Module 4

Justice

1. Introduction
In democratic systems, justice is given the highest place. The
word justice is derived from the Latin word “jus” which
means to “bind” to contract. The Greek word for justice is
“dike”. Justice stands for just conduct, fairness or exercise of
authority in maintenance or right.
Different interpretations are given to justice from time to time.
Some writers regard justice as virtue while others hold it for
equality'. Some consider it as rule of law'. Justice is not only
an integral part of political science, but also of ethics, law,
philosophy, etc.
Major Concepts of Justice: There are two major concepts of
justice. The first one, Numerical Concept of Justice, gives
equal share to all. The Greek City States followed this
concept. The holding of an office in this system did not call
for any special knowledge or qualification. This concept was
mooted by Jeremy Bentham. The idea was everyone is to
count for one, nobody for more than one.
The next one is Geometrical Concept of Justice. It is a
concept of proportionate equality. It means equal share to
equal and unequal share to unequal. It means that the
distribution of power and patronage should be proportionate
to worth or contribution of the individual. Pluto and Aristotle
favoured this idea.
Plato’s Concept: Plato, the father of political philosophy, in
his “The Republic”, defined justice as one of functional
specialization. He was of the opinion that justice was ethical
or philosophical and not based on conventional morality.
According to him, an individual render of justice performed
his duties for which he was fitted and trained for.
Plato, further, viewed justice as a quality of the soul and habit
of mind and aimed at an organic society. He regarded justice
as the supreme virtue. Plato opined that justice was something
internal, and it existed in the individual and in the state.
Justice was the bond which held a society together. Plato's
theory of justice was universal in character.
2. Types of Justice
1. Social Justice: Social Justice is taken to mean that all the
people in a society are to be equal and there is be no
discrimination on the basis of religion, caste, creed, colour,
sex or status. Barker said that social justice is another name
for equal social rights. Social Justice aims to provide equal
opportunities to every individual to develop his inherent
qualities.
2. Economic Justice: Economic Justice is indeed closely
related to social justice because economic system is always an
integral part of the social system. Economic justice demands
that all citizens should have adequate opportunities to earn
their livelihood. They should get fair wages as can enable they
to satisfy their basic needs and help them to develop further.
The state should provide them economic security during
illness, old age and in the event of a disability.
3. Political Justice: Political justice means giving equal
political rights and opportunities to all citizens to take part in
the administration of the country. Citizens should have the
right to vote and to contest elections without any
discrimination on the basis of religion, colour, caste, creed,
sex, birth or status.

Distributive Justice: According to Aristotle, distributive

justice implies that the state should divide or distribute goods
and wealth among citizens according to merit. Distributive
justice includes affirmative action such as recruitments and
promotion in government services, admission to public
educational institutions, seats in legislature, welfare, free
education and other goods and opportunities and they are
distributed amongst the members of the society.

The simple approach, with regard to the theory of distributive

justice, was made by the 20th century American political
philosopher John Rawls in his books A Theory of
Justice and Political Liberalism. Rawls introduced the
concept of justice as fairness which consisted of liberty and
equality. Equality is subdivided into
 fair equality of opportunity; and
 the difference principle.
This doctrine is appropriate for the forms of government
which neglects the basic rights and interests of the minority.

Legal Justice: It has two dimensions-the formulation of just

laws and then to do justice according to the laws. Legal
Justice means rule of law and not rule of any person. It
includes two things: that all men are equal before law, and
that law is equally applicable to all. While making laws, the
will of the rulers is not to be imposed upon the ruled. Laws
should be based on public opinion and public needs. Social
values, morality, conventions, the idea of just and unjust must
be always kept in view.

