A Reflection on Indian Constitution and State affairs: Through Eyes of Western

Philosophy of Distributive Justice

The very basis of political reservation is distributive justice. Bringing equality is very much

the spirit of the Indian Constitution. The notions of justice are two, one corrective justice

which is addressed by the judiciary while the other one is distributive justice in which

executive has an important role to play. The article focuses on the distributive notion of

justice. The author has entered into the fields of proportional equality and the provisions of

the constitution to achieve this equality through the mechanism of differential treatment.

Objective behind writing this paper is to assess and evaluate the executive's approach towards

the implementation of socio-economic laws, plans and programmes and the role of judiciary

in moulding the present legal system to suit the needs of the weaker sections of society. The

author strongly feels, there is much to be done in the present scheme of state affairs, to call

distributive justice a fair play in India. Although India has made a fair improvement from the

time of its independence, but there exists a number of lacunae in the system. The Constitution

inscribes justice as the first promise of the republic which means that state power will execute

the pledge of justice. The main question: how should we divide up the goods? (“goods”

include wealth, income, opportunities, liberties (and even) rights, happiness). Some historical

approaches to justice have already been covered (Plato, Hume, Mill) but in the present paper

the author focuses his research on two influential contemporary writers, Nozick and Rawls,

and some important objections. Nozick's account on his "entitlement theory of justice". While

Rawl's theory "Veil of Ignorance" is extensively dealt in the article. His theory “ensures that

no one is advantaged or disadvantaged in the choice of principles by the outcome of natural

chance or the contingency of social circumstances. Rawls claims that (i) this initial situation

is fair; and (ii) since it is fair, the chosen principles will be fair. The two philosophers account

of distributive justice is contextualized in the background of Indian Constitution and state's

affairs.

Research questions:-

1) Does the Indian Constitution embeds the ideas of western contemporary philosophy

of justice?

2) Is the state affairs in consonance with the spirit of the Constitution?

3) Why is there a huge divide between the have's and have not's even though the

Constitution provides for equality for its citizens.

Keywords: Justice, Nozick, Rawls, Constitution, Lacunae, Reservation, State affairs

References:

Seervai H. M., Constitution Law of India, 3rd Edn. Vol. I, p.382.

Rawls, J. A. (1971) A Theory of Justice. Cambridge, MA: Harvard University Press

Introduction

Justice is not a merely right, but a very much determination and aptly also adjudication of

disputes and enforcement of Law. But is so comprehensive in its meaning and import that it

takes with in its ambit: three paradigms: the whole of political, social, juristic and moral

idealism. It is so, because Justice has reference to the whole of human existence, which we is

to be realized by our own thought, will and action. The mystery of Justice cannot be

unraveled by way of human reasoning, logic or language for that matter completely. It has

greater appeal to human soul. Justice as reality is only fully reflected in our conscience and

felt through our intuition.

Philosophers see in the concept of justice their own ideal. To Plato, “ Justice is realization of

Good which can be achieved in society by doing one’s own duty according to one’s station in

life otherwise, ” Justice achieves good only and only by way of retribution.

While if we see, Aristotle, Justice in its general meaning is righteousness and also in its

particular meaning it means proper or equitable distribution of the goods of existence,

correction of wrongs and exchange of goods. Therefore it has elements of distributive,

corrective and commutative functions.

Understanding Justice

When we discuss of justice as a virtue, we usually refer to a trait of individuals, and even if

we conceive the justice of individuals as having some reference to social justice. But Rawls

and others regard justice as he first virtue of social institutions (1971, p. 3), so justice as a

virtue is actually ambiguous as between individual and social applications. This essay will

reflect and explore that ambiguity, though the principal focus will understandably be on the

justice of individuals.1

The word justice comes from its Latin root ‘Jus’ meaning ‘right’. It has its literal meaning as

‘binding’ or fitting or tying together of things and qualities harmoniously in human life. Thus

Justice becomes a means of adjustment and a measurement. 2The idol of Justice blindfolded

with balance in hand gives the expression of balancing, weighing and impartial judging

1 Slote, Michael, "Justice as a Virtue", The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2010/entries/justice-virtue/>.

2 Ibid.

which applies to disputes and conflicts. For this purpose justice becomes the referee to give

decision of victory or defeat to parties. It seems that Justice has more utility for a conflict

situation. It balances principles like liberty, equality etc also.3 Speculation about justice grew

early in western materialistic society which from the very beginning had political orientation

of western society in Greece which had to deal with conflicts. In contrast to this in Indian

culture there had been no loss of faith between religious authority and political authority.

Indian cultural drive from the very beginning is more towards integration and less towards

deciding the conflicts between individual, state and society interne. Law as dharma was both

a verdict and a faith, political trust, the commandment of Law as well as justice.4

Distributive Justice in the Context of Indian Constitution

Though it is difficult to know the nature and content of justice yet the idea of justice has been

effective in the course of centuries in performing the function of excluding arbitrariness, in

providing rational method of settling disputes and in restraining the coercive powers of Law.

