John Rawls Theory of Justice in Indian Scenario

JOHN RAWLS THEORY OF JUSTICE IN INDIAN SCENARIO
Introduction
Rawls argues that self-interested rational persons behind the veil of ignorance
would choose two general principles of justice to structure society in the real
world:
1) Principle of Equal Liberty: Each person has an equal right to the most
extensive liberties compatible with similar liberties for all.
2) Difference Principle: Social and economic inequalities should be arranged so

that they are both (a) to the greatest benefit of the least advantaged persons,
and (b) attached to offices and positions open to all under conditions of
equality of opportunity.
(1) is egalitarian, since it distributes extensive liberties equally to all persons.
(2b) is also quite egalitarian, since it distributes opportunities to be considered

for offices and positions in an equal manner.
(2a) is not egalitarian but makes benefit for some (those with greater talents,
training, etc.) proportionate to their contribution toward benefiting the least
advantaged persons.
THE CONCEPT OF ‘JUSTICE AS FAIRNESS’: a more focused

approach
Rawls discusses the applicability of utilitarianism and of social contract theory
to the theory of justice, and he argues that social contract theory provides
support for equality of basic rights for all individuals. While utilitarianism may
try to justify infringements upon the rights of some individuals if these
infringements produce a greater happiness for a larger number of other
individuals, the theory of justice as fairness (which is a social contract theory)
denies that infringements upon the basic rights of individuals can ever be
morally justified. The theory of justice as fairness argues for equal rights for all
individuals and denies that injustice toward any group of individuals is
justifiable unless this injustice is necessary to prevent an even greater injustice.
In the theory of justice as fairness, the principle of equal rights for all citizens
has priority over the goal of producing the greatest amount of happiness for
the largest number of individuals, but in utilitarian theory the goal of
producing the greatest amount of happiness for the largest number of
individuals has priority over the principle of equal rights for all citizens.
RAWLS THEORY OF JUSTICE IN INDIAN SCENARIO

The Indian Constitution was framed much before the coming of the book ‘The
Theory of Justice’ but it seems as if there is some co-relation between the two.
In fact, the very two principles of justice as preferred by Rawls seem to
completely fit in the Indian Constitution. It may be that Rawls got influenced by
the Indian Constitution but the way in which various Fundamental Rights have
been interpreted by the Supreme Court of India in the latter stages seems to
reflect the ideas of Rawls. Interpretation of Art 14, 15, 16 and 21 shows the
influence of Rawlsian approach.
The first principle of justice as propounded by Rawls has its influence on the
interpretation of Art. 14 in the case of Re Special Courts Bill, wherein
Chandrachur, J. Observed:
“The underlining principle of the guarantee of Art.14 that all persons similarly
circumstanced should be treated alike both in privileges conferred and
liabilities imposed.”
Art.14 does not mean that all laws must be general in character or that same
law should apply to all persons or that every law must have universal
application, for all persons are not by nature, attainment and circumstances, in
the same positions. The State can treat different persons differently if
circumstances justify such treatment. In fact, identical treatment in unequal
circumstances would amount to inequality. The legislature must possess power
to group persons, objects and transactions with a view to attain specific aims.
So, a reasonable classification is not permitted but necessary if society is to
progress.
Class legislation is that which makes an improper discrimination by conferring

particular privileges upon a class of person arbitrarily selected. And no
reasonable distinction can be found justifying the inclusion of one or exclusion
of other from such privilege. While Art.14 forbids class legislation, it permits
reasonable classification of persons, objects and transaction by the legislature
for the purpose of achieving specific ends as was held in State of A.P. v.
N.R.Reddy.
In E.P.Royappa v. State of Tamil Nadu, the Supreme Court challenged the

traditional concept of equality which was based on reasonable classification
and has laid down a new concept of equality. Bhagwati, J., delivering the
judgment on behalf of himself, Chandachur and Krishna Iyer, JJ. Propounded
the new concept of equality in the following words,
“Equality is a dynamic concept with many aspects and dimensions and it

cannot be ‘cribbed, cabined and confined’ with traditional and doctrinaire
limits. From a positivistic point of view, equality is antithesis to arbitrariness. In
fact, equality and arbitrariness are sworn enemies, one belongs to the rule of
law in a republic while the other, to the whim and caprice of an absolute
Monarch. Where an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and therefore violative of
Art.14.”
The word ‘personal liberty’ under Article 21 if interpreted widely is capable of

