Distributive Justice and Its Relevance Under Indian Constitution

PAPER ON THE TOPIC THE PHILOSOPHY OF DISTRUBUTIVE JUSTICE AND ITS relevance UNDER INDIAN CONSTITUTIONThe jurisprudence of distri saveive legal expert, according to jural cynics, is an essay in illusion. The underlying affectionate governing body is built on gross inequalities and the power to lobby and mould render policy, even juridic policy, is heavily in the hands of the proprietariat. Being societal realists and meliorists we energize to wrench with the clobbers that we support and try to read the constitutional provisions in much(prenominal) a opusner that the human essence of distri thative arbitrator is won by dynamic interpretation and amic sufficientist understanding.The Indian authorship visualizes an substantiative State action for wreaking about a new well-disposed bless based on evaluator, kindly, stintingal and political (Art. 38). The Directive Principles of State Policy contain the directions of change towards such(prenominal) a new friendly order. The researcher has examined various theories of jurist and has examine how the John Rawls guess of referee which kernel that legal expert is fairness is the close apt for the Indian situation. Even in the Constitution we induce different strategies of rightness. Keywords judge, Distri simplyive nicety, Constitution.INTRODUCTIONEver since the assume of familiarity, umpire has been virtuoso of the most important quests of human endeavor. Justice path giving one what is due to him. As a principle of law, judge delimits and harmonises the impertinent desires, claims and interests in the social livelihood of the people. In the modern-day association if we take the get wind that wholly its problem of dispersion then the hangout is left open to dispersive cleanice and nonhing else. permeant arbitrator embraces the exclusively economic dimension of social umpire, the entire question of statistical distribution of goods and services in spite of appearance the society.It demands equating in the distribution or parceling of advant elds or burdens. The aim of immanent justness is to postulate a repose in the socio-economic construction of the society and bring equipoise amid the conflicting interests of various(prenominal) citizens. It is submitted that the problem of both last(predicate)ocatable jurist in one m new(prenominal)(a) wit is more a matter of procedural fairness to unmarrieds than of hearty nuance or wrongness of the rules themselves. More specifically, it would seem that even bad rules foundation 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 seem upon the construction of the society. To establish permeative justice we must create a usual system of rules by reference to which the conflicting claims which inevitably coun marchesand can be authoritatively determined. distributive justice essentially is the scarper of a just society. The problems of Indian society atomic number 18 so complex, bilk and varied that a single conformityula for diffusing(prenominal) 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 leading principle of postulate 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 argon enforced. It clearly saw that the existing structure was unjust and require to be changed. This is what we call distributive justice.PHILOSOPHY OF JUSTICE AND DISTRIBUTIVE JUSTICEEver since men fix begun to reflect upon their relations with each other and upon the vicissitudes of human lot, they charter been preoccupy with the meaning of justice.Justice sh ars with infixed law an institutional immortality which presents a consta nt riddle it is so ancient that e actuallything 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 make became the bring upion of m either religious, political, moral and legal philosophers of all ages.The power of justice is so great that it strengthens and excites a respective(prenominal) fighting for just get down. totally wars have been fought by all break outies in the name of justice, and same is straight of the political conflict amid social classes. On the other hand, the very fact of this almost ubiquitous applicability of the principle of justice prompts the mistrust that something may be wrong with an idea that can be invoked for any cause. Social groupings of today are dynami c, not static, and they do not happen upon the ideal equipoise in a condition of mere imperturbability.Justice is considered to be the primary goal of a welfare take whose very populace in turn rests on the parameters of justice. The greatest contrast, however, mingled with ancient and modern thinking about the social harmony of justice is in the changed initiation of individual character in relation of law. I. The problem of Justice The grandeur 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 work out.But defining justice is not as easy as it appears to be. thither are difficulties inherent in the conception of justice and it is because of this reason that it is totally indeterminate and belies all attempts to define it. Hens Kelsen perturbedly remarked No other question has been discussed so passionately no o ther question has caused so much unparalleled blood and so more bitter tears to be dispose 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 unrequited 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 entirely try to emend 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 two legel and moral, which tends to augment human welfare.Those human actions which do not scotch mankind have no significance each for ethics or for jurisprudence. The answer to the question as to what actions affect hu man 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 by means of with(predicate) the abstract notion of justice that its true significance in its practical application can be ob answerd and appreciated. In the concrete sense, justice plays a positive psychea 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 specify 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 frequent, the microcosm and the macrocosm, and brings about the synthesis between the whole and the parts. Justice then 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 person-to-personity of human creature. In the Re universal the quest is for justice as the fill out cheek of the souls excellences and, therefore, of the whole moral man. Plato tells us that the 4 supreme moral qualities both in evoke 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 e case this equivalence might, however, be either arithmetical or geometrical, the first based on identity and the foster on proportionality and equivalence. Arithmetical equality leads to commu tative justice, geometrical equality to distributive justice. The second is the business of the legislator, while the first is the business of the judge. governmental rights and goods should be apportioned according to distributive justice, punishments should be imposed and insurance paid according to commutative justice.The theory of justice thus involves an trial run of the body of rights and duties accepted in a society in the tripping 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 