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Law and Poverty Assignment

Topic: Concept of Distributive


Justice in India

Submitted by:Mohammad Aazam


B.A.LL.B (Hons.)
Self Finance
Roll No.-32
Introduction
Throughout most of history, people were born into, and largely stayed in, a fairly rigid economic
position. The distribution of economic benefits and burdens was normally seen as fixed, either by nature
or by a deity. Only when there was a widespread realization that the distribution of economic benefits
and burdens could be affected by government did distributive justice become a live topic. Now the topic
is unavoidable. Governments continuously make and change laws and policies affecting the distribution
of economic benefits and burdens in their societies. Almost all changes, whether they regard tax,
industry, education, health, etc. have distributive effects. As a result, every society has a different
distribution at any point in time and we are becoming increasingly more adept at measuring that
distribution. More importantly, at every point in time now, each society is faced with a choice about
whether to stay with current laws, policies, etc. or to modify them. The practical contribution of
distributive justice theory is to provide moral guidance for these constant choices.1

The economic, political, and social frameworks that each society has—its laws, institutions, policies,
etc.—result in different distributions of benefits and burdens across members of the society. These
frameworks are the result of human political processes and they constantly change both across societies
and within societies over time. The structure of these frameworks is important because the distributions
of benefits and burdens resulting from them fundamentally affect people’s lives. Arguments about which
frameworks and/or resulting distributions are morally preferable constitute the topic of distributive
justice. Principles of distributive justice are therefore best thought of as providing moral guidance for the
political processes and structures that affect the distribution of benefits and burdens in societies, and any
principles which do offer this kind of moral guidance on distribution, regardless of the terminology they
employ, should be considered principles of distributive justice.2

1
Introduction: The idea of distributive justice, available at: www.oxfordhandbooks.com (Last visited on March 18, 2019)
2
Global distributive justice introduction, available at: www.cambridge.org (Last visited on March 18, 2019)
Jaun Rawl’s Theory of Distributive Justice

John Rawls (1921-2002) was a contemporary philosopher who studied theories surrounding justice. His
theories are not focused on helping individuals cope with ethical dilemmas; rather they address general
concepts that consider how the criminal justice system ought to behave and function in a liberal
democracy. It is for this reason that it important that all law enforcement personnel be aware of Rawls’
theories of justice or at least have a general understanding of the major concepts that he puts forth.

Rawls’ theory is oriented toward liberalism and forms the basis for what law enforcement, and the
criminal justice system, should strive for in a pluralistic and liberal society. Borrowing from some
concepts of social contract theory, Rawls envisions a society in which the principles of justice are
founded in a social contract. However, Rawls identifies problems with the social contract that do not
allow fairness and equality to exist among members of society and therefore proposes a social contract
which is negotiated behind a “veil of ignorance.” Here the negotiating participants have no idea what
their race, gender, education, health, sexual orientation, and other characteristics are so that the social
contract is fair. Ultimately, Rawls argues that the primary concern of justice is fairness, and within this
paradigm Rawls identifies two principles:

1. “Each person is to have an equal right to the most extensive basic liberty compatible with a similar
liberty for others” . Rawls goes further by allowing each person to engage in activities, as long as he or
she does not infringe on the rights of others.

2. “Social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be
to everyone’s advantage (b) attached to positions and offices open to all…”. Likewise, everyone should
share in the wealth of society and everyone should receive benefits from the distribution of wealth.
Rawls does not argue that everyone should be paid the same, but rather that everyone should have
benefit from a fair income and have access to those jobs that pay more.

These principles should be adhered to, according to Rawls, to ensure that disadvantages are neutralized
and everyone receives the same benefits of justice.3

3
Rawls Theory of Justice, available at: https://opentextbc.ca (Last visited on March 20, 2019)
Distributive Justice in Indian Constitution

The Indian notions of justice closely resemble the Western concept of fairness as a variant of the larger
spectrum of justice. People often frame justice issues in terms of fairness and invoke principles of
justice and fairness to explain their satisfaction or dissatisfaction with their state or government.
However, in the Indian context, we see a strange drift away from this rather Western line of thought.
The average Indian, being ignorant of his rights, does not really bother much with social policies of
justice; he is content if in his own life, he sees justice being played out in acceptable terms of society;
albeit tinged by shades of religion and divine intervention .The principles of equity, equality, and social
need are most relevant in the context of distributive justice, but might play a role in a variety of social
justice issues. However, because these principles may come into conflict, it is often difficult to achieve
all of these goals simultaneously. According to the principle of equity, a fair economic system is one
that distributes goods to individuals in proportion to their input.

