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Module 4
Justice

1. Introduction
In democratic systems, justice is given the highest place. The
word justice is derived from the Latin word “jus” which
means a legal principle or right. The Greek word for justice is
“dike”. Justice stands for just conduct, fairness or exercise of
authority in maintenance of right.
Different interpretations are given to justice from time to time.
Some writers regard justice as virtue while others hold it for
equality'. Some consider it as rule of law'. Justice is not only
an integral part of political science, but also of ethics, law,
philosophy, etc.
Major Concepts of Justice: There are two major concepts of
justice. The first one, Numerical Concept of Justice, gives
equal share to all. The Greek City States followed this
concept. The holding of an office in this system did not call
for any special knowledge or qualification. This concept was
mooted by Jeremy Bentham. The idea was everyone is to
count for one, nobody for more than one.
The next one is Geometrical Concept of Justice. It is a
concept of proportionate equality. It means equal share to
equal and unequal share to unequal. It means that the
distribution of power and patronage should be proportionate
to worth or contribution of the individual. Pluto and Aristotle
favoured this idea.
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Plato’s Concept: Plato, the father of political philosophy, in
his “The Republic”, defined justice as one of functional
specialization. He was of the opinion that justice was ethical
or philosophical and not based on conventional morality.
According to him, an individual render of justice performed
his duties for which he was fitted and trained for.
Plato, further, viewed justice as a quality of the soul and habit
of mind and aimed at an organic society. He regarded justice
as the supreme virtue. Plato opined that justice was something
internal, and it existed in the individual and in the state.
Justice was the bond which held a society together. Plato's
theory of justice was universal in character.

2. Types of Justice
Social Justice: Social Justice is taken to mean that all the
people in a society are to be equal and there is be no
discrimination on the basis of religion, caste, creed, colour,
sex or status. Social Justice aims to provide equal
opportunities to every individual to develop his inherent
qualities.
Economic Justice: Economic Justice is indeed closely related
to social justice because economic system is always an
integral part of the social system. Economic justice demands
that all citizens should have adequate opportunities to earn
their livelihood. They should get fair wages as can enable they
to satisfy their basic needs and help them to develop further.
The state should provide them economic security during
illness, old age and in the event of a disability.
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Political Justice: Political justice means giving equal political
rights and opportunities to all citizens to take part in the
administration of the country. Citizens should have the right
to vote and to contest elections without any discrimination on
the basis of religion, colour, caste, creed, sex, birth or status.
Legal Justice: It has two dimensions; the formulation of just
laws and then to do justice according to the laws. Legal
Justice means rule of law and not rule of any person. It
includes two things: that all men are equal before law, and
that law is equally applicable to all. While making laws, the
will of the rulers is not to be imposed upon the ruled. Laws
should be based on public opinion and public needs. Social
values, morality, conventions and the idea of just and unjust
must be always kept in view.

3. Theories of Justice

Mill’s Utilitarian Theory of Justice: The concept of

Utilitarian Justice can be found in the work “Utiltarianism” by
John Stuart Mill. He said that justice was a subset of
morality—“injustice involves the violation of the rights of
some identifiable individual”.
Utilitarians see justice as part of morality and don’t see justice
to have a higher priority than any other moral concern.
Utilitarians often advocate for social welfare because
everyone’s well-being is of moral interest and social welfare
seems like a good way to make sure everyone flourishes to a
minimal extent.
Utilitarians often advocate free trade because (a) free trade
can help reward people for hard work and encourage people to
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be productive, (b) the free market allows for a great deal of
freedom, (c) freedom has a tendency to lead to more
prosperity, and (d) taking away freedom has a tendency to
cause suffering.
Nozick’s Theory of Justice: This theory affirmed that we
have negative rights (to be left alone), but denies that we have
positive rights (to social welfare or education). Nozick says
taxation is a form of coerced redistribution of wealth and it’s
unjust because we have a right to property and we don’t have
a right to social welfare.

John Rawls’s Theory of Justice: Distributive justice

includes affirmative action such as recruitments and
promotion in government services, admission to public
educational institutions, seats in legislature, welfare, free
education and other goods and opportunities and they are
distributed amongst the members of the society.

