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Society and law

Print edition : Mar 12, 2010 T+T-

The easy way to understand justice is to consider it as a response to injustice. The idea of justice, in its philosophical sense, is rather esoteric, and no practical purpose is served by attempting to define it. The four volumes under review implicitly accept Amartya Sens well-articulated thesis in his recent book The Idea of Justice that the search for a perfect set of arrangements for society to ensure maximum justice can distract us from tackl ing real-life, immediate injustices. The volumes deal with both niti (institutional justice) and nyaya (realised justice), which Sen has painstakingly distinguished in his book. While niti aims at perfect justice, even if the results are extreme, nyaya aims to prevent manifestly severe injustice.

Sen believes in the efficacy of nyaya compared with niti in addressing issues of injustice because a consensus on what a perfectly just society would look like is always elusive. It would appear that the range of the subjects covered in these volumes suggests that they make no such distinction between niti and nyaya.

Yet, Sens significant recent contribution to the understanding of justice is likely to influence the way we observe issues of injustice, some of which are dealt with in these volumes.

In his series introduction, Ranabir Samaddar, director of the Mahanirban Calcutta Research Group (CRG), tries to bring some degree of conceptual clarity, but he is by and large not very successful in this mission. He claims that the essays throw light on the limits within which democracy will permit justice, social justice in particular. Soon, however, he confronts the dilemma of having to answer the question whether the essays are conflating democracy with justice.

Other, related questions vie for answers: Are the essays confusing justice with rights or law or equality? Do they overwhelm the idea of justice with its notions of social justice, burdening it with too many ideas, realities and expectations?

Samaddar finds that answers to these questions can be found in the reality of our time. If the society of the propertied weighs everything with money and transforms everything with its Midas touch, the society of the subjects weighs everything with the criterion of justice. The entire series is, he claims, as if caught in a cleft stick, between the governmental and popular notions of justice. If we were to be faithful to the realities of justice, he suggests, we could not have quarrelled over its definition beyond a point and laboured it to death.

This observation echoes Sen, but it should be understood with a caveat. Sen would have rejected governmental notions of justice as they represent niti and not nyaya.

Cast in an archaeological mode of inquiry, the volumes seek to find layers in the practices of and discourses on social justice. The essays thus deal with how time, place, history, perceptions, arrangements or apparatuses (such as legal, judicial, constitutional and administrative apparatuses) play significant roles in influencing the regime of social justice. Conflicting terrain of social justice appears to make Samaddar unhappy since he thinks it makes conventional democracy unstable.

One wishes he had elaborated his thesis that the contentious politics of justice creates deep fissures within democracys constitutional unity and the primacy of the rule of law. But to me, Sen sounds more accommodative of the plurality of competing principles, which may be relevant to the assessment of justice in a given situation. Samaddar claims that these volumes make a more significant point that conventional democracy has little room for considerations for justice while it has more room for liberty, fraternity and equality.

The essays point out the possible ways in which democracy can take the issue of justice as one of its essential parts, which can, as a consequence, propel democracy towards becoming more democratic. The method adopted here, Samaddar suggests, can at best be called guerilla work in philosophy because it subverts many philosophical assumptions without putting on a philosophical garb. Several unexpected questions came out of the justice dialogue, he points out.

Samaddar comes to grips with the idea of social justice by suggesting that some of the issues of our life become social because they raise the question of marginality, and, therefore, of justness. Likewise, these issues become issues of justice because they have refused to be exhausted by governmental, including juridical, ideas and practices and have become social.

Institutions such as the court, the executive, the legislature and the bureaucracy are conscious of the limits to ensuring justice and justify them as they have to be balanced with considerations of security. Security means taking care of and avoiding risks, which include inflation, food crisis, weakening of borders, infiltration and disasters. Governing in risk society means engaging with risks, reorienting policies and ensuring security so that the risks can be calculated and mostly avoided.

Governments would answer in the affirmative the question whether a criminal can be kept long enough in jail to keep society free of crimes, whereas social justice would demand that she be set free once she has been indicted for crime, satisfying the requirement of justice. Minimal justice would mean at least openness of the discourse for claiming redress for the wrongs done a recognition of the wrong, a provision of redress, a guarantee that the wrong will not be repeated.