Justice as impartiality has been recognized from the very beginning of the civilization in

ancient Egypt and the land of early Hebrews. “It has mainly been concerned with control of

aggression and discrimination.5 It has helped in mitigation of inequalities generated by

institutions. In the name of justice “certain limitations are embodied in the constitutions. The

exclusion of arbitrariness grows gradually in the sphere of criminal law. Again in “modern

times the principle of distributive justice of Aristotle has its use for equitable distribution of

means, physical and mental well being in a highly differentiated and large scale society. We

now agree that gross inequalities are unjust and that it is just that minimum conditions of well

being be provided to all; yet there is no agreement about just distribution of property.6

Justice as Right or Reality must have reference to the whole existence which has to be

accepted, maintained and enriched. Thus Justice understood is not only realization of truth

of reality through knowledge. Also it is more essential to realize the truth of material human

existence by pursuit of Arth or material well Attainment of riches, material advantages,

3 Aristotle, Nicomachean Ethics, translated by W.D. Ross, revised by J. Ackrill and J. Urmson, Oxford: Oxford University Press.

4 Ibid.5 Noddings, Nel, 1984, Caring: a Feminine Approach to Ethics and Moral Education, Berkeley: University of California Press.

6 Ibid.

wealth and all that covers commercial life, business affairs, work, prices, etc; Arth in the

sphere of law means plaint, action petition; in politics it is the interest of the State i.e.;

expedience. In man’s life in general it is utility, that is what is useful. 7 That to secure these

rights incorporated in the declaration, Governments are instituted among men, deriving their

just powers from the consent of the governed. But the very first objection to the principle of

political equality is that man are not, in fact equal, K.K. Mathew J. rightly said that, this is not

a lethal thrust. Even if the language of the Declaration is ambiguous, the principle is best

understood not as a strictly factual proposition but as a moral or ethical assertion.8

The word equality is incapable of a single definition as it is a notion of many shades and

connotations. Though it is a notion which makes statements on equality highly problematic,

however, a number of noted sociologists, social scientists, philosophers, and great saints

gave their explanation concerning the notion of quality.9

Thus some of the philosopher inclined to stress more on the consideration than anything else,

which is further illustrated by Rashdall’s assertion that every human being is of an equal

intrinsic values and hence equally entitled to respect. Another philosopher Frankena, added

that, the meaning of the equal intrinsic value of all persons is that we should be concerned for

the good lives of every individual, that the only just society must so far as possible, but again

provided equally the conditions under which its members can by their own efforts achieve the

best lives of which they are capable. This precisely means that the society must at least

maintain same minimum level of food structure.

Why Distributive Justice

Now, after closely analyzing the aspects of inequality, it becomes very clear that equality is a

sort of claim of intrinsic values, which we want to share equally and that in fundamental

respects regardless of obvious differences between one man and another, all men deserve to

be given certain kinds of equal treatment in crucial inputs of their lives, though not in all.

This moral claim need not be description of an existing fact unless it be taken as a peculiar

kind of moral fact about whose existence many philosopher would have serious doubtsts.

7 Ibid.8 Dallmayer, Functionalism, Justice and Equality, (1967), p. 78, Ethics 10.

9 Ibid.

There are numbers of ways to express the ideas of equality which is the sole basis of

American Declaration of Independence and behind the concept of equality, that all men are

created equal. Nevertheless, there are, of course great people in the world who sacrifice-their

lifes for the promotion of the equality, and they dreamt for the elimination of all types of

inequalities from the society and anticipated for a egalitarian and just social order. But how

far their dreams come true is not at all clear till now.

Martin Luther King Jr. once said that:

I have a dream that one day this nation will rise up and live out the true meaning of its creed

that all men are treated equally.

Now its very interesting to note that, in the former statement people intended to retain

inequality while in the latter, they want to eliminate. It enables us to think that it is not

possible to have a egalitarian society and just social order were inequality are no more existed

and all men are being treated equal by other.10

From the above explanation, we finds that every sociologist, and 11 political thinker right

from Plato to Laski and Aristotle to Roscoe Pound in one way or the other accept the

existence of inequalities either natural, or social in the present society. Now the question

arises, why is there inequality among men? Can it be reduced or even abolished altogether?

Or do we have to accept it as a necessary element in the structure of human society. There is

no unanimity about the answer for these questions among the sociologists as well as political

scientists. There is also a question equally important to my mind that when nature itself is not

fair or just and itself created inequalities, then how can a men be fair and just towards his

fellow being. And we finally come to the conclusion that nature and society both are

responsible for creating inequalities in the world.

Thus, we can conclude that both natural and social inequality are natural and social

phenomenon respectively. As man is usually

10 See, for, A.D. Tocqueville and John Stuart Mill’s expressions, Id., No. 3, p. 20911 Lughlin McDonald, Racial Equality, title page, (1977). 28

called a social animal, the creator by creating highly conscious and mentally developed

animal on the earth perhaps expected from him fair and equal treatment towards their fellow

beings. But unfortunately, social animal (the men) could not perform this holy duty entrusted

by the nature (creator) of equal and fair treatment, and bitterly failed to maintain that men are

born physically unequal but in the treatment he is equal to the other men. Hence we can put

in this way also, that ‘man

is born unequal’, ‘he will remain unequal’ and ‘will die unequal’.

Before we examine the other aspect of inequality, the very

important question before us is what is the nature and different forms

of inequality.

37

R.Dehrendorf, “On the Origin of Inequality among men in Essay in the Theory of Society,

Stanford University Press (1968) pp. 151-178. 29

History has given different names to inequality, what was called

in the eighteenth century the origin of inequality, and in the nineteenth,

the formation of classes, we described today as the history of social

stratification.38

The idea of inequality very simple and very complex. At

one level it is the simplest of all ideas and has moved people with an

immediate appeal hardly matched by any other concept. At another

level however, it is an exceedingly complex notion which makes

statements on inequality highly problematic.