The simple approach, with regard to the theory of Distributive

Justice, was made by the 20th century American political
philosopher John Rawls in his books A Theory of
Justice and Political Liberalism. Rawls introduced the
concept of justice as fairness which consisted of liberty and
equality. Equality is subdivided into
• fair equality of opportunity; and
• the difference principle.
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This doctrine is appropriate for the forms of government
which neglects the basic rights and interests of the minority.

Rawls described his theory of justice called “Justice as

Fairness” in his book “A Theory of Justice”. He lays down
two principles of justice:
1. Each person is to have an equal right to the most
extensive total system of equal basic liberties compatible
with a similar system of liberty for all.
2. Social and economic inequalities are to satisfy two
conditions: first, they are to be attached to positions and
offices open to all under conditions of fair equality of
opportunity; and second, they are to be the greatest
expected benefit of the least advantaged members of
society.
Indian theories of Justice
The Indian belief is that justice is the ethical or philosophical
idea that people are to be treated impartially, fairly, properly,
and reasonably by the law. Laws are to ensure that no harm
befalls another, and that, where harm is alleged, a remedial
action is taken. Justice and fairness are used interchangeably.
Justice means the standard of rightfulness.
Gandhiji’s Views on Justice
Gandhiji was the only leader who fought simultaneously on
moral, religious, political, social and economic fronts. He
believed in administration of justice from grassroots level. He
favoured ADR system and the use of regional languages in
courts. He was against doctrine of precedent.
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According to him, anything cannot be done in the name of
majority. The charter of duties is more important than the
charter of rights.
He upheld the right to freedom of speech and expression.
Unjust laws shall not be followed. Lawyer’s job is to unite the
parties and assist the court.
Amartya Sen’s Idea of Justice: Amartya Sen argues in his
2009 book ‘The Idea of Justice’ that justice should not be
confined to mere distribution and fairness, as many traditional
theories suggest. Instead, he proposes a more expansive
understanding of justice that encompasses multiple
dimensions, including capabilities, freedoms, and the
functioning of institutions.
Justice under Indian Constitution
Justice as envisaged in the Indian Constitution ensures that all
the citizens of India should be given social, economic and
political justice. The Constitution also speaks about
distributive justice and legal justice.
The concept of justice is enshrined in the Preamble of the
Constitution. The Articles 14 (right to equality), 15 (right
against discrimination), 16 (right to equality of opportunity in
matters relating to public employment) and 17 (abolishment of
untouchability) incorporated under part III of the constitution
also reflect the idea of justice.
Legal Justice: Provisions relating to 'Equal Justice and Free
Legal Aid' are enshrined under article 39A of the Indian
constitution which give every citizen right to get free legal help
from officers of the court.
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Political Justice means providing equal political rights to all
without any discrimination such as right to vote, right to
contest elections, right to form political parties and right to
criticise the government.
In today's time, Indian judiciary is the protector of civil rights.
It acts as custodian of fundamental rights. In cases
like Maneka Gandhi v. UOI, the court has upheld the right
of civil liberty.
Economic Justice aims at providing equal opportunities for
all to earn livelihood and equal pay for work.
Social Justice means that there will be no discrimination based
on caste, creed, and colour. Social justice means greater good
for larger number of people and unequal people should be
treated equally.
The apex court in the Kesavananda Bharati case held that
social justice is part of Basic Structure of the Indian
Constitution.
Social justice means that equal social opportunities are
available to every person for personal development of every
person without any discrimination based on race, sex or caste.
Social justice can only be enforced in a society where
exploitation of man by a man is not present.
In the case of S. R. Bommai v. Union of India, the apex court
held that social justice and judicial review are two basic
features of the Indian constitution.
Distributive Justice: Distributive Justice means affirmative
actions such as recruitments and promotion in government
actions, admission to public educational institutions, seats in
legislature, welfare, free education and other goods and
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opportunities and they are distributed amongst the members of
the society.
The Articles 38 and 39 deal with distributive justice, a theory
popularised by John Rawls. Distributive justice means fair
distribution of resources among those who are in need of it.
Indira Sawhney v. Union of India was the landmark
judgment where by reservation of jobs for the backward
classes was upheld. Rawl’s idea of equality through protective
discrimination for ensuring justice was favoured by the
Supreme Court in this case.