3. Theories of Justice
Mill’s Utilitarian Theory of Justice: The concept of
utilitarian justice can be found in the work “Utiltarianism” by
John Stuart Mill. Mill said that justice was a subset of
morality—“injustice involves the violation of the rights of
some identifiable individual”.
Utilitarians see justice as part of morality and don’t see justice
to have a higher priority than any other moral concern.
Utilitarians often advocate for social welfare because
everyone’s well-being is of moral interest and social welfare
seems like a good way to make sure everyone flourishes to a
minimal extent.
Utilitarians often advocate free trade because (a) free trade
can help reward people for hard work and encourage people to
be productive, (b) the free market allows for a great deal of
freedom, (c) freedom has a tendency to lead to more
prosperity, and (d) taking away freedom has a tendency to
cause suffering.
Nozick’s Theory of Justice: This theory affirmed that we
have negative rights (to be left alone) but denies that we have
positive rights (to social welfare or education). Nozick says
taxation is a form of coerced redistribution of wealth and it’s
unjust because we have a right to property and we don’t have
a right to social welfare.
John Rawls’s Theory of Justice: Rawls described his theory
of justice called “Justice as Fairness” in his book “A Theory
of Justice”. He suggested a new way to learn about principles
of justice—the original position. The original position asks us
to imagine that a group of people will get to decide the
principles of justice. These people don’t know who they are.
Rawls calls it ‘veil of ignorance’. They are self-interested, and
they know everything science has to offer. Rawls argues that
they want to enforce principles of justice that will “fairly
distribute” certain goods that everyone will value—what
Rawls calls “primary social goods”.
Rawls argues that the people in the original position will
discuss which principles of justice are best before voting on
them, and the best principles worth having will reach a
“reflective equilibrium”. In this process, the most intuitive
principles will be favoured and incompatible less intuitive
principles will have to be rejected in order to maintain
coherence. He then lays down two intuitive principles of
justice in particular which will reach reflective equilibrium:
1. Each person is to have an equal right to the most
extensive total system of equal basic liberties compatible
with a similar system of liberty for all.
2. Social and economic inequalities are to satisfy two
conditions: first, they are to be attached to positions and
offices open to all under conditions of fair equality of
opportunity; and second, they are to be the greatest
 expected benefit of the least advantaged members of
society.
4. Administration of Justice
Administration means management and justice means to right
and equitable implication. By the administration of justice is
meant the maintenance of right with in a political community
by means of the physical force of the state. For sound
administration of justice, physical force of the state is prime
requirement.
According to Salmond, a state with reference to its territory as
a society of men established for the maintenance of order and
justice within a determined territory by way of force. The
main function of the administration of justice is the protection
of individuals' rights, enforcement of laws and punishment of
criminals.
It is the social nature of men that inspires him to live in a
community. However, living in a society leads to conflict of
interests and gives rise to the need for Administration of
Justice. Once the need for Administration of Justice was
recognized, the State came into being.
Initially, the State was not strong enough to regulate crime
and impart punishment to the criminals. According to Hobbes
“that a common power is necessary to keep people with in
control in the community. He says, unless man is under “a
common power to keep them all in awe”.
The main object of the administration of civil justice is to
provide relief by way of compensation or other relief to the
injured party. The rights enforced by civil proceedings are of
two kinds- Primary Rights and Sanctioning Rights.
5. Types of Administration of Justice
Administration of Justice is the primary functions of the State
and it is generally divided into administration of Civil Justice
and Administration of Criminal Justice. There are two types
of wrongs, civil wrongs and criminal wrongs. Criminal
wrongs are public wrongs while civil wrongs are private
wrongs.
Civil Administration of Justice: The main object of the
administration of civil justice is to provide relief by way of
compensation or other relief to the injured party. Basically, it
is a right in persona. The rights enforced by civil proceedings
are of two kinds- Primary Rights and Sanctioning Rights.
Criminal Administration of Justice- The administration of
criminal justice is to punish the offender. Punishment may be
described as the infliction by State authority, of a consequence
normally regarded as an evil (imprisonment or death) on an
individual found to be legally guilty of a crime. In the
primitive society, the basis objective of justice was to inflict
punishment on the offenders of a crime. The punishment was
very severe. An eye for eye and a tooth for a tooth was part of
the administration of justice. The objective was to prevent the
future crimes. But now, the punishment system is based on
strict legal rules.
6. Benefits & Drawbacks of Administration of Justice:
Administration of justice brings uniformity and consistency in
the law and it causes a systematic development of law.
The Rules of law represent the collective wisdom of
community therefore, in following them there are little
chances of going wrong.
As the rules are fixed, it helps judge in applying the law