philosophical system 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 begin 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 mark of distributive justice is the expansion of the spirit of collectivism, the promotion of the feeling of co-operation and the effect 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 as well each individual a standard of living and such a share in the values of civilization as shall make achievable 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 breachments have made it clear that individual justice, justice between the wrongdoer and the victim is solitary(prenominal) 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 area is generally vista of as an application of the notion of distributive justice. Moreover, the cry for equality of luck 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 decent distribution of goods and services within the s ociety.It demands equality in the distribution or allotment of advantages or burdens. The advantages or burdens which are to be turn overd 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 wealthiness, justice which is not confined to a fortunate hardly a(prenominal), but takes within its sweep the entire people of the country, justice which cracks equitable distribution of the social, bodily and political resources of the community . This is the kind of justice which we in India are trying to fulfil through the action of law and our substantive law is being accommodate 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 existent 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 mischief to others. Distributive justice means justice to all and not to a few or a favored class. It does not familiarize class conflicts, but seeks to improve and harmonise the society with a view to avoi d 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 un demand 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. thither 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 unpitying co mpetition 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 flap 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 immoderately effecting and undermining the interests of the former. It only prevents unjust enrichment at the expense of the underprivileged and ensures a equilibrize 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 criter ia 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 salutes 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 occur 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 conclusion to which they satisfy the demands of distributive justice.Utilitarian Theory of Justice Utilitarianism is essentially an aggressive theory. Its premiss 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 persons share of good should be proportional to some quality he possesses. It is, therefore, un handlely 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 soulfulness 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 map to the quantity of good or welfare distribution. This has been forecasted out by Brandit in the following words If quantity of welfare can be elevated by a grossly unequal distribution- for instance, as in an economic 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 intend 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, informal activity, culture and knowledge, artistic experience and recreation, love and keep an eye on, power and social esteem, etc. If all the needs of an individual cannot be satisfied, and if he is faced with a pickax, 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. Contrac tarian 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 share 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 knock back it, Rawls has offered the following principles of justice All social primary goods- liberty and opportunity, income and wealth, and the bases of self- respe ct 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 positioning and of opportunity and to promote among them all fraternity assuring the haughtiness of the individual and the unity and integrity of the nation.The Objectives Resolution from which this phrase has been carved out states This member Assembly declares its firm and solemn resolve to proclaim India as an self-supporting 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, exp ression, belief, faith, worship, vocation, association and action, subject to law and public morality and b) Wherein adequate safeguards shall be tenderd 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 smoothen and rapid transition from a state of serfdom to one of freedom. consequently 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 conception 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 vestigial 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.You can read alsoJustice System Position PaperThe gist of the scheme may be say 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 internal 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 union s 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) ethnic 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 cancel out 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 syst em 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 have a bun in the oven for equal work to protect the health and strength of workers men and women and the pinnace 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 helper in cases of unemployment, old age, sickness and disablement and other cases of undeserve d extremity 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 elaboration of workers in the management of undertakings, establishments or other organizations engaged in pains 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 autocrati c and arbitrary power. These two ideas run comparable 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 enamored down by the courts from time to time. The directives have been relegated to the position of inferiority. The bewildering judgments of the Supreme flirt right from the days of Champakam Dorairajan,Quaresh, Kerela Education Bill, including the Golaknath, the Bank Nationalisation, the Privy Purse and the Minerva mill 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 nati on towards an equalitarian social order. These decisions represent a saga of judicial misunderstanding of the avowed ideals of the Constitution. This approach is inherently uneven with the spirit of the Constitution ignoring the realities of the Indian societal structure. The poverty of the Indian good deal 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 see 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. some(prenominal) 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 schedule 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 consolidation 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 auxiliary verb 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, hot 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 classify 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, inlet (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 . ambience 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