THE INDIAN CONCEPT OF JUSTICE - Shivam Singh

Justice is often seen as a concept of righteousness, defining what is just and what is unjust. However, justice is a much more intricate term, and its application in real life requires cognizance and understanding. It is so because the tentacles of justice delve deep into other facets of life and give birth to a platoon of new concepts like social justice, economic justice, political justice, and so on. Furthermore, there is no denying that law and justice are intertwined; one cannot work without the other. A law that lacks justice gives birth to injustice and anarchy.

Similarly, justice is incomplete per se and requires a medium through which it can be administered. And because of this reason, justice has been longed for by people for ages. There have been countless efforts to end injustice in India when it was wrongfully subjugated by the British. Nevertheless, justice is not a new concept that emerged just recently. Since the inception of humanity, it has been with us in one form or the other.

Moral values and social institutions also play a huge role when it comes to shaping justice. What is unjust in one era might be just in another era and vice-versa. This change in societal morals has come into the limelight time and time again. From decriminalizing consensual sex among adults (including homosexual sex) as seen in Navtej Singh Johar v Union of India[1] to delegitimizing triple talaq in Shayara Bano v Union of India and declaring it unconstitutional.[2] This might not have been possible back in the 90s when the definition of justice was different from today. People have become more aware of their surroundings and are much more awake to distinguish between just and unjust. Let us see how the Indian concept of justice came into existence and evolved with time.

DHARMA AS JUSTICE

As already mentioned, justice is a concept that has evolved with time. In ancient India, justice was not known as justice but instead a part of ‘Dharma’. Law, justice, and religion were portrayed as a single entity in DharmaSastras, Smritis, and Arthasastra.[1] Justice came into Indian culture as Dharma which, in turn, originated from various Indian texts like the Vedas, Upanishads, and Manusmriti. The relationship of state and Dharma (law and justice) was exemplified in Manusmriti in the form of duties of both the king and the people. It talks about the theory of the origin and propounds that the king acts as an overseer to maintain balance in the society through dharma.[2] The king must protect the weak from exploitation and anarchy to give them justice. The Shatpatha Brahman portrays a king who utilizes Dharma to walk on the right (just) path and serves his people. Similarly, in Upanishads, Dharmais defined more clearly and is denoted as a symbol of ‘Satya’ or truth to make it a supreme power of the land.[3] These concepts are still used in modern India, the only difference is that the king and Dharmaare replaced by the government and justice, respectively.

TWO THEORIES OF JUSTICE

1. Gandhian Theory of Justice- Gandhian theory of justice is more inclined towards the social aspect of justice. Mohandas Karamchand Gandhi fought his entire life for a just society and always upheld the idea of justice. His understanding of justice was an amalgamation of socio-political issues, religion, moral principles, and spirituality.[1] To understand what he yearned for, we need to understand his own experiences and observation that acted as a guiding light. He conceptualized his vision of a just society as a Ram Rajya or Swarajya where every person had a voice, and no distinction was made based between a rich and a poor person.[2] To him, a just society would be where everyone lived in harmony and malpractices have ceased to exist. He heavily emphasized on ‘duty-based approach’ rather than the current ‘rights-based approach.’ He firmly believed that the staircase to a just society was by performing the duties assigned to each individual by his caste and status.[3] “If everyone performed their duties, then others' rights were ensured” was what he believed.[4] His idea of non-violence was an embodiment of social and economic justice. Gandhi wanted India to be a republic state and realized that decentralization of authority was the means to safeguard freedom and justice. His tools to achieve justice were morally reasonable just in themselves.[5]

2. Amartya Sen’s idea of justice- Amartya Sen’s approach towards justice is different from the dominant tradition of political philosophy enunciated by great thinkers such as Thomas Hobbes, John Rawls, or Immanuel Kant. In his book, The Idea of Justice, Sen greatly emphasizes the flaw made by these thinkers to find a 'set of rules that could define what is just and unjust. He argues that this approach does not address the issue of identification and reduction of unjust practices. To prove his point, Sen gives an example that shows how to pass the test of impartiality. His famous illustration of “Three children and a flute” involves A, B, and C contesting for the ownership of a flute. The three children propose an argument as to why they should be given ownership of the flute. While A maintains she knows how to play the flute, B argues that he should be entitled to the flute as he is poor. However, C claims to be the flute’s manufacturer, therefore, is entitled to the ownership of the flute.[1] Each child has a strong argument, and it is impossible to do justice to all. In a utilitarian society, A would be the rightful owner. In an egalitarian society, it would be B, and libertarians would see C as the rightful owner. Through this illustration, Sentries highlight the two flaws in the dominant approach towards justice; the problem of feasibility and the problem of redundancy. He proposes a solution which he calls the ‘realization-focused comparative approach.’[2] He says that instead of trying to draft a set of rules to define justice, we should use a comparative approach to reach a consensus that defines unjust practices.