uniformly.
As the law is known to the citizen, it enables them to regulate
their conduct in accordance with it.
But the main disadvantages is that it is rigid. The rate of
change in the society is always more rapid than the rate of
change in the Legal Justice.
Legal Justice is full of technicalities and formalities.
Legal Justice is complex. Our society is complex too. Thus, to
meet the needs of the society, we need complex laws.
Salmond said that ‘law is without doubt a remedy for greater
evils yet it brings with it evils of its own’.
7. Theories of Punishment
The main purpose of administration of justice is to punish the
wrongdoer. It is the State which punishes the criminals. From
the ancient times, a number of theories have been given
concerning the purpose of punishment. Punishment is a
process by which the state inflicts some pain to the persons or
property of person who is found guilty of Crime.
Deterrent Theory: Salmond said that the deterrent aspect of
punishment is extremely important. The object of punishment
is not only to prevent the Evildoer from committing the crime
again but also to make him an example in front of the other
such persons who have similar criminal tendencies.
Even in Manu Smriti, the Deterrent Theory is mentioned.
Manu said “Penalty keeps the people under control, penalty
protects them, and penalty remains awake when people are
asleep, so the wise have regarded punishment as the source of
righteousness”.
Criticism: There is a lot of criticism of the deterrent theory of
punishment in modern times. It has been criticized on the
grounds that it has proved ineffective in checking crimes and
also that excessive harshness of punishment tends to defeat its
own purpose by arousing the sympathy of the public towards
those who are given cruel and inhuman punishment. Hardened
criminals are not afraid of punishment. Punishment losses its
horror once the criminal is punished
Preventive Theory: This theory believes that the object of
punishment is to prevent or disable the wrongdoer from
committing the crime again. Deterrent theory aims at giving a
warning to the society at large whereas under Preventive
Theory, the main aim is to disable the wrongdoer from
repeating the criminal activity by disabling his physical power
to commit crime.
The supporters of this theory recognize imprisonment as the
best mode of punishment because it serves as an effective
deterrent as also a useful preventive measure. According to
Paton: “The Preventive theory concentrates on the prisoner
and seeks to prevent him from offending again in the future.
The death penalty and exile serve the same purpose.
Criticism: Critics points out that Preventative Punishment has
the undesirable effect of hardening first offenders, or juvenile
offenders, when imprisonment is the punishment, by putting
them in the association of Harden Criminals.
Reformative Theory: This theory believes that Punishment
should exist to reform the criminal. Even if an offender
commits a crime, he does not cease to be a human being. He
might have committed the crime under circumstances which
might never occur again. The object of the punishment should
be reform the offender. The criminal must be educated and
taught some art or craft or industry during his term of
imprisonment, so that they may be able to lead a good life and
become a responsible and respectable citizen after release
from jail.
Criticism: Critics of this theory state that if Criminals are sent
to prison to be transformed into good citizens, a prison will no
longer be a 'prison' but a dwelling house. This theory has been
proved to be successful in case of young offenders.
Retributive Theory: In primitive societies, the punishment
was mostly retributive in nature and the person wronged was
allowed to have his revenge against the wrongdoer. The
principle was “an eye for an eye”. According to Justice
Holmes It is commonly known that the early forms of legal
procedure were grounded in vengeance. According to Sir John
Salmond, the retributive purpose of punishment consist in
avenging the wrong done by the criminal to society.
Criticism: Critics of retributive theory points out that
punishment per se is not a remedy for the mischief committed
by the offender. It merely aggravates the mischief.
Punishment in itself evil and can be justified only on the
ground that it yields better result. Revenge is wild justice.
Retribution is only a subsidiary purpose served by
punishment.
Theory of Compensation: This theory believes that
punishment should not only be to prevent further crime but it
should also exist to compensate the victim who has suffered at
the hands of the wrongdoer. However, critics say that this
theory is not effective in checking the rate of crime. This is
because the purpose behind committing a crime is always
economic in nature. Asking the wrongdoer to compensate the
victim will not always lower the rate of crime though it might
prove beneficial to the victim.
Criticism: Critics points out that it tends to oversimplify the
motive to crime.
8. Functions of Courts and Administrative Tribunals
The courts play a prominent role in law-making. It is
responsible for safeguarding the rights of the people. It also
provides advice to the executive and legislative bodies.
Whenever there is a dispute between the state and the central,
the Judiciary resolves it.
Tribunals are institutions established for discharging judicial
or quasi-judicial duties. The objective of tribunals may be to
reduce case load of the judiciary or to bring in subject
expertise for technical matters. Another objective is to provide
speedy and inexpensive justice to the employees on their
grievances relating to service matters. Administrative
tribunals must have a statutory origin. They must have some
features of the ordinary courts, but not all.
Court Administrative Tribunal

