The Concept Of Justice

The Word

The concept of justice is as old as civilization and society. There can’t be existence of lawful society without the presence of justice. One of the most important pillars of any nation is justice. A lawful society can’t exist without the presence of justice. It is one of the most important pillars behind the growth of any nation.

Also justice means, ‘Justice is the correct application of a law, as opposed to arbitrariness’. By correct application of law we mean to say “proper implementation of law”. Justice can be attained in the society only by correct interpretation and implementation of Laws.

The concept of Justice

Justice means to give each and every person what they deserve. Justice and fairness are closely associated terms which are sometimes used in place of each other. Justice means the standard of rightfulness, by standard of rightfulness one means to say that the minimum threshold should be applicable of what will amount to right or wrong.

There have been historical evidences to prove that a civilized society can’t exist without existence of Justice in its administration system. The civilizations which lacked the presence of justifiable system vanished with time.

With the advent of time and progress in the society the need for inclusion of justice in the administrative system has increased due to which approach of those in power has become more cautious and systematic.

Justice is one of the most important moral and political concepts with no agreed definition. The claim for justice gains meaning in specific circumstances and cultural contexts. Justice is an evolutionary concept. It’s interesting to know the change in the meaning of word justice from ancient Greek civilization to modern society.

• Plato

For Plato, justice lies in virtuous action. Justice occurred when each individual in a society acted in accordance to the virtue or skill they possessed (divided into three groups-the philosophers, the warriors and the artisans). He also emphasized on the bodiment of the principles of justice on the individual level. “Justice in the life and conduct of the state is possible only as it resides in the hearts and souls of the citizens.” i.e. When the three elements of an individual- reason, spirit and appetite performed their own functions without interference into the other elements.

• Aristotle

On the other hand, Aristotle viewed justice as fairness among individuals and developed the ideas of distributive justice, fairness in distribution of goods and opportunities to individuals and in case of a fault in it, corrective justice comes into play. Reflections of Aristotle’s corrective justice can be found in the statement (pt3) above- humans strive to eliminate injustices.

• John Rawls

John Rawls in his book “A Theory of Justice” emphasizes justice in “the first virtue of social intuition as truth is of system of thought”. He relates justice to the social institutions which form the basis and manipulate the thoughts and acts of human beings. In turn to ensure just and fair social institutions, the establishment of such institutions must be under the “veil of ignorance” by social contract, i.e. all individuals to make collective decisions regarding society being unaware of their natural abilities, social and economic standing.

For example– consider two alternative options and B of a city having five inhabitants and total resources as 100. The total resources are distributed as follows:

A- 10,10,10,10,60

B- 20,20,20,20,20

The direct consequence of the veil would be for all to choose the alternative that would benefit the maximum and would be closest to the “just and moral” action. Uniform ideas of what is fair, what the are the rights to be guaranteed, what opportunities should be given, what decisions must further be made, prevail in society. The veil of ignorance removes personal biases, conduces rational decisions and aligns the self interest of each individual with the entire group, as he does not know his identity thus ensuring a uniform idea of all. A uniform idea of just action.

• Prof. Amartya Sen

The modern discourse about justice has travelled far away from this idea. Rigid insistence that there could only be one precise combination of principles that could serve as the basis of ideal social justice has been greatly questioned. Prof. Amartya Sen perhaps best elaborates this stand via his story of “Three Children and a Flute”.

“Anne, Bob and Carla contesting for the ownership and possession of a flute. Anne being the only one knowing how to play a flute claims it for herself. Bob on the other hand counters with claims of poverty and him being unable to buy a flute. Carla claims to have actually made the flute by her own skill and claims she is entitled to own it.”

To a perfectly neutral individual, all three are good in their claims, their claims being backed by different perspective theories of justice. Anne should have the rightful possession according to the utalitarian view, and similarly Bob according to the egalitarian and Carla according to the liberatians. One of my colleagues also offered a more unique and elaborate solution- Carla should have ownership, but Anne should be allowed to play the flute for money which should in turn be given to Bob. On more critical view, is Carla being denied of her possession, Anne being deprived of the money she had earned by her skill, and Bob gaining money in exchange of no contribution fair? So what exactly is just?

