“Theory of Justice” under the Indian and Pakistani Constitutions – A Comparative Analysis

Ms. Simran Sabharwal


Abstract

The Theory of Justice’ by John Rawls postulates his central idea of justice using the doctrine of good and moral development. His philosophy is helping lawmakers to provide justice even today. The article will critically analyse the Rawlsian theory in the context of India and Pakistan. Both countries follow Rawls’ principle to some extent in their policies. However, due to the difference in the system of governance the presence is much more visible in India. The article will address the research question ‘Are the principles of Rawlsian equality jurisprudence traceable in Constitutions of India and Pakistan?’ Noam Chomsky, another eminent jurist is considered to be a relevant model and termed as ‘Titan of 20th Century’.


Introduction

Justice is simple, but the world is complicated, so the application of justice in the world contains a few intricacies.”

                                                                                                            – Serge-Christophe Kolm[1]

John Rawls’ ‘A Theory of Justice’ is one of the most influential works in moral and political philosophy. His books discuss individual liberty, justice and maintaining peace in the society. These concepts can be traced in a somewhat foggy manner in both India’s and Pakistan’s Constitutions. While social justice is one of the most important aspects of justice, many other concepts can also be reckoned to form a part of the complete theory. Such aspects include- reservation, basic human rights, secularism and fair offer of employment.

Philosopher Rawls was against the current legal regime. He suggested that an ideal society is one in which no one has prior knowledge of another person’s status. The foundational stones of the society should be behind the ‘veil of ignorance’ and believed that it will benefit the lowest strata of society. He questioned the situation wherein people from different backgrounds are made to follow the same set of rules. Is the contemporary situation averse to Rawlsian ideas?

With the development of new institutions and certain other changes with time, the presence of Rawlsian principles has become less evident. It is difficult to directly point them out in the working of these constitutional institutions. However, small portions of his theory are embodied in almost every constitutional provision. This article will deal with the research question ‘Are the principles of Rawlsian Equality Jurisprudence traceable in Constitutions of India and Pakistan?’

The Theory of Justice and the Constitution of India

India’s existence as a nation depends on how we the people implement our constitutional provisions. The Indian Constitution was framed before Rawls wrote his book “A Theory of Justice.” A restrictive understanding of justice would place it under Article 38 and Article 39(b) and (c) of the Indian Constitution. The meaning of justice is justified not only on the fair allocation of resources, but also upon such a distribution of rights and duties. The Supreme Court has explained the fundamental rights in correlation with Rawlsian ideas which are seen to be reflected in Articles 14,15,16 and 21.[2]

Article 14 has been discussed in detail. The article works on the principles of ‘Fair Equality’ as provided by Rawls in his theory. He stated that inequality which ensures the benefit of the less privileged sections is allowed. Rawls was aware that if absolute equality is imposed in a strict formal sense than it would lead to inequalities. Article 14 allows differentiation on reasonable grounds for benefit of lower strata of society. If solely ‘Formal Equality’ is implemented without any special provisions then these sections of society would continue to suffer without any special aid. A clear jurisprudential understanding of the article does not support the conclusion that everyone should be treated equally in each and every circumstance. The concept of equality has always been subject to the surrounding environment. If absolute equality is imposed in every situation ignoring the other aspects, then in reality it would lead to inequality. The Mandal Case[3] that gives the “greatest benefit to the least advantaged people” is one such instance in Indian Constitutional history where the difference principle given by Rawls is applied. Every person in India does not have the same background. Reservation in jobs and educational institutions reflect the Rawlsian approach. “Fair Equality of Opportunity” provides a level playing field that prevents inequality. So, if the people are not equal naturally, is it correct to treat them in a similar manner. Rawls’ principles answer the question negatively. Equals should be treated equally and unequal should be treated according to their capabilities.

Rawls himself stated principles that are true in the very context of India.[4] India is a nation that houses different religions, castes and languages. For liberal democracy to survive, there should be certain parameters that decide the limits of all things that they can tolerate. Our Constitution is on an equal footing with the theory and has provided different provisions for various under-privileged sects of society such as women, Scheduled Tribes, Scheduled Class and many others to draw a balance for ‘Empowerment of Justice.’

Application of “Theory of Justice” in Pakistan

The Constitution of Pakistan came into force on August 14, 1973 and it recognises Islam as the state religion. People following religion other than Islam have often been restricted from conducting their religious activities. The atrocities against other religions are on a rise. Pakistan has failed to ensure equal rights to all citizens which is a basic proponent of Rawls’ theory. This goes against the basic philosophy of Rawls, i.e., the veil of ignorance, wherein all are equals and come together to form principles for social cooperation. Rawls states that if the least-off in the society gets the greatest benefit then the principle of equality can be waived off. However, the Constitution of Pakistan prima facie declares Islam as the state religion which creates differentiation in the different religions. Be it a politically motivated move or a result of its past relations with the eastern neighbour (India), Pakistan has always been inclined towards Muslims. This can even be noticed as it took 73 years for Pakistan to recruit a person from minority for the post of General Duty Pilot Officer in the Pakistan Air Force.

