PAPER ON THE TOPIC THE PHILOSOPHY OF DISTRUBUTIVE JUSTICE AND ITS RELEVANCE UNDER INDIAN CONSTITUTION The jurisprudence of distributive justice, according to juristic cynics, is an essay in illusion.
The basic social system is built on gross inequalities and the power to lobby and mould State policy, even judicial policy, is heavily in the hands of the proprietariat. Being social realists and meliorists we have to work with the materials that we have and try to read the constitutional provisions in such a manner that the human essence of distributive justice is won by dynamic interpretation and socialist understanding.The Indian Constitution visualizes an affirmative State action for bringing about a new social order based on justice, social, economic and political (Art. 38).
The Directive Principles of State Policy contain the directions of change towards such a new social order. The researcher has examined various theories of justice and has examine how the John Rawl’s theory of justice which means that justice is fairness is the most apt for the Indian situation. Even in the Constitution we find different strategies of justice. Keywords: Justice, Distributive Justice, Constitution. INTRODUCTIONEver since the birth of society, justice has been one of the most important quests of human endeavor. Justice means giving one what is due to him. As a principle of law, justice delimits and harmonises the conflicting desires, claims and interests in the social life of the people. In the modern society if we take the view that all its problem of distribution then the recourse is left open to distributive justice and nothing else.
Distributive justice embraces the whole economic dimension of social justice, the entire question of distribution of goods and services within the society.It demands equality in the distribution or allotment of advantages or burdens. The aim of distributive justice is to strike a balance in the socio-economic structure of the society and bring equipoise between the conflicting interests of individual citizens. It is submitted that the problem of distributive justice in one sense is more a matter of procedural fairness to individuals than of substantive rightness or wrongness of the rules themselves. More specifically, it would seem that even bad rules can be applied justly and good rules in an unjust way, but it does not mean that it is not the concern of the substantive law.Much will depend upon the structure of the society. To establish distributive justice we must create a public system of rules by reference to which the conflicting claims which inevitably arise can be authoritatively determined. Distributive justice essentially is the function of a just society.
The problems of Indian society are so complex, perplex and varied that a single formula for distributive justice cannot be found. The Constitution of India talks of justice in the Preamble as well as in Article 38 of the Constitution which is a directive principle of state policy.The Constitution talks not of justice but of social, economic and political justice. It does not merely envisage a system of corrective justice in which rights and obligations arising out of the present social structure are enforced.
It clearly saw that the existing structure was unjust and needed to be changed. This is what we call distributive justice. PHILOSOPHY OF JUSTICE AND DISTRIBUTIVE JUSTICE Ever since men have begun to reflect upon their relations with each other and upon the vicissitudes of human lot, they have been preoccupied with the meaning of justice.
Justice shares with natural law an institutional immortality which presents a constant paradox: it is so ancient that everything has been said about it, and so modern that it constitutes a continuous and inescapable problem in the ever-changing context of a contemporary society. Justice, as Aristotle said, “is the bond of men in society. ” and “States without justice” are as St. Augustine said, “robber-bands. ” Fiat justitia ruat coelum let heavens fall, justice had to be done became the abstraction of many religious, political, moral and legal philosophers of all ages.The power of justice is so great that it strengthens and excites a person fighting for just cause. All wars have been fought by all parties in the name of justice, and same is true of the political conflict between social classes. On the other hand, the very fact of this almost ubiquitous applicability of the principle of justice prompts the suspicion that something may be wrong with an idea that can be invoked for any cause.
Social groupings of today are dynamic, not static, and they do not find the ideal equipoise in a condition of mere imperturbability.Justice is considered to be the primary goal of a welfare state whose very existence in turn rests on the parameters of justice. The greatest contrast, however, between ancient and modern thinking about the social harmony of justice is in the changed conception of individual personality in relation of law. I. The problem of Justice The importance of the subject of justice and the frequency of its use would naturally lead one to believe that there is an accepted definition of justice or, if not, at least a workable definition of justice is capable of being carved out.But defining justice is not as easy as it appears to be. There are difficulties inherent in the concept of justice and it is because of this reason that it is wholly indeterminate and belies all attempts to define it.
Hens Kelsen perturbedly remarked: No other question has been discussed so passionately; no other question has caused so much precious blood and so many bitter tears to be shed; no other question has been the object of so much intensive thinking by the most illustrious thinkers from Plato to Kant; and yet, this question is today as unanswered as it ever was.It seems that it is one of those questions to which the resigned wisdom applies that man cannot find a definitive answer, but can only try to improve the question. What is ‘just’ is again a question which largely remains unanswered and mostly hinges on the hunch of the bench as it nowhere informs us how to recognise or distinguish a just man from the other. The term justice has two aspects, namely, abstract justice and concrete justice.