4. Administration of Justice
The administration of justice means the maintenance of right
with in a political community by means of the physical force
of the state. For sound administration of justice, physical force
of the state is prime requirement.
According to Salmond, a state with reference to its territory is
a society of men established for the maintenance of order and
justice within a determined territory by way of force. The
main function of the administration of justice is the protection
of individuals' rights, enforcement of laws and punishment of
criminals.
It is the social nature of men that inspires him to live in a
community. However, living in a society leads to conflict of
interests and gives rise to the need for administration of
justice. Once the need for administration of justice was
recognized, the State came into being.
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Initially, the State was not strong enough to regulate crime
and impart punishment to the criminals. According to Hobbes
“that a common power is necessary to keep people with in
control in the community.”
5. Types of Administration of Justice
Administration of Justice is the primary functions of the State
and it is generally divided into administration of Civil Justice
and Administration of Criminal Justice. There are two types
of wrongs, civil wrongs and criminal wrongs. Criminal
wrongs are public wrongs while civil wrongs are private
wrongs.
Civil Administration of Justice: The main object of the
administration of civil justice is to provide relief by way of
compensation or other relief to the injured party. Basically, it
is a right in persona. The rights enforced by civil proceedings
are of two kinds- Primary Rights and Sanctioning Rights.
Criminal Administration of Justice: The administration of
criminal justice is to punish the offender. Punishment may be
described as the infliction by State authority, of a consequence
normally regarded as an evil (imprisonment or death) on an
individual found to be legally guilty of a crime. In the
primitive society, the basis objective of justice was to inflict
punishment on the offenders of a crime. The punishment was
very severe. An eye for eye and a tooth for a tooth was part of
the administration of justice. The objective was to prevent the
future crimes. But now, the punishment system is based on
strict legal rules.
6. Benefits & Drawbacks of Administration of Justice:
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Administration of justice brings uniformity and consistency in
the law and it causes a systematic development of law.
The rule of law represents the collective wisdom of
community therefore, in following them there are little
chances of going wrong.
As the rules are fixed, it helps judge in applying the law
uniformly.
As the law is known to the citizen, it enables them to regulate
their conduct in accordance with it.
But the main disadvantage is that it is rigid. The rate of
change in the society is always more rapid than the rate of
change in the legal justice.
Legal Justice is full of technicalities and formalities.
Legal Justice is complex. Our society is complex too. Thus, to
meet the needs of the society, we need complex laws.
Salmond said that ‘law is without doubt a remedy for greater
evils, yet it brings with it evils of its own’.
7. Theories of Punishment
The main purpose of administration of justice is to punish the
wrongdoer. It is the State which punishes the criminals. From
the ancient times, a number of theories have been given
concerning the purpose of punishment. Punishment is a
process by which the state inflicts some pain to the persons or
property of person who is found guilty of Crime.
Retributive Theory: In primitive societies, the punishment
was mostly retributive in nature and the person wronged was
allowed to have his revenge against the wrongdoer. It is also
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known as Vengeance Theory. The principle was “an eye for
an eye and teeth for teeth”. It is based on “tit for tat” policy.
According to Justice Holmes, it is commonly known that the
early forms of legal procedure were grounded in vengeance.
According to Salmond, the retributive purpose of punishment
consists of avenging the wrong done by the criminal to
society.