Referencing back to the initial position Justice still remains to be an unanswered question with no definite explanation, perhaps best said by Prof. Sen himself “there may not indeed exist any identifiable perfectly just social arrangement on which impartial agreement would emerge” and the choosing of any one alternative can appear to be just but is instead arbitrary.

Types of Justice:

• Social Justice:

The state is restricted from discriminating against citizens based on their birth, caste, race, creed, sex, faith, title or position, or any combination of these factors. Apartheid and untouchability are antithetical to the spirit of social justice. The lack of favored social classes is a crucial feature of social justice.

Social justice means greater good for larger number of people and unequalls should be treated equally. The apex court in the Kesavananda Bharati case held that social justice is part of Basic structure of the Indian constitution.

Several articles of the Indian Constitution are aimed at ensuring social, economic, and political fairness. Untouchability has been declared illegal under the law. Every citizen has the right to obtain any public venue, an institution of religion, or place of amusement on an equal basis.

According to social democrats and modern liberal philosophers, social justice endeavors to reconstruct the social order in line with moral ideals. Attempts to correct social injustice must be made constantly. It also stands for a morally good and justifiable system of societal reward and duty distribution free of prejudice or injustice towards any individual or group of individuals.

In the Case of S.R Bommai v. Union of India, the apex court held that social justice and judicial review are two basic features of the Indian constitution.

• Economic Justice

Economic Justice and Social Justice are interlinked since the economic system is always a part of the social system. Individual economic rights and possibilities are always a part of the larger social structure. Economic Justice requires that all citizens have enough chances to make a living and get fair pay, allowing them to meet their fundamental requirements and aiding their development.

The government should provide them with financial stability during illness, old age, and incapacity. No individual, group, or class should be able to exploit others or be exploited. The distribution of money and resources should be fair and equitable among all individuals. Everybody must share the benefits of wealth.

There are numerous different perspectives on what economic justice entails. Liberals believe that open competition is fair and that private property is valuable. Socialists want to take total control of society and the whole financial system. They reject the ownership of personal property. Whatever philosophy or approach is in place, one thing is sure: all citizens must have access to fundamental essentials of existence.

• Political Justice

Political Justice entails providing all citizens with equal political rights and participating in the country’s government. Citizens should vote without fear of discrimination based on religion, color, caste, creed, sex, birthplace, or social position. * Each person should have the same opportunity to vote and run for office.

The drafting of just laws and then doing justice under the rules are two aspects of legal justice. The rulers’ will should not be forced on the ruling while creating legislation. Public opinion and public needs should guide legislation. Social values, morals, customs, and the concept of right and wrong must all be kept in mind at all times.

• Legal Justice

The term legal justice refers to the rule of law, not the rule of any individual. It conveys that all persons are equal before the law and that the law applies equally to all. It ensures that the law protects everyone. The law makes no distinction between the wealthy and the needy. The objective and proper administration of justice by courts of law is a necessary component of legal justice.

When social and economic disparities exist, political and equitable justice is constantly denied. An oppressed and impoverished individual can practically not engage in the political process or seek legal protection from the courts.

Relationship between Social, Economic and Political Justice

All three types of justice are closely related to each other. One can’t be obtained unless and until the other two are present.

Social justice can be obtained only when economic and political justice is present. Indian Constitution under part III enforces all three types of justice by making provisions relating to equality under article 14 and 15. Also in 2019, 103^rd constitutional amendment was done to ensure economic justice for everyone. The jurisprudence behind this amendment was implementation of economic justice.

Constitution of India and theory of justice:

India’s survival as a nation is contingent on how we, the people, carry out the provisions of our Constitution. Because the law of the Constitution is not only for those who governor for the intellectual and scholarly-but also for the majority of the people, especially for the common man, for whose benefit and safeguard the document of governance has been written and enacted, all citizens should take a closer look at it and understand its broader features. The public is impacted by the opinions and statements of the country’s highest court justices. Under a written constitution, the judiciary’s power should never be underestimated.