In the abstract sense ‘justice’ means a course of conduct both legel and moral, which tends to augment human ‘welfare’.Those human actions which do not intersect mankind have no significance either for ethics or for jurisprudence. The answer to the question as to what actions affect human welfare varies from age to age or generation t generation depending on divergent conceptions of human welfare prevailing in a given society during a given period of time. It is through the abstract notion of justice that its true significance in its practical application can be ascertained and appreciated. In the concrete sense, justice plays a positive role in regulating the procedural safeguards afforded to litigants in the courts of law. II.Meaning of Justice and Distributive Justice Grotius and Leibniz believed in the concept of society as the co-operation of beings endowed with reason defined justice as custodia societatis Justum est quod societatum ratione utentium perfecit. This means justice puts an end to the conflict between the individual and the universal, the microcosm and the macrocosm, and brings about the synthesis between the whole and the parts.
Justice thus seems to entail the conflict of competing claims and not infrequently the clash of powerful social interests with the right of individuals ensnared from time to time in the mechanism of raison d’ Etat.That is why justice is by its very essence a justitia communis, which reconciles in itself and transcends the commutative, distributive, and universal principles. To Plato, justice is a virtue of that psyche or soul which is the quint-essential personality of human creature. In the Republic the quest is for justice as the complete expression of the soul’s excellences and, therefore, of the whole moral man. Plato tells us that the four supreme moral qualities both in state and the individual are wisdom, courage, temperance or moderation and justice; and the greatest of these, the indispensable, is justice.Aristotle said that justice implies a certain degree of equality; this equality might, however, be either arithmetical or geometrical, the first based on identity and the second on proportionality and equivalence. Arithmetical equality leads to commutative justice, geometrical equality to distributive justice. The second is the business of the legislator, while the first is the business of the judge.
Political rights and goods should be apportioned according to distributive justice, punishments should be imposed and damages paid according to commutative justice.The theory of justice thus involves an examination of the body of rights and duties accepted in a society in the light of the formal principles of equality, the aim being to rid it of arbitrary elements; that is discrimination not grounded on relevant differences. According to John Stuart Mill, a society which is governed by the legal philosophy of distributive justice is one which: Should treat all equally well who have deserved equally well of it, that is, who have deserved equally well absolutely.
This is the highest abstract standard of social and distributive justice; towards which all institutions and the efforts of all virtuous citizens should be made in the utmost degree to converge. It is thus universally considered just that each person should obtain that (whether good or evil) which he deserves; and unjust that he should obtain a good, or be made to undergo an evil, which he does not deserve. This is perhaps the clearest and most emphatic form in which the idea of justice is conceived by the general mind. As it involves the idea of desert the question arises of what constitutes desert.The characteristic of distributive justice is the expansion of the spirit of collectivism, the promotion of the feeling of co-operation and the exercise by society of its collective powers in support of the legitimate claims of individual life. Its formula is “to every man according to his needs” rather than “to every man according to his deserts. ” The distributive justice considers how it can secure too each individual a standard of living and such a share in the values of civilization as shall make possible a full existence of human life.In all these ways, the notion of justice according to law is gradually pervaded by the notion of justice and the distributive justice in the law.
III. Concept of Distributive Justice Modern social and economic developments have made it clear that individual justice, justice between the wrongdoer and the victim is only a partial and incomplete form of justice and it is in the notion of distributive justice, i. e. , rendering to each man his due, the essence of justice lies.The development of the welfare state is generally thought of as an application of the notion of distributive justice. Moreover, the cry for equality of opportunity for the underprivileged and weaker sections of the society is being increasingly heard these days and this demonstrates the importance of the notion of distributive justice in modern consciousness. Distributive justice embraces “the whole economic dimension of social justice, the entire question of proper distribution of goods and services within the society”.It demands equality in the distribution or allotment of advantages or burdens.
The advantages or burdens which are to be distributed are of numerous kinds such as wages, taxes, property, punishments, individual or social performances or rights and duties as allocated and apportioned by the legal system. Distributive justice aims to strike a balance in the socio- economic structure of the society to bring equipoise between the conflicting desires, interests and claims of the individual citizens. Justice P.