THEORIES OF JUSTICE REFLECTED IN SOME INDIAN JUDGEMENTS

As discussed earlier, the concept of justice is not new. The Vedas, Upanishads, and many other Indian texts uphold the idea of justice and portray it as the manifestation of God. The theories may have changed with time, but the crux remains the same. Various Indian Judgements have made use of these theories to give justice to the people. The landmark judgment of K. S. Puttaswamy v. Union of India, which upheld the right to privacy as a fundamental right, enshrined Amartya Sen’s idea of justice.[1] In another case of Pradeshiya Jan Jati Vikas Manch and Others v. State of UP and Others that ensured social and political rights of the Scheduled Tribes, yet again reinstated Sen’s idea of justice. Jeremy Bentham’s utilitarian form of justice was propounded in Olga Tellis v. Bombay Municipal Corporation and again in Union of India v. Tulsiram Patel. The libertarian form of justice was propounded in Navtej Singh Johar v. Union of India, Shayara Bano v. Union of India, and Joseph Shine v. Union of India when various old laws were struck down by the court, ending the various malpractices.[2]

CONCLUSION

It is not wrong to say that justice is a double-edged sword. At times, what may seem to be just might be unjust. The Indian concept of justice first emerged in the Vedas as dharma. From that point in time, it continued to evolve and finally gave us a set of rules in the form of the Constitution. By no means the Indian concept of justice is fault-free. There are many loopholes in our system that go unnoticed, thereby giving rise to injustice. Similarly, it would be wrong to link the Constitution of India to a single theory of justice. As in reality, our Constitution is based upon various theories of justice, from Jeremey Bentham’s utilitarian approach to Gandhiji’s idea of social justice. We need to understand is that justice has different meanings, and absolute justice is difficult to attain in the real world. It has been rightly said that “which is justice is truth and the law is a means to an end and justice is that end.”[1]

REFERENCES

[1] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

[2] Shayara Bano v Union of India, AIR 2017 SC 1213.

[3] Meena, Sohan Lal, RELATIONSHIP BETWEEN STATE AND DHARMA IN MANUSMRITI, 3 The Indian Journal of Pol. 66, 575, 575-578 (2005).

[4] Id. At 577.

[5] Id. At 580.

[6]J. Prasant Palakkappillil, The Gandhian Concept of Social Justice, Routledge Handbooks Online (Jun. 2, 2021, 9:29 PM), https://www.routledgehandbooks.com/doi/10.4324/9781315857534.ch3#:~:text=Gandhi%20believed%20that%20the%20praxis,of%20the%20legendary%20King%20Rama.

[7] Mukund Sarda, Basim Akhtar, CONCEPT OF DHARMA, JUSTICE AND LAW: A STUDY, Bharati Law Review, 179, 179-180 (2017), http://docs.manupatra.in/newsline/articles/Upload/50B727EC-6404-4C35-BB26-F6169BF31862.pdf.

[8] Id.

[9] Id.

[10] Inamul Haq, Gandhi and Theories of Justice, 6.1 International Journal of Scientific Research in Multidisciplinary Studies, 59, 59-64 (2020).

[11] Charles Barclay Roger, Amartya Sen and the Idea of Justice, Open Democracy (Jun. 3, 2021, 8:26 AM), https://www.opendemocracy.net/en/amartya-sen-and-idea-of-justice/.

[12] Id.

[13] Legal Service India, http://www.legalserviceindia.com/legal/article-1965-various-theories-of-justice-reflected-in-indian-judgments.html, (last visited Jun. 3, 2021).

[14] Id.

[15] Mukund, supra note7, at 181.