Criticism: The critics of retributive theory points out that
punishment per se is not a remedy for the mischief committed
by the offender.
It merely aggravates the mischief. Punishment in itself is evil
and can be justified only on the ground that it yields better
result. Revenge is wild justice. Retribution is only a
subsidiary purpose served by punishment.
Deterrent Theory: Salmond said that the deterrent aspect of
punishment is extremely important. The object of punishment
is not only to prevent the evildoer from committing the crime
again, but also to make him an example in front of the other
such persons who have similar criminal tendencies.
Even in Manu Smriti, the Deterrent Theory is mentioned.
Manu said “Penalty keeps the people under control, penalty
protects them, and penalty remains awake when people are
asleep, so the wise have regarded punishment as the source of
righteousness”.
Criticism: There is a lot of criticism of the deterrent theory of
punishment in modern times. It has been criticized on the
grounds that it has proved ineffective in checking crimes.
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Another criticism is that excessive harshness of punishment
creates the sympathy of the public towards those who are
given cruel and inhuman punishment. Hardened criminals are
not afraid of punishment. Punishment losses its horror once
the criminal is punished
Preventive Theory: This theory believes that the object of
punishment is to prevent or disable the wrongdoer from
committing the crime again.
Deterrent theory aims at giving a warning to the society at
large whereas under Preventive Theory’s aim is to disable the
wrongdoer from repeating the criminal activity by disabling
his physical power to commit crime.
The supporters of this theory recognize imprisonment as the
best mode of punishment because it serves as an effective
deterrent as also a useful preventive measure.
According to Paton: “The preventive theory concentrates on
the prisoner and seeks to prevent him from offending again in
the future. The death penalty and exile serve the same
purpose.
Criticism: Critics points out that preventive punishment has
the undesirable effect of hardening first offenders, or juvenile
offenders, especially when they are imprisoned along with
hardened criminals.
Reformative Theory: This theory believes that the
punishment should be awarded in order to reform the
criminal.
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Even if an offender commits a crime, he does not cease to be a
human being. He might have committed the crime under
circumstances which might never occur again.
The object of the punishment should be to reform the
offender. The criminal must be educated and taught some art
or craft or industry during his term of imprisonment, so that
they may be able to lead a good life and become a responsible
and respectable citizen after release from jail.
Criticism: Critics of this theory state that if criminals are sent
to prison to be transformed into good citizens, a prison will no
longer be a 'prison' but a dwelling house. This theory has been
proved to be successful in case of young offenders.
Expiatory or Compensatory: This theory believes that
punishment should not be given only to prevent further crime,
but it should also exist to compensate the victim who has
suffered at the hands of the wrongdoer. The supporters of this
theory say that the object of punishment is self-realisation. If
the offender, after committing an offence, realises his guilt,
then he must be forgiven if he compensates the losses suffered
by the victim.
Criticism: However, critics say that this theory is not
effective in checking the rate of crime. This is because the
purpose behind committing a crime is always economic in
nature. Asking the wrongdoer to compensate the victim will
not always lower the rate of crime though it might prove
beneficial to the victim. Critics points out that it tends to
oversimplify the motive to crime.
Utilitarian Theory of Punishment: Utilitarian
punishment focuses on rehabilitation and deterrence; the goal
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is to use punishment to benefit society. For instance, if jail
time is used as a punishment for a particular crime to
discourage other people from performing it, then the rationale
is utilitarian