N.Bhagwati succinctly explains distributive justice as: And when I talk of justice, I mean not commutative justice but distributive justice, justice in depth, justice which penetrates and destroys inequalities of race, sex, and wealth, justice which is not confined to a fortunate few, but takes within its sweep the entire people of the country, justice which ensures equitable distribution of the social, material and political resources of the community. This is the kind of justice which we in India are trying to realize through the process of law and our substantive law is being geared to this task.
Distributive justice includes the quality of being just and fair to all the individuals in the society or group. It seeks to give everyone what is due to him. What is due cannot be ascertained by absolute standards because the standards change with changes in the socio-economic conditions of the society. It does not mean only a just distribution of the material goods of life, but also means and includes the reasonable requirements of human body, mind and spirit. It takes in both the means and the end, the process as well as the product.It seeks to meet out justice through just means, unjust means may satisfy some, but cause injustice to others. Distributive justice means justice to all and not to a few or a favored class. It does not introduce class conflicts, but seeks to improve and harmonise the society with a view to avoid the socio- economic imbalances.
The readjustment of social claims may involve a transfer of resources from one section of the society to another, but the transfer is only an equitable reallocation of the resources and not a destruction of the structure itself.Distributive justice demands preferential treatment of the weaker sections of the society, but that is only to correct the imbalances existing in the society and not to cause unnecessary harassment or injustice to the advanced sections thereof. Thus, it seeks to remove the imbalances in the social, economic and political life of the people. There cannot be distributive justice unless the society progresses in all the directions.
In short distributive justice helps to bring about a just society.The right to distributive justice may be defined as the right of the weak, aged, destitute, poor, women, children, and other underprivileged and downtrodden segments of the society to the protection of the state against the ruthless competition of life. It seeks to give adventitious aids to the underprivileged, so that they may have an equal opportunity to compete boldly with the more advanced sections of the society. It is a bundle of rights; in one sense it is carved out of other rights; in another sense, it is a preserver of other rights.
It is the balancing wheel between the haves and have- nots. Its aim is not to pull down the advanced sections of the society, but only to uplift the backwards and the underprivileged sections thereof without unduly and unreasonably effecting and undermining the interests of the former. It only prevents unjust enrichment at the expense of the underprivileged and ensures a balanced and harmonious development of the society.
It is this approach and understanding of the concept of distributive justice which permeates the Indian Constitution and is adopted here for the purposes of this work.This takes us to the study of principles of distributive justice which serve as the criteria for evaluating the propriety or justice of distribution. IV. Theories of justice The theories which take in their sweep the above mentioned principles of distributive justice are: – Utilitarian, and – Contractarian. The former represents an established tradition of ethical thought, though subject to continuing refinements and restatements. The later owes much to John Rawls, who, in recent times has most illuminatingly used the idea of primordial social contract to arrive at the basic principles of justice.It is often reiterated that the theories of justice must take into consideration at least three important facets of distributive process: a) The ‘total amount of goods (or utility) to the distributed’; b) The ‘pattern of distribution arrived at’; and c) The distributional procedure described aptly as the ‘principle of selection by means of which the distribution is arrived at’. An attempt is made here to examine the different facets of these theories and to ascertain the extent to which they satisfy the demands of distributive justice.
Utilitarian Theory of Justice Utilitarianism is essentially an aggressive theory. Its premise is the greatest good of the greatest number. Justice in its essence is distributive in character. The three principles of justice enumerated above demand that a person’s share of good should be proportional to some quality he possesses. It is, therefore, unlikely that utilitarian theory will be able to accommodate principles whose form contrasts directly with that of the greatest happiness principle.It is submitted that why someone committed to aggregating good should care how that good is distributed among different people.
The main weakness of the utilitarian theory from the perspectives of distributive justice is that it accords a paramount role to the quantity of good or welfare distribution. This has been pointed out by Brandit in the following words: “If quantity of welfare can be raised by a grossly unequal distribution- for instance, as in an efficient system of slavery- then we have to favour inequality.Equality, on utilitarian scheme, is a servant of quantity of welfare. ” John Rawls takes this insight as his starting point in developing a contractual theory of justice which is intended to remedy the deficiencies of utilitarianism. It may thus seem that the utilitarian theory does not bring home the expectations of society because our needs and desires differ qualitatively and are mutually incommensurable.Man harbours the most varied needs, for example the need for food, rest and sleep, occupation, sexual activity, culture and knowledge, artistic experience and recreation, love and respect, power and social esteem, etc. If all the needs of an individual cannot be satisfied, and if he is faced with a choice, for example, between listening to symphony and eating a good dinner, this choice cannot be described as a rational alternative between two measurable quantities of pleasure. Contractarian Theory of JusticeAccording to John Rawls: “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override”.
