American philosopher John Rawls’ idea of justice can be seen in our constitution, though some Supreme Court judgements have moved away from it, says this book
By V Venkatesan
To understand this book, one needs to understand American political philosopher, John Rawls’ (1921-2002) theory of equality and his idea of a hypothetical agreement behind a veil of ignorance in an initial situation of equality. Rawls suggested that we could consider a thought experiment to think about justice. Thus, as we gather to choose the principles which would govern us, we do so behind a “veil of ignorance” that temporarily prevents us from knowing anything about who in particular we are, that is, our class or gender, race or ethnicity, political attitudes or religious beliefs.
The veil of ignorance also prevents us from knowing our relative strengths or weaknesses. The assumption is that since no one would have a superior bargaining position because of this veil of ignorance about each other, the principles we would agree to would be just.
Behind this veil of ignorance, as we won’t know whether we belong to a majority or a minority, our natural inclination would be to prefer principles which would favour a minority, as we don’t want to be oppressed if we happen to be a minority, even if this gives pleasure to the majority. This is because once the veil of ignorance rises and real life begins, we don’t want to face discrimination as a minority, if at all we happen to belong to that group. Therefore, Rawls said, we would, behind the veil of ignorance, reject utilitarianism and agree to a principle of equal basic liberties for all citizens. Secondly, he suggested that we would not sacrifice our fundamental rights and liberties for social and economic benefits and permit only those inequalities that work to the benefit of the least advantaged members of society. Rawls’ difference principle does not require an equal distribution of income and wealth, but an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution.
JUSTICE AS FAIRNESS
The framers of the Indian constitution, having debated and adopted it in the Constituent Assembly in 1949, had no idea of Rawls’ theory of justice, which he authored in 1971. Did our framers imagine a veil of ignorance about one another, in order to produce a document as complex as the constitution? Possibly so, if the veil of ignorance is stretched to include not just the members of the Constituent Assembly (who probably knew each other well), but the people of India as a whole. The veil of ignorance is perhaps understood as a metaphor for the contract between the Constituent Assembly and the people, both being rational and mutually disinterested, to borrow the phrase used by the author of this book. The author is close to endorsing the Rawlsian conception of justice, when he suggests that the Indian constitution approaches justice as fairness as it negates and denies any place for the accidents of natural endowment and the contingencies of social circumstance as counters in the quest for political and economic advantage.
By understanding the constitution in the framework of Rawlsian theory of justice, author Krishna Ananth argues that the Right to Equality as guaranteed by Article 14 or the Right to Life as guaranteed by Article 21 was a mandate upon the State. Article 31, by which the Right to Property was accorded the status of a Fundamental Right as such, however, was to be seen in conjunction with Articles 39(b) and (c) of the constitution. (Article 39(b) mandates the State to secure that the ownership and control of the material resources of the community are so distributed as best to subserve the common good, while Article 39(c) requires the State to ensure that the operation of the economic system does not result in the concentration of wealth.) The idea of socialism, as laid out in these provisions, carries a consensus which, according to the author, is as old as the original position, as understood by the framers. The author refers to the “original position” several times in the concluding chapter in an effort to underline the salience of certain principles, as if these are immutable.
Krishna Ananth traces the shift away from the original position in the Supreme Court’s judgments in the Golaknath, Bank Nation-alization and Privy Purses cases, but quickly adds that these were not autonomous developments by themselves as they were intimately linked with the attempt in the political domain to renege on the commitment to socialism. The Supreme Court’s judgment in the Keshava- nanda Bharati case in 1973, according to Ananth, marked a return to the original position. As he says, the long and short of this move was that while the courts shall not order the State to enforce the redistribution of wealth and means of production, there was no way that the State can be prevented from enforcing those even if some of the fundamental rights were infringed upon by such Acts.
RELYING ON KANT
Ananth briefly returns to speculate on the impact of Rawls, while discussing Keshava-nanda, but admits that it is not his concern in this book. He adds, however, that the basic structure doctrine (where the basic features of the constitution are kept intact) is an important tool to reiterate the constitutional scheme, as the original principle. He also suggests that the Rawlsian approach formed the basis for the majority judgment in the Keshavananda, not-withstanding that the judges did not refer to Rawls at all. Ananth, however, relies on references in different judgments in the Keshava-nanda to Immanual Kant’s philosophy on which Rawls too leaned heavily. Kant, who precedes Rawls by two centuries, was the original author of imaginary contract.
Ananth observes that the Supreme Court’s decision in the BALCO case in 2001 involved the political establishment and the higher judiciary reneging from the socialistic principles at the same time. This, he says, was unlike in the past where one of the two institutions stood firm insofar as ensuring that socialism remained the state policy. In this case, the court upheld the disinvestment proposal by which BALCO, hitherto a central PSU, was to be transferred to Sterlite, a private player.
In the concluding paragraph of the book, Ananth makes the subtle point that it is not enough to rely on our institutional strength—whether legislative or judicial—to keep our focus on the original position. According to him, if Rawls’ theory of justice relied heavily on the original position, the many aberrations which marred our institutional strength, point to the need to go beyond Rawls and adopt a war of positions, as articulated by Amartya Sen in his The Idea of Justice.
One hopes Ananth will quickly write a sequel to this book to elaborate what he merely hints here.