Multiple Approach Theory: If a single theory fails to meet

the objective, then a combination of theories is the choice.
Hence, the court should make a judicious approach while
selecting theories of punishment.
Theoretical Underpinnings in Palliative Care in
Victimology
Victimology may be defined as the scientific study of
victimization, including the relationships between victims and
offenders. It is the interactions between the victims, and the
criminal justice system that includes police and courts, and
correctional officials. It also includes connections between
victims and other social groups and institutions, such as the
media, businesses and social movements.

The Declaration of Basic Principles of Justice for Victims of

Crime and Abuse of Power (UN General Assembly, 1985), is
considered as the ‘magna carta’ for victims. It provides the
basic framework of principles linked to victims’ rights. The
international standards expected of the countries in the
treatment of victims have been elaborately detailed in the UN
Handbook on Justice for Victims.

Victims must be treated with dignity and respect by the police

and the courts. Often secondary victimization results because
of the indifferent and callous attitude not only of the criminal
law agencies but also of the people in vicinity, hospitals and
mass media as well. In the USA and some European countries,
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statutory guidelines in the form of “Victims Bill of Rights” are
being provided.
Justice for Rape Victims: In Bodhisattwa Gautam v. Subhra
Chakraborty, the Supreme Court issued a set of guidelines to
help indigenous rape victims who cannot afford legal, medical
and psychological services, in accordance with the 1985 UN
Declaration:
1. The complainants of sexual assault cases should be
provided with a victim’s advocate who has to explain to
her the proceedings. This advocate has to assist her in the
police station and in the court and to guide her as to how
to avail of psychological counselling or medical
assistance from other agencies.
2. Legal assistance at the police station while she is being
questioned;
3. The police should be under a duty to inform the victim of
her right to representation before any questions are asked
of her and the police report should state that the victim
was so informed;
4. A list of advocates willing to act in these cases should be
kept at the police station for victims who need a lawyer;
5. The advocate shall be appointed by the court, in order to
ensure that victims are questioned without undue delay;
6. In all rape trials, anonymity of the victims must be
maintained.
7. Victims frequently incur substantial financial loss.
Some, for example, are too traumatized to continue in
employment. So, in tune with the Article 38(1) of the
Directive Principles in the Constitution of India, there
should be a Criminal Injuries Compensation Board.
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8. Compensation for victims shall be awarded by the Court
on conviction of the offender and by the Criminal
Injuries Compensation Board whether or not a conviction
has taken place. The Board will take into account pain,
suffering and shock as well as loss of earnings due to
pregnancy and the expenses of childbirth if this occurred
as a result of the rape.
• State Compensation for Victims of Abuse of Power: In

1983, the Supreme Court recognized the need for state

compensation in cases of abuse of power by the State
machinery. In the landmark case of Rudul Shah v. State of
Bihar, the Supreme Court ordered the Government of
Bihar to pay to Rudul Shah an additional sum
of Rs.30,000 as compensation for “palliative purposes”.
This comes in addition to a sum of Rs.5,000, in a case of
illegal incarceration of the victim for long years.

8. Functions of Courts and Administrative Tribunals

The courts play a prominent role in law-making. It is
responsible for safeguarding the rights of the people. It also
provides advice to the executive and legislative bodies.
Whenever there is a dispute between the State and the Centre,
the Judiciary resolves it.
Tribunals are institutions established for discharging judicial
or quasi-judicial duties. The objective of tribunals may be to
reduce case load of the judiciary or to bring in subject
expertise for technical matters.
Another objective is to provide speedy and inexpensive justice
to the employees on their grievances relating to service
matters. Administrative tribunals must have a statutory origin.
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They must have some features of the ordinary courts, but not
all.

Court Administrative Tribunal

A court of law is a part of the The administrative tribunal is an
traditional judicial system. agency created by a statute
endowed with judicial powers.
A court of law is vested with It deals with service matters and is
general jurisdiction over all vested with limited jurisdiction to
matters. decide a particular issue.
The courts follow a uniform, There is no uniform procedure that
fixed statutory procedure. the administrative tribunals are
required to follow to exercise
adjudicatory powers.
The court exercises only judicial Administrative tribunals undertake
functions. various other administrative
functions.
All courts are tribunals, but all But all tribunals are not courts.
tribunals are not courts.
It can decide the validity of It cannot decide the validity of
legislation. legislation.
The courts do not follow Many tribunals perform
investigatory or inquisition investigatory functions as well,
functions, rather it decides the along with their quasi-judicial
case on the basis of evidence. functions.
The decision of the court The decision is subjective, i.e. at
is objective in nature, primarily times, it may decide the matters
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based on the evidence and taking into account the policy and
materials produced before the expediency.
court.
It is presided over by an officer It is not mandatory in every case
who is an expert in the law. that the members need to expert in
the law.

9. Alternative Dispute Resolution Mechanism

Alternative Dispute Resolution (ADR) refers to any method
of resolving disputes without litigation. ADR regroups all
processes and techniques of conflict resolution. ADR
mechanism is a structured process that addresses disputes or
grievances that arise between two or more parties engaged in
business, legal, or societal relationships. A dispute resolution
mechanism must at a minimum be;

• Legitimate: The ADR mechanism must have

sufficient independent governance structures.
• Accessible: The mechanism must be publicized to
those who may wish to access it.
• Predictable: The mechanism must provide a clear and
known procedure with