John Locke and Herbert Spencer, he conceived a minimal State limited to the protection against force, theft, fraud, enforcement of contracts, etc. But quite a few of his arguments have no sound foundation including for example his opposition to the imposition of taxes. How can a society survive without intervention by others unless it has sufficient equipment to defend itself against the aggressors. Among Nozick’s critics Lukes rightly observes that his individualism is a “distorting lens which satisfies the intellect while simplifying the world.” He adds:

Nozick’s world not only excludes the ever-growing role of the State within contemporary capitalism; it is also radically pre-sociological, without social structure, or racial or cultural determinants of, and constraints upon, the voluntary acts and exchanges of its component individuals.¹⁷

Amartya Sen and Martha Nussbaum, especially the latter, have developed the idea of core human entitlements that should be respected and implemented by all governments “as a bare minimum of what respect for human dignity requires.” They include life of normal length, bodily health; bodily integrity; being able to use the senses to imagine, think and reason; expression of emotions; practical reason to plan one’s life; affiliation, (a) being able to live with and toward others, (b) having the social basis of self-respect and non-humiliation including non-discrimination on the basis of race, sex, sexual orientation, ethnicity, caste, religion, national origin; being able to live with other species; to play, laugh and enjoy recreational activities; and control over ones political and material environment. Capabilities belong first and foremost to individual persons and only derivatively to groups.¹⁸

Martha Nussbaum’s theory has close links with Rawls’s A Theory of Justice. She claims that her theory is fully universal. Unlike the social contract theory even of Rawl’s which is confined to human beings, Nussbaum’s theory can offer guidance superior to both utilitarianism and social contract theories.

Besides these general engagements with the concept of justice specific areas such as feminism and justice, economic theories of law and justice and corrective justice have also engaged scholars in determining and applying the concept of justice. This Article is, however, confined to the concept of justice in general which may be relevant to all humanity. Therefore, those specific areas do not form part of this discussion. But in the context of late Professor Chhatrapati Singh’s work a concept of justice in India in historical context will be attempted to be developed. Whether the concept of justice as discussed above ever became part of Indian law or philosophy prior to our contact with the West through the East India Company which in course of time was replaced in 1858 by the British Crown as one of the colonies of Great Britain is doubted. Well before that, however, the East India Company had become a Zamindar after winning the Battle of Plassey in 1765. For the effective administration of Zamindari, British Parliament enacted the Regulating Act, 1772 which among other reforms also provided for the establishment of a Supreme Court at Kolkata. Sir Elijah Impey was appointed the first Chief Justice of this Court on 18-10-1780. For the effective administration of justice in civil matters, the Chief Justice introduced the word “justice”, perhaps for the first time in this country in one of the clauses of the Civil Procedure Code which he prepared as the first Chief Justice of the Supreme Court at Calcutta. The Code which consisted of only 95 clauses introduced among other provisions, application of “justice, equity and good conscience” in matters which were not covered by the then existing law. Under the Regulations of 1772 prepared by Warren Hastings, the application of personal law of Hindus and Muslims was limited only to a few subjects. For other matters there was no guidance. In her book India in the Shadows of Empire, Mithi Mukherjee begins her enquiry on the primacy of justice in the Indian Constitution, from the establishment of the Supreme Court at Kolkata in 1774 and ends it on the commencement of the Constitution in 1950. In the author’s words the

book presents a genealogy of the democratic polity in India by exploring the ways in which the twin discourses of imperial justice as equity and imperial justice as liberty came to determine the origin, nature, and evolution of representation politics in colonial India.¹⁹

The author expresses it in different contexts. One, it was in the impeachment trial of Warren Hastings beginning 1788 in the House of Lords wherein Edmund Burke argued forcefully against the misdeeds of Warren Hastings in India as the Governor General. At the end of the trial in 1795 Hastings was acquitted of all the charges. The second moment of the origin of the discourse of justice was the establishment of the Supreme Court in 1774, which as we have already noted led to the making of the Civil Procedure Code by Chief Justice Impey. The third moment in the origin of the discourse of justice came in the immediate aftermath of the 1857 Revolt or War for Independence which replaced the occupation of the country from the East India Company to the British monarch. “This led the British Empire to invent the twin discourses of justice as equity and justice as liberty as the pillars of British Empire in India.”²⁰ In the author’s view the post 1857 India deployed justice as equity and justice as liberty which replaced the earlier dialectic of the colonial and the imperial.

The author’s engagement with justice followed by equity is so central to her work that she finds it reflected not only in the Preamble to the Constitution but also in the process to its entire making. That is why “JUSTICE social, economic and political” is the prime goal of securing to the citizens of India over and above Liberty, Equality and Fraternity. How far that goal has been realised is a different matter.²¹

While there may be disagreement with everything that the author has expressed in her book on different issues, there is agreement with her that the notion of justice and equity in society was received by India to a great extent during the British governance almost simultaneously when justice became part of an engagement in the West as an aspect of enlightenment for rearranging the Indian administration by the East India Company. It is not true that before the entry of British, people in this country could not distinguish good from bad. But it is doubtful whether Indians had developed any scientific concept of justice as the West had tried to do.

Perhaps reminded of Henry Maine’s classification of progressive and static societies that “the movement of the progressive societies has hitherto been a movement from status to contract,” Indians did not engage themselves in any concept of justice as the West had done, particularly since the times of enlightenment. The kind of enlightenment that started shaping towards the end of the seventeenth and the early part of the eighteenth century in the West that did not take place in other parts on the face of the earth. Consequently, the kind of innovations in different walks of human life which took birth and grew in the West could not be conceived of in the rest of the society. Therefore, in the rest of the world ideas such as justice, equity and good conscience did not have the opportunity to germinate and grow. While the West gave birth to different theories and innovations in all walks of life the rest of the world failed to match with the growth of new ideas in the West. Thus, in the later part of the eighteenth century and the early part of the nineteenth century Bentham propounded his utilitarian theory of the greatest happiness of the greatest number as a principle for a just society, which dominated in the eighteenth and the nineteenth centuries in its refined form from scholars such as John Stuart Mill and his followers. It also had close relationship with individualism which also flourished along with the greatest happiness of the greatest number. Some scholars such as Nozick, as already noted earlier, have relied on it even to challenge their contemporaries such as Rawls. Whatever justifications Nozick has in support of utilitarian theory of greatest happiness of the greatest number, Rawls’ theory is superior because of its focus on everyone in the society as also reflected in the Preamble to the Constitution of India as well as its operative provisions throughout. It is hoped that “we, the people of india” will live by the ideals in the Preamble of the Constitution as well as each and every provision of it.