Rawls understands society as a co-operative venture for mutual advantage. In a co-operative society, there is a social union and a shared end, conceived not as a substantive goal, but as a plan of conduct which will assure that the endowments of each will be complementary to the good of all. The actual differences between individuals in terms of natural abilities, social advantages, wealth, etc. are viewed as a cause of social discord; the differences tempt men to pursue their own advantage, what all have in common is a moral personality and this must be the basis of justice. The utilitarian theory fails to accommodate this very conception of justice. To replace it, Rawls has offered the following principles of justice: All social primary goods- liberty and opportunity, income and wealth, and the bases of self- respect are to be distributed equally unless an unequal distribution of any, or all, of these goods is to the advantage of the least favoured.
V. The Constitutional Scheme of Distributive Justice Indian Constitution opens with the preamble which states in unequivocal terms that the people of India have solemnly resolved to secure to all its citizens: Justice – social, economic and political, 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.The Objectives Resolution from which this phrase has been carved out states: This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution: a) Wherein shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and b) Wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes. Referring to socio- economic justice, Dr.
S.Radhakrishnan said that it intended to effect a smooth and rapid transition from a state of serfdom to one of freedom. Then emphasizing the need for such a change, he said, “it is therefore necessary that we must remake the material conditions”. The phrases thus used by the Founding Fathers clearly indicate that socio-economic justice in its realization is distributive in character. It contemplates a change in social structure in order to effect a transition from serfdom to freedom and attempts to remake the material conditions of the society.
Granville Austin has also observed: “The Constitution was to foster the achievement of many goals. Transcendent among them was that of social revolution. Through this revolution would be fulfilled the basic eeds of the common man, and, it was hoped, this revolution would bring about fundamental changes in the structure of the Indian society”. Thus, the scheme of distributive justice as visualized in the Objectives resolution was incorporated in the preamble, the fundamental rights and the directive principles of state policy and other provisions of the Constitution. The gist of the scheme may be stated thus: Constitution ordains the state 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 national life. For the establishment of social order, the people of India have been given the following fundamental rights: a) Right to equality; ) Right to six freedoms- freedom of speech and expression; to assemble peaceably and without arms; to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India; to practice any profession or to carry on any occupation, trade or business; c) Right to life and personal liberty; d) Right against exploitation; e) Right to freedom of religion; f) Cultural and educational rights; g) Right to constitutional remedies. In addition to these, the directive principles of state policy also express in categorical terms the ideals of distributive justice.
Article 38 requires the state inter-alia, to minimize the inequalities in income and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals, but also amongst groups of people residing in different areas or engaged in different vocations.Article 39 requires the state to make available to all the citizens adequate means of livelihood; to distribute ownership and control of material resources so as to sub serve the common good; to operate the economic system in such a way that it does not result in concentration of wealth and means of production to the common detriment; that there is equal pay for equal work; to protect the health and strength of workers men and women and the tender age of children against abuse and that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength, that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.The state is also required to provide equal justice through the mechanism of free legal aid in order to ensure that opportunities for securing justice are not denied to any citizens by reason of economic or other disabilities; to provide right to work, to education and public assistance in cases of unemployment, old age, sickness and disablement and other cases of undeserved want; to make provision for securing just and humane conditions of work and for maternity relief, to provide work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities; to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in industry; to secure for all the citizens a uniform civil code throughout the country, to provide free and compulsory education for children below the age of 14 years; to promote the educational and economic interests of the Scheduled castes and Scheduled Tribes and other weaker sections; to raise the level of nutrition and standard of living and to improve the public health. Thus, it can be said that the Constitution of India has twin objectives: First, to usher in a new social order ensuring distributive justice to all the citizens and; second, to protect the liberties of the people from the onslaughts of autocratic and arbitrary power. These two ideas run like a golden fabric through the entire scheme of the Constitution.
Indeed, the substantive and the procedural provisions of the Constitution harmonizing the said two concepts give a new philosophy and sustenance to our socialist, democratic republic based on rule of law. But to our dismay, many of the legislative actions destined at distributive justice pursuance to the implementation of the directive principles of state policy were struck down by the courts from time to time. The directives have been relegated to the position of inferiority. The bewildering judgments of the Supreme Court right from the days of Champakam Dorairajan,Quaresh, Kerela Education Bill, including the Golaknath, the Bank Nationalisation, the Privy Purse and the Minerva Mills have shattered all the hopes of the Government to implement the directive principles of state policy. These ecisions crippled the state machinery and paralysed the movement of the nation towards an equalitarian social order. These decisions represent a saga of judicial misunderstanding of the avowed ideals of the Constitution. This approach is inherently inconsistent with the spirit of the Constitution ignoring the realities of the Indian societal structure. The poverty of the Indian masses cannot be mitigated by eulogizing the fundamental liberties and mellowing down the positive efforts of state destined at distributive justice.