Indian constitution opens up with the preamble which states in its unequivocal terms that the people of
India have solemnly resolved to secure to all its citizens justice-social, economic and political, equality
of status and of opportunity and to promote among them all fraternity assuring the dignity of the
individual and the unity and integrity of the 49 nation. The Preamble to the constitution, the
Fundamental rights and the Directive Principles of State policy rest on the solid foundation of political
liberty and socio-economic equality for all the teeming millions in rags, tatters and tears.4

Then, we have Part of the Constitution which contains Fundamental Rights, Part III contains the
Fundamental Rights, six of them in all-Right to Equality, Right to Freedom, Right Against Exploitation,
Right to Freedom of Religion, Cultural and Educational Rights and Right to Constitutional Remedies. In
fact a seventh right, the Right to Property, was omitted by the Constitution (Forty-Fourth Amendment)
Act, 1978, sec. 5 and came into effect on twentieth June, 1979. Thus, right to property is a legal right but
not a fundamental constitutional right under the Indian Constitution. Under the Right to Freedom is

4
Genesis of distributive justice in India, available at:shodhganga.inflibnet.org (Last visited on March 20, 2019)
Article 21 guaranteeing the Right to Life and Personal Liberty. It is this fundamental right which has
become the basis of providing distributive justice to the many millions that are the poor in India.5

As stated, the Right to Life is articulated in Article 21 of the Indian Constitution, which provides, "No
person shall be deprived of his life or personal liberty except according to procedure established by
law." This might seem to be a pretty straightforward right with little ambiguity and therefore little
possibility for any interpretation that could lead to a form of distributive justice. However, the Indian
Supreme Court, through various decisions widened the scope of this Right to Life so as to incorporate
interpretations that led to inclusions of right to livelihood, "Public Trust" doctrine, health, housing etc.

As we can see the scope of a political and civil right like Right to Life has been so broadened by the
various judicial decisions that now the Constitution emerges as the means to ensure distributive justice
to all, particularly the poor in an unequal world. This kind of judicial activism gave legitimacy,
therefore, to the Government's programs.

Part IV contains the Directive Principles of State Policy already discussed above and Art. 38 (2)24 states
that "The State shall, in particular, strive to minimize the inequalities in income, and endeavor to
eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also
amongst groups of people residing in different areas or engaged in different vocations." (emphasis added
is mine). Similarly in Article 39 ("Certain principles of policy to be followed by the State") which is one
of the articles containing directives, amongst other things states, "The State shall, in particular, direct its
policy towards securing-(a) that the citizens, men and women equally have the right to an adequate
means of livelihood; (b) that the ownership and control of the material resources of the community are
so distributed as best to subserve the common good." Article 41 ("Right to work, to education and to
public assistance in certain cases"), provides, "The State shall, within the limits of its economic capacity
and development, make effective provision for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and disablement, and in other cases of
undeserved want." In relation to this provision the Supreme Court in Jacob v. Kerala Water Authority,25
stated different areas or engaged in different vocations." (emphasis added is mine).6 Similarly in Article

5
Distributive Justice and its relevance in Indian Constitution, available at: www.bartleby.com (Last visited on March 20,
2019)
6
Distributive justice application in India, available at: www.scribd.com (Last visited on March 20, 2019)
39 ("Certain principles of policy to be followed by the State") which is one of the articles containing
directives, amongst other things states, "The State shall, in particular, direct its policy towards securing-
(a) that the citizens, men and women equally have the right to an adequate means of livelihood; (b) that
the ownership and control of the material resources of the community are so distributed as best to
subserve the common good." Article 41 ("Right to work, to education and to public assistance in certain
cases"), provides, "The State shall, within the limits of its economic capacity and development, make
effective provision for securing the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement, and in other cases of undeserved want." In relation to
this provision the Supreme Court in Jacob v. Kerala Water Authority, stated that the Court should so
interpret an Act so as to advance this article's purpose that the Court should so interpret an Act so as to
advance this article's purpose.

The fact that the Constitution addresses the question of equality of status and opportunity and provided
for guarantees has enabled the Judiciary as well as the Legislature and Executive to address the
questions of poverty in India. It is the aforementioned constitutional provisions that made possible the
policies of affirmative action on behalf of the poor and disadvantaged in India. If that had not happened
and it was left to the market to bring it about or to the actions of individuals even the little advancement
that has been made towards ending poverty in India would not have been possible.7

7
Concept of socio and economic justice, available at: www.academicedu.com (Last visited on March 20, 2019)
Conclusion

As Mary Robinson put it, "Another world is possible.... t is time that the world comes together around
the conviction that realizing human rights is our best strategy for ending poverty and ensuring a life of
dignity for all." What better way to uphold the human rights of the marginalized and poor citizens than
through the Constitutional framework? The Constitution of India encapsulates both the civil and
political rights as well as the social and economic rights. Working through the Constitutional framework
is the most democratic means to ensure that all citizens have an equal share of resources within the State
and therefore are given the means by which to live with dignity. This will be possible only if we will not
subvert the Constitution. The Constitutional framework can be the best way out of poverty for every
single country of this world. It provides the goals, the mechanisms and the legitimacy to carry this out.
After all, the end goal of pursuing a constitutional method is justice. Pursuit of violent, revolutionary
means has not ended poverty in all these years. As states that seek to observe the rule of law and pursue
constitutional methods to resolve all disputes and pursue all goals it might be but appropriate at the end
of the first decade of this century for us to examine how the Constitution can be used to end poverty in
our countries.