The Indian Constitution is based on the distributive justice idea. According to distributive justice, “the method established by legislation must not only have an appearance of attribution, but it must have meaning according to evolving societal ideals and human fairness in actuality and practice.” Based on social needs and societal context, our Constitution offers Justice, i.e., Social Justice, Legal Justice, and Economic justice.

Article 21 ensures that the state will not deprive anybody of their life or personal liberty unless they follow the legal procedure. This article’s proposed process must be equitable, fair, and reasonable. The legal method must resemble these attributes in appearance, but it must also have actuality and practice according to evolving societal ideals and human fairness.

Is the concept of justice considered a valid topic of logical inquiry, deserving of jurisprudential philosophers and social scientists’ sustained attention?

According to Aristotle, distributive justice is that each community member should be given an equal opportunity. Inherent potentials. In the distribution of such material resources, all people should have equal consideration and chances.

The Indian Constitution is founded on the idea of equality and is based on the rule of law. A similar theory was articulated in Vishakha v. State of Rajasthan, which stated that no adequate philosophy of justice could be developed without finding a place for equality and freedom in the system of societal structure. The Supreme Court ruled that sexual harassment in the workplace is illegal. The only way to free women from harassment and exploitation is to empower them to develop and flourish in a comfortable environment.

The concept of justice draws our attention to the fairness and reasonableness of the norms, principles, and standards of the normative framework. Justice’s goal is to satisfy people’s legitimate wants and claims while also encouraging creative work and the level of social cohesiveness required to sustain a civilized society. The mandate of a ”reasonable opportunity to be heard” includes the Principles of Natural Justice, a broader and more flexible notion covering a variety of fair hearing standards. The courts can overturn disciplinary procedures if there is a violation of natural justice principles, such as bias or procedural flaws.

Article 147 of Indian Constitution

When the constitution-making was done in the earlier stages, no attention was paid on the interpretational provisions. Neither the drafting committee of 1948 had any special provisions or the draft constitution of constitutional adviser. In article 147 has any specific provisions regarding the interpretation of the constitution.

During the discussions of the constituent assembly in 1949, Dr. Tek Chand moved an amendment. Along with this, he introduced a new draft in the article 122A with regards to the interpretation of the constitution as given below

‘In this chapter, there have been references made regarding the substantial questions of law and the interpretation of the constitution. Also, this should be constructed as references are included in any substantial questions of law regarding the interpretation by the government of India.’

After the discussion, the motion was accepted by the constituent assembly. Thus, the new article 122A was also added in the constitution.

After nearly four months in October 1949, the interpretational provision was again introduced into the discussion. It stated that in article 122A, after the figures and words, chapter 5 of part 4 of the constitution has to be inserted.

This amendment that was moved by Krishnamachari was adopted. Thus, it was drafted in article 122A as amended and added into the constitution. Also, after this, the draft constitution was further revised by the drafting committee. So, the article was renumbered to 147 from article 122A of the constitution in its current form.

The marginal heading of article 147 is being considered somewhat misleading. Furthermore, the article does not lay down any rules, principles, or guidelines for the interpretation of the constitution with respect to the Supreme court or otherwise.

The limited purpose that article 147 serves is to clarify the reference regarding any substantial question of law. It covers the interpretation of the constitution along with that of the government of India act, 1935.

There are also Indian independence act of 1947 and many order that were made thereafter. However, article 395 has repealed the Indian independence act 1947 and the government of India act 1935.

The interpretation of article 147 in chapter 4 and 5 states about any substantial question of law. Also, the interpretation of constitution shall is built including the references for any substantial question of law. This is also as per the interpretation of the government of India act, 1935.

Also, it includes any supplementing that act or enactment of the amendment thereafter. Any order in the council or any order made after that, or the Indian independence act of 1947 or any order made under chapter 5 are under the comptroller and auditor general of India.

The marginal heading of article 147 is somewhat considered as misleading. Also, the article does not lay down any rules, principles, or guidelines regarding the interpretation of the constitution by the supreme court. However, article 395 has repealed the Indian Independence act 1947 and the government of India act 1935.