The Constitutional goals of distributive justice can be achieved only if the courts adopt a pragmatic and sociological approach without making such ado about the rights in interpreting socio-economic legislations.It is submitted that both fundamental rights and directive principles of state policy aim at establishing a just social order based on the philosophy of distributive justice ensuring dignity to the individual not only to the few privileged persons, but to the entire masses of the country including the have nots and the handicapped, the lowliest and the lost. Both these represent a broad spectrum of human rights. The concept of distributive justice as embodied in the Constitution is a living concept of revolutionary import. It gives sustenance to the rule of law and meaning and significance to the ideals of a welfare state. The freedoms guaranteed under the Constitution are not an end in itself, but the means to achieve distributive justice.Our Constitution is the unique document for the upliftment of the down-trodden and weaker sections of the society. The greatest need of the hour, therefore, in our society in social integration of the weaker and oppressed sections of the people with the rest of the society.
This demonstrates that our Constitution does not leave the individual at the mercy of the law of nature representative of competitive modal of society. It assigns a prominent role to and imposes heavy responsibilities upon the state to assure a dignified life to each individual irrespective of what he deserves on meritarian consideration. Yet, in a way it incorporates the need-based principle of justice.It means securing to each and every human being the basic necessities of life like food, clothing, housing, medicine, education and the like etc. This is the voice of distributive justice and the very Dharma of the Indian Constitution. ——————————————– [ 1 ].
Sudesh Kumar Sharma, Distributive justice under Indian Constitution, Deep & Deep Publications, New Delhi, 1989 [ 2 ]. http://www. spotlaw. in/text/910011996/9100119961206001.
htm (accessed on 9 march 2013) [ 3 ]. http://www. spotlaw. in/text/910011996/9100119961206001. htm (accessed on 9 march 2013) [ 4 ].
Sudesh Kumar Sharma, Distributive justice under Indian Constitution, Deep & Deep Publications, New Delhi, 1989 [ 5 ]. VII Encyclopaedia of Social Sciences, 512 (1953) [ 6 ].Quoted by Justice George Vadakkel in his paper entitled “Law, lawyers and political development”, Vol. VIII (4), Journal of Bar Council of India, 629 at 635 (1981).
[ 7 ]. Address by Justice P. N Bhagwati at the opening session of the Sixth Commonwealth Law Conference on 18th August, 1980 in The challenge of social justice, 20-21 (1985).
[ 8 ]. John Rawls, A Theory of Justice (1976 Reprint) [ 9 ]. R. B.
Brandit, Ethical Theory, 415 (1959) [ 10 ]. John Rawls, “Distributive Jusitce” in P. Laslett and W. G. Runciman (ed. ), Philosophy, Politics and Society, 3rd ser.
50 (1967) [ 11 ]. I C A. D 59 [ 12 ].
II C A. D. 269 [ 13 ]. II C A. D. 273 [ 14 ].Granville Austin, The Indian Constitution: Cornerstone of a Nation, introduction (1979 Reprint) [ 15 ]. Art.
38(1) [ 16 ]. Art. 14 to 18 [ 17 ]. Art. 19(1)(a), (b), (c), (d), (e), (g). [ 18 ]. Art. 20 to 22 [ 19 ].
Art. 23 and 24 [ 20 ]. Art.
25 to 28 [ 21 ]. Art. 29 to 30 [ 22 ]. Art. 32 [ 23 ]. Art. 38(2) [ 24 ].
Art. 39(a), (b), (c), (d), (e) and (f). [ 25 ]. Art.
39-A [ 26 ]. Art. 42 [ 27 ]. Art. 43 [ 28 ]. Art. 43 A [ 29 ]. Art.
44 [ 30 ]. Art. 45 [ 31 ]. Art. 46 [ 32 ]. Art.
47 [ 33 ]. 1951 SCR 525 [ 34 ]. AIR 1958 SC 731 [ 35 ]. AIR 1958 SC 956 [ 36 ]. AIR 1967 SC 1643 [ 37 ].
AIR 1970 SC 607 [ 38 ]. (1971) 1 SCJ 295 [ 39 ]. (1980) 3 SCC 625