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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 ones own duty according to ones 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.
2
The 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,
wealth and all that covers commercial life, business affairs, work, prices, etc; Arth in the

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.
sphere of law means plaint, action petition; in politics it is the interest of the State i.e.;
expedience. In mans 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 Rashdalls 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
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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 Mills expressions, Id., No. 3, p. 209
11
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.