The concept of Justice has been on the forefront of philosophical discourse having wide realms of academic ink but is still as stationary as ever. A utilitarian concept of justice would entail the dispersal of justice across larger amounts of people. Conversely, Karl Marx considered justice to be a facade that enabled Capitalist exploitation[1]. Accordingly, how must one define justice? Some might say that justice ascends from the concept of equality. Some believe otherwise. It is an undisputed fact that the notion of equality is distinctive to a particular person as the perception of it differs from one individual to another. In lieu of understanding what entails as just, it is rather important to take note of the fact that injustice is the vigorous paraphernalia through which one acknowledges the prominence of justice. The snowballing outcries have been doubled in India with the onset of Covid-19 alongside the already existing class divide. Therefore, India is in a definitive need of a system that tackles existing issues and reduces the inception of new ones. This blog is an earnest attempt at reconditioning India’s socio-political discourse and examining whether or not Rawls’ theory of justice could be used in repairing the country’s long fraught problems of multicentricity. 

The veil of ignorance propounded by Rawls is a decent attempt at reconditioning the principles of the Kantian categorical imperative. Rawls proposes a person constructing the ideal society to be blinded by a veil, essentially being unaware of what position he would later entail in hopes of securing basic liberties. Since the person has no clue about his position, he would want to construct a society in which even a person who is the worst off does as well as he can. Rawls proposed this thought experiment to be a social contract entailing the original position of equality. He laid down the difference principle that would be chosen from the original position which states that inequality could be fair, should it benefit those who are the least fortunate. E.g., The privileged stratum of the society could benefit until their benefits help fix the lesser fortunate in a substantial way. A constant question that comes to mind is whether the founding fathers of the Indian Constitution imagined a veil of ignorance in furtherance of a complex text that is the Constitution?[2] The Reservation clause would be a good paradigm of it.  However, considering the stout class divide in the trajectory of the social pyramid, it can be said that ensuring fairness and equity amongst individuals withstanding the fact that there exist various classes, castes, numerable layers within economic statuses, etc. is not an easy task. Unpacking the true sense of fairness and equity thus becomes a political necessity.

So, what exactly is a fair and just society? Are we inherently just or egocentric? Countless philosophers have sought to receive answers of what a just society is. The social contract theory explained by Rawls with the inculcation of maximization of liberty, opportunity, equality and justice in terms of ‘fairness’ proves to stand on certain pre-requisites of early jurisprudential theories which vested on transcendental institutionalism.[3] Amartya Sen’s contention to this idea of justice lied on a solely realistic practical approach[4]. He argues that such theories fail to consider the plurality of opinions and are consigned on the superficial idea of a perfect arrangement which is hardly achievable.

Rawls also poses a moral assumption of justice being associated to fairness and is of the opinion that one must adopt the principles of fairness in order to process the concept of justice. Therefore, he creates an original position in his hypothetical in lieu of wanting to envisage what the society would be like had we chosen the principles of justice not knowing our place in the same. Rawls proposes two principles of Justice. First one is the principle of equal liberty and the second one consists of fair opportunity and the difference principle (as stated previously).

Analyzing Rawls’ Theory of Justice through Sen’s lens in the context of India

Sen categorically denies the hypothetical situation created by Rawls and states that the theory will not be able to decipher the concerning demands of the population. He demonstrates this using an example of three children, Anne, Bob and Carla fighting for a flute. Annie claims that the flute is her prerogative since she is the one who can play it. Bob argues an economic egalitarian perspective and states that since he is the poorest of all he must be the one to receive the flute. Carla responds to both on libertarian grounds stating that she spent a lot of time making the flute and therefore she must be the one to keep it. Now, from an economic egalitarian perspective, Bob must be the one to keep it. From a libertarian perspective, it belongs to Carla. Furthermore, from the utilitarian hedonistic view, the flute would maximize Annie’s happiness since she is the only one who knows how to play it. Therefore, theorists of diverse ideologies would interpret the situation according to their idiosyncrasies. Sen believes that such conditions make it impossible to show how the Rawlsian concept of Justice achieves the best outcome midst conflicting theories. [5]

Looking at it from the contextual lens of India, like the three kids, India not only possesses countless problems but also countless people having conflicting conditions that make them susceptible into considering themselves the deprived population. It is almost impossible to locate a temporal point at which inequality was embedded in the fabric of India, but the fact remains, that this enterprise has deep-seated roots into the society. The Rawlsian theory, therefore, in actuality only seems to focus on furthering the idealistic notions of justice as opposed to eliminating injustices that already persist, something which India is in a desperate need of.

