Theories of justice and the Indian constitutional idea of justice

Judicial and Legislative Process · Unit V · Topic 16 of 20 · 6 min read

Aristotle, utilitarianism, Rawls, Nozick and Sen on what justice requires, and how the Preamble, the Directive Principles and the courts give content to social, economic and political justice in India.

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On this page

1. Classical accounts
2. Utilitarianism
3. Rawls: justice as fairness
4. Critics of Rawls
5. Justice in the Indian Constitution
6. The courts and constitutional justice
7. Justice and the two processes
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Justice is the end both judicial and legislative processes claim to serve. The theory questions ask you to compare accounts (Rawls against utilitarianism and Nozick, Sen against Rawls); the Indian questions ask how the Constitution defines justice and which institution delivers it. Join the two: the Indian Constitution reads like a choice among these theories.

1. Classical accounts

Aristotle (Nicomachean Ethics, Book V) distinguished distributive justice (allocation of honours and goods in proportion to merit, a geometrical equality) from corrective justice (restoring the balance between parties after a wrong, an arithmetical equality). Corrective justice is the work of courts in tort and contract; distributive justice is mainly the work of the legislature.
Natural law (Aquinas): an unjust law is a perversion of law; justice is measured by reason and divine law.
Kelsen (What is Justice?, 1957) concluded that justice is an irrational ideal, a value judgment that science cannot settle, and kept it out of the pure theory of law.

2. Utilitarianism

Bentham and Mill held that the right act or law is the one that produces the greatest happiness of the greatest number. The theory gives the legislator a test for every law and treats each person’s happiness as counting equally. Its weakness, pressed by Rawls, is that it does not take seriously the distinction between persons: it permits sacrificing a minority if the total gain is larger. Mill’s harm principle (On Liberty, 1859) was an attempt to protect individual liberty within a utilitarian frame.

3. Rawls: justice as fairness

John Rawls, A Theory of Justice (1971), revived social contract theory.

The original position: principles of justice are those that free and equal persons would choose behind a veil of ignorance, not knowing their class, talents, sex or conception of the good.
Two principles:
1. each person has an equal right to the most extensive scheme of equal basic liberties compatible with a like scheme for all;
2. social and economic inequalities are to be arranged so that they are (a) to the greatest benefit of the least advantaged (the difference principle) and (b) attached to offices and positions open to all under fair equality of opportunity.
Lexical priority: the first principle comes before the second; liberty cannot be traded for economic gain.
In Political Liberalism (1993) Rawls recast the theory for a society of reasonable but conflicting doctrines, relying on an overlapping consensus and public reason.

4. Critics of Rawls

Robert Nozick, Anarchy, State, and Utopia (1974): the entitlement theory. A distribution is just if it arose from just acquisition and just transfer (with rectification of past injustice), whatever its pattern. Redistributive taxation is, on this view, like forced labour. His Wilt Chamberlain example shows that liberty upsets any patterned distribution.
Communitarians (Michael Sandel, Liberalism and the Limits of Justice, 1982): the self behind the veil is too thin; persons are constituted by their communities.
Amartya Sen, The Idea of Justice (2009): Rawls’s “transcendental institutionalism” seeks perfectly just institutions; Sen prefers a comparative approach that asks how to reduce manifest injustice. He uses the Sanskrit distinction between niti (rules and institutions) and nyaya (the realised outcome, the lives people can actually lead), and measures justice by capabilities.
Feminist critics (Susan Moller Okin) argued that Rawls left justice within the family unexamined.

Theory	Measure of justice	Role of the State
Utilitarian	Total welfare	Maximise it
Rawls	Fair terms chosen behind the veil	Secure liberties; arrange inequalities for the least advantaged
Nozick	Just history of holdings	Minimal: protect entitlements
Sen	Capabilities; reduction of injustice	Expand real freedoms

5. Justice in the Indian Constitution

The Preamble resolves to secure to all citizens justice, social, economic and political, and places justice before liberty, equality and fraternity. The order reflects a choice: the Constitution treats the removal of social and economic injustice as a purpose of the State, not merely the protection of existing holdings. Ambedkar warned in his speech of 25 November 1949 that political democracy cannot last unless there lies at the base of it social democracy.

Social justice: abolition of untouchability, protective discrimination for backward classes, Scheduled Castes and Tribes (Articles 15(4), 16(4), 46).
Economic justice: Article 38 (a social order in which justice, social, economic and political, informs all institutions; minimising inequalities of income), and Article 39 (distribution of material resources to subserve the common good; preventing concentration of wealth).
Political justice: universal adult suffrage (Article 326), equal access to public office.
Access to justice: Article 39A (inserted in 1976) — equal justice and free legal aid — implemented by the Legal Services Authorities Act, 1987.

6. The courts and constitutional justice

Balance between rights and directives. Minerva Mills v. Union of India, 1980 INSC 142, (1980) 3 SCC 625, held that the harmony and balance between Parts III and IV is itself a basic feature; neither can be given absolute primacy. This is close to Rawls’s refusal to trade basic liberties for economic gain.
Socialism as a purpose. D.S. Nakara v. Union of India, 1982 INSC 103, (1983) 1 SCC 305, read the Preamble’s socialist goal into the pension scheme and struck down an arbitrary cut-off date.
Livelihood. Olga Tellis v. Bombay Municipal Corporation, 1985 INSC 151, (1985) 3 SCC 545: the right to life includes the right to livelihood; pavement dwellers could not be evicted without a fair hearing. A capabilities argument in all but name.
Equality of opportunity. The reservation cases, from Indra Sawhney v. Union of India (1992) onward, are debates between formal and substantive equality and echo the fair-equality-of-opportunity principle. (The doctrinal detail belongs to the constitutional law paper.)
Access to courts. Free legal aid as part of Article 21 and PIL as a device to bring the poor into court (see the PIL note).

Which theory does the Constitution adopt? None wholesale. The guarantee of fundamental rights against the State is liberal; the Directive Principles and the socialist goal are redistributive in a Rawlsian sense; the protection of property was cut back (Article 31 was repealed in 1978 and the right to property moved to Article 300A), which Nozick would reject; and the courts’ focus on livelihood, education and dignity reads more like Sen. The best answer says so and gives one provision or case for each.

7. Justice and the two processes

The judicial process delivers mainly corrective justice between parties and protects rights against the State; the legislative process is the main instrument of distributive justice, because it alone can tax, spend and restructure. Indian PIL blurred the line by asking courts to deliver distributive outcomes, which is why it attracts the separation-of-powers criticism. The Constitution assigns social and economic justice primarily to the State acting through legislation (Article 37 declares the Directive Principles fundamental in the governance of the country and makes it the duty of the State to apply them in making laws), with the courts as guardians of the limits.

How this is examined

Expect “Critically examine Rawls’s theory of justice”, “Compare Rawls and Nozick”, or “Explain the concept of social justice under the Indian Constitution”. For the theory questions, state the theory, give its critics and apply it to one Indian example. For the Indian question, start with the Preamble and Ambedkar, set out the three forms of justice with their Articles, and end with the cases and the division of labour between legislature and court.

Now try the real questions: Judicial and Legislative Process past question papers.