including the rights mentioned in Article 19. But in Gopalan Case, the Supreme
Court took a very literal view and interpreted these words very narrowly. The
Court took the view that since the word ‘liberty’ is qualified by the word
‘personal’ which is narrower concept and it does not include all that is implied
in the term ‘liberty’. It means nothing more than the liberty of the physical
body-freedom from arrest and detention from false imprisonment or wrongful
confinement.
People often frame justice issues in terms of fairness and invoke principles of
justice and fairness to explain their satisfaction or dissatisfaction with their state
or government. However, in the Indian context, we see a strange drift away from
this rather Western line of thought. The average Indian, being ignorant of his
rights, does not really bother much with social policies of justice; he is content
if in his own life, he sees justice being played out in acceptable terms of society;
albeit tinged by shades of religion and divine intervention. The principles of
equity, equality, and social need are most relevant in the context of distributive
justice but might play a role in a variety of social justice issues. However, because
these principles may come into conflict, it is often difficult to achieve all of these
goals simultaneously. According to the principle of equity, a fair economic
system is one that distributes goods to individuals in proportion to their input.
While input typically comes in the form of productivity, ability or talent might
also play a role. A principle of need, on the other hand, proposes that we strive
for an equal outcome in which all society or group members get what they need.
Thus, poor people would get more money, and richer people would get less. This
principle is sometimes criticized because it does not recognize differences in
productive contributions or distinguish between real needs and manifested
needs. This is where reservation policies in India become academically relevant.
India’s policy of reservation is a daring attempt to remedy the past injustices
suffered by those who are at the lower levels of India's four-tier caste hierarchy.
Before India declared independence in 1947, the British maintained separate
electorates and reserved seats for these groups in Indian Parliament. Soon after
Independence, by recommendation of the Kalelkar First Backward Classes
Commission, the Indian government implemented the model of reservation
schemes for the Scheduled Castes and Tribes in government employment The
Mandal Report of 1980 suggested reserving an additional 27% of government
positions for Other Backward Classes. Amidst violent protest, the Supreme Court
validated this plan.
Articles 142, 144 and the Fundamental Rights enshrined in Part III of the
Constitution provide for a just and fair society and ensure distributive justice as
has been seen even before the enactment of the Constitution.24 Many
judgements originating from the Public Interest Litigation also strengthened the
idea of distributive justice. Also, all the litigation about the various
environmental issues decided by the Supreme Court highlights its attitude to
establish ‘distributive justice’ and ‘corrective justice’. Whether it be the
application of ‘Polluter Pays Principle’ or the ‘Public Trust Doctrine’, the core
idea behind them is distributive and corrective justice. The huge debate that
occurred in Maneka Gandhi v. Union of India on the concepts of ‘procedure
established by law’ and ‘due process of law’ has its source from distributive
justice only. That case saw a complete shift in the attitude of the judiciary that
even if there is some procedure that has been established by some statute
passed by the legislature, the justice will still be done keeping in mind the ‘due
process of law’ taking us away from the A.K. Gopalan v. State of Madras. Law
declared by the Supreme Court is binding is binding on all the courts. But it also
provides that Supreme Court is not bound by its own decisions and it may
reverse its own decision. Thus, where the question of public good comes and
fairness is to be seen, or the need of distribution of the rights and responsibilities
come, Supreme Court has always been in favor of the public, or rather, public
good.
Submitted by:
Shreesh Pathak
LLM
19llm032
NLUO

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JOHN RAWLS THEORY OF JUSTICE IN INDIAN SCENARIO

2) Difference Principle: Social and economic inequalities should be arranged so

(1) is egalitarian, since it distributes extensive liberties equally to all persons.

(2b) is also quite egalitarian, since it distributes opportunities to be considered

THE CONCEPT OF ‘JUSTICE AS FAIRNESS’: a more focused

RAWLS THEORY OF JUSTICE IN INDIAN SCENARIO

Class legislation is that which makes an improper discrimination by conferring

In E.P.Royappa v. State of Tamil Nadu, the Supreme Court challenged the

“Equality is a dynamic concept with many aspects and dimensions and it

The word ‘personal liberty’ under Article 21 if interpreted widely is capable of

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