The first volume presents four chapters on the state of social justice in West Bengal. Based on ethnographic studies, they try to demonstrate that while democracy may widen through the mass entry of workers and peasants and the rural and urban poor, and this may indeed facilitate long-denied political justice for them (like rights of unionisation), this does not ensure social justice per se. This is, of course, a truism.

Samaddars observation here, however, is open to challenge. He finds it ironic that the champions of political democracy, like the ruling Left Front in West Bengal, may not even recognise and, therefore, acknowledge that political democracy does not ensure social justice automatically. On the contrary, as the many obituaries on Jyoti Basu, West Bengals tallest leader, observed, Basu was acutely conscious of the limitations of the Left in parliamentary democracy.

Samaddars other contention is equally debatable. He suggests that the Left parties may even say that the struggles and contentions for social justice are counter-productive for the democracy they guarantee because these contentions target the hegemony of the political class, overwhelmingly coming from the upper/middle caste and with liberal, leftist backgrounds, and this hegemony is essential for the democracy they have ushered in or have widened.

Contrary to what Samaddar believes, the Left parties do not appear desperate to halt the struggles for social justice, and his apprehensions are just that: exaggerated. Samaddar also joins issue with Sen who found nothing wrong in the West Bengal governments forcible acquisition of land in Singur and assured the people whose lands were taken that industrialisation would solve the basic poverty there as it had done elsewhere.

The second volume includes a combination of case studies built on the theme of law and democracys engagement with issues of social justice. The editors, Ashok Agrwaal, a lawyer, and Bharat Bhushan, an eminent editor, assert that social justice is the process of unsettling the status quo. While law has played a pivotal role in the betterment of peoples lives, it has been an inadequate partner of justice, they say.

One of the chapters in this collection documents nearly 60 years of Constitution-based social justice policy and programming, examining the impact of politics and considerations of reality upon the goals of the Constitution. According to Bharat Bhushan, the author of this chapter, politics rather than law played the primary role in determining both the nature and extent of reservation and the timing and manner of its implementation. The role of law, and the judiciary, he says, is more in the nature of umpire-cum-police, using the normative standards given to it to blow the whistle, return the contending parties to their respective corners, and once the heat of the moment has passed, allowing them to slug it out again.

Another chapter deconstructs the role played by the Supreme Court in the failure of the social justice mandate inherent in Article 16 of the Constitution reservation for Dalits and Adivasis in the course of over 50 years of judicial review litigation. Ashok Agrwaal, author of this chapter, argues that the Supreme Court has collectively displayed a singular lack of clarity and will, verging on the culpable, in delineating its vision of social justice for Dalits. The courts quest for balance, he says, helped perpetuate the inequality and imbalance, negating the purpose of reservation.

The last chapter examines the ways in which the law constructs sexual minorities as anti-citizens, denying them equality.

The third volume is edited by Paula Banerjee and Sanjay Chaturvedi, both academics and members of the CRG. This volume discusses the situation of people living on the margins and their relationship with communities that enjoy enough material well-being to secure their own rights. In such a situation, the editors argue, rights empower the strong at the cost of the weak. When the state uses the rights argument for not interfering, it means that it is unable or unwilling to protect the marginalised from the tyranny of the elites. This volume discusses five such situations and concludes that rights might not be the best way for accessing justice. According to the editors, peoples struggle offers an alternative path to justice.

The fourth volume is co-edited by Samaddar with Sanam Roohi, also of the CRG, and includes much primary material that can be of use to a researcher on social justice. This volume is divided into five sections. The first, Development and Discontent, includes articles on ethnicity and land use in the North-east, the case of Kutch in the Sardar Sarovar Project, the environmental movement spawned by the Supreme Courts judgment in the Kudremukh Iron Ore Company case, Sanhatis report on the struggle in Nandigram and the impact of riverbank erosion in West Bengal. All the essays describe the local peoples struggle to rectify their losses.

The dimensions of Development Induced Displacement and Resettlement (DIDR) have been explored by different authors. Most of the articles and material that appear in the remaining sections were published elsewhere but have been reproduced in this volume in view of their significance in the literature on social justice. By republishing them, the editors have not only made them accessible to interested readers but enabled these individual essays to mesh together, complementing one another.