A court of law is a part of the traditional judicial The administrative tribunal is an agency created by a
system. statute endowed with judicial powers.

A court of law is vested with general jurisdiction It deals with service matters and is vested with limited
over all matters. jurisdiction to decide a particular issue.

The courts follow a uniform, fixed statutory There is no uniform procedure that the administrative
procedure. tribunals are required to follow to exercise
adjudicatory powers.

The court exercises only judicial functions. Administrative tribunals undertake various other
administrative functions.

All courts are tribunals, but all tribunals are not Tribunal is wider than court.
courts.

It can decide the validity of legislation. It cannot decide the validity of legislation.

The courts do not follow investigatory or inquisition Many tribunals perform investigatory functions as
functions, rather it decides the case on the basis of well, along with their quasi-judicial functions.
evidence.

The decision of the court is objective in nature, The decision is subjective, i.e. at times, it may decide
primarily based on the evidence and materials the matters taking into account the policy and
produced before the court. expediency.

It is presided over by an officer expert in the law. It is not mandatory in every case that the members
need to be trained and experts in the law.

9. Alternate Dispute Resolution Mechanism

An alternate dispute resolution mechanism is a structured
process that addresses disputes or grievances that arise
between two or more parties engaged in business, legal, or
societal relationships. A dispute resolution mechanism must at
a minimum be
 Legitimate: a mechanism must have sufficiently
independent governance structures to ensure that no
party to a particular grievance process can interfere
with the fair conduct of that process.
 Accessible: a mechanism must be publicized to those
who may wish to access it.
 Predictable: a mechanism must provide a clear and
known procedure with a time frame for each stage and
clarity on the types of process and outcome it can (and
cannot) offer.
  Equitable: a mechanism must ensure that aggrieved
parties have reasonable access to sources of
information, advice and expertise necessary to engage
in a grievance process on fair and equitable terms;
 Rights-compatible: a mechanism must ensure that its
outcomes and remedies accord with internationally
recognized human rights standards;
 Transparent: a mechanism must provide sufficient
transparency of process.

10. Types of Alternate Dispute Resolution Mechanism

Collective Bargaining: Collective bargaining is probably the

most effective method of resolving industrial disputes. The
bargaining is collective in the sense that the chosen
representative of the employees (i.e. the union) acts as a
bargaining agent for all the employees in carrying out
negotiations and dealings with the management. Collective
bargaining benefits both employees as well as employers.

Arbitration: It is a procedure in which a neutral third person

studies the situation, listens to both the parties and gathers
information, an then makes recommendations that are binding
on the parties. Arbitration is effective as a means of resolving
disputes because it is established by the parties themselves
and the decision is acceptable to them. Secondly, it is
relatively expeditious when compared to courts or tribunals.
Delays are cut down and settlements are speed up.

Conciliation: It is a process by which representatives of

workers and employers are brought together before a third
party with a view to persuade them to arrive at an agreement
by mutual discussion between them. The alternative name for
third party is mediators. It may be stated that the conciliator
has no power to force a settlement, but can work with the
parties separately to search for solutions, and generally
facilitates the reach of an agreement. Mediators act as
communications catalyst.

Adjudication: It means a mandatory settlement of an

industrial dispute by a labour court or a tribunal. Generally,
the government refers a dispute or adjudication depending on
the failure of conciliation proceedings. Section 10 of the
Industrial Disputes Act, 1947, provides for reference of a
dispute to labour court or tribunal. Once a dispute is referred
for adjudication, the verdict of a labour court or tribunal is
binding on both the parties. But this method has been
criticized because of the delay involved in resolving conflicts.