Sen’s Concept of Niti or Nyaya- a ray of sunshine for India?

Sen imagines that a theory must not be indifferent with the lives of the people who are actually living the dilemma. He proposes behavioral transgressions instead of focusing on the inadequacies and defects of the institutions itself.  The early Indian Jurisprudential concept of ‘niti’ transmits behavioral correctness in tandem of organizational propriety[6], however ‘nyaya’ depicts the results of the lives individuals are able to live, a concept of realized justice.

A realization concentrated perspective helps in recognizing the significance of preventing severe injustices as opposed to focusing on achieving an ideal society. For example, the abolishment of slavery in the 18-19^th centuries was in lieu of averting severe injustice and was not in furtherance of satisfying the transcendental question of labelling an ideal social institution. This historical moment could also be used in the context of the Indian society. There exist analogous manifestations of discriminatory and unjust practices against the downtrodden like, not enough medical care to the below poverty population, absence of basic education, famines, farmer’s suicides, etc. The rational humanity argument using the concept of ‘nyaya’ must demand the subtraction of these unjust deficits in the country. This is not just a theme for political philosophy, but a significant concern faced by a large section of the Indian society. [7] The broader perspectives of ‘nyaya’ signify that social realizations are produced through institutional bases.[8] The usage of this in the political warfare that exists in the country will aid in mitigating some, if not most of the deprivations.

Conclusion

The quest for perfect justice and a just society proves to be an unattainable yearn. The problem lies in the fact that humans and their problems are much more convoluted and complex to be separated into watertight compartments of principals of justice. My proposal does not scrap the Rawlsian model in entirety on the basis of it being devoid of any practicality but suggests that in order for it to conceptually work, the early Indian Jurisprudential concepts of ‘niti’ and ‘nyaya’ as proposed by Sen must be applied to reduce the amounts of injustice faced by the disadvantaged classes. Sen’s idea of Justice completes the Rawlsian concept of justice. I envisage this model to be deployed by working within the system and proposing a set of reforms in the current law. Considering the extent of injustices faced by the oppressed classes, one would think uprooting the system undergirding the society would be the only plausible solution. However, considering India’s historical and political warfare in the recent times, uprooting the system will in all possibilities lead to a destruction of societal fabric. To make sure that the aforementioned upheaval does not take place, slow and systematic processes of reforms and continuous amendments are our best chance to fight the inherent injustice that lies within the roots of India.

[1] Dhawal Shankar Shrivastav, Rawls’ theory of Justice through Amartya Sen’s idea, ILI LAW REVIEW 151, 151 (2016).

[2] Sorin Baiasu, why fairness matters more than equality, THE CONVERSATION, (Jun 26, 2020), https://theconversation.com/why-fairness-matters-more-than-equality-three-ways-to-think-philosophically-about-justice-140954.

[3] Dhawal Shankar Shrivastav, Rawls’ theory of Justice through Amartya Sen’s idea, ILI LAW REVIEW 151, 152 (2016).

[4] Amartya Sen, The Idea of Justice (Penguin Books 2010).

[5] Kanti Lal Das, Justicium vs. Justicia: A debate between Rawls and Sen, JOURNAL OF EASY WEST THOUGHT, https://www.cpp.edu/~jet/Documents/JET/Jet31/Das15-24.pdf.

[6] Supra note, n4.

[7] Amartya Sen, ‘Niti’ or ‘Nyaya’: The real injustice that should keep us awake at night, SCROLL.IN, (Aug 14, 2015), http://scroll.in/article/748345/niti-or-nyaya-the-real-injustice-that-should-keep-us-awake-at-night.

[8] Supra note, n4.

Isha Parulkar is third-year student at Jindal Global Law School, Sonipat.