The government of Pakistan has been toppled many times by the military in the past without giving proper reasoning and the basic rights were suspended during that period. India has also faced a similar instance in the year 1975 when an emergency was imposed without giving proper grounds. The Constitution has been amended since then and it is ensured that citizens’ rights are not taken away arbitrarily in the future. In the case of Pakistan, there have been no changes even after so many military coups.

In the COVID-19 crisis, there was news that minorities were discriminated on the basis of their religion. In economic matters, there has been a dearth of equal opportunities. This was also reflected in the UNDP report of 2019 that showed Pakistan’s performance as highly unsatisfactory.

Applying Rawlsian theory to Pakistani society reveals that people belonging to the majority have gained more benefits and people of other religions have been at a disadvantageous position. Pakistan will be able to provide better opportunities socially as well as economically if the principle of the veil of ignorance is applied.

A Critical Reflection on the Theory of Justice of the two Constitutions

John Rawls’ concept of social justice means to take decisions through the veil of ignorance. He provides us an opportunity to solve issues impartially and rationally. India and Pakistan are two economically less developed countries and are largely traditional. India has a democratic government while Pakistan state follows a crooked form of democracy. The disparities between the rich and poor will prevail even if both apply the principles of “Fair Equality of Opportunity.” Rawls has stated that economic inequalities are acceptable if they are for everyone’s advantage and if the institutions are open for all. These two phrases ‘everyone’s advantages’ and ‘open to all’ are ambiguous. For example- It is nearly impossible for an ordinary person deprived of all amenities and economic strength to contest for elections. The cost of election requires millions of rupees which an ordinary man cannot afford. This proves that even though the office is open for all, it does not prove to be for everyone’s advantage.

Noam Chomsky is another jurist who has talked extensively on rights and India-Pakistan relations. Rawls and Chomsky are considered to be the ‘Two Titans’ of 20th-century justice. Chomsky advocates the Rawlsian form of justice. Chomsky has written in length on the right to information which is an important right for the citizens of India as well as Pakistan. He believes that the contemporary world is one in which human rights and democracy are under serious attack. The socio-economic projects in India undermine human rights and democracy. Chomsky even called Pakistan a failed state as it has undergone an extremely dangerous form of radical Islamisation. The citizens have been given democracy in the flavour of Islamic philosophy. Chomsky has provided a solution stating that the right to information is an important basic right for citizens of both the country. The citizens should be correctly informed of their rights. For this, he proposed a five-filter test that all published news must pass through. The test includes ownership, funding, dependence on government, flak and common conceptions shared by those in the profession of journalism. Chomsky warned that freedom is declining in India as even educational institutions have come under attack for raising their voice against the decisions of the government. This can be seen by the example of JNU wherein students who were protesting were beaten up inside their own campus. He also mentioned that the Aadhaar card which is the Indian biometric identity system can be used in a totally unacceptable way which is an abuse to an individual’s right to privacy.

For the proper development of human rights in India as well as Pakistan, the nations should adopt a middle path of John Rawls and Noam Chomsky’s theory. in the current faltering democracies, Chomsky is more relevant than ever.

Conclusion

India and Pakistan should imbibe Rawls’ principles of Justice. In India, supremacy is given to justice, and this concept has a broad ambit in the socio-legal sphere. It provides justice to whosoever asks for it. The true essence of the Indian Constitution can be seen in the phrase ‘Satyameva Jayate’. Our Preamble works on the principle of equality to all citizens and that can also be seen in Fundamental Rights and DPSPs. On the other hand, in Pakistan, although equality is provided but that is namesake. The law and reality are quite different. The country needs to improve the implementation of laws to ensure equality.

Therefore, we should not sway ourselves away with the thought of what we should have in our nation because it is not about equality of treatment or equality of opportunity but equality of result.


[1] SERGE-CHRISTOPHE KOLM, MODERN THEORIES OF JUSTICE, 212 (2002).

[2] Navtej Singh Johar v. Union of India, A.I.R. 2018 S.C. 4321 (India).

[3] Indira Sawhney and Ors. vs. Union of India and Ors., A.I.R. 1993 S.C. 477 (India).

[4] T.R. Sharma, Rawlsian Justice: Disjunction Between Choice and Observance, 50 IJPS 28, 33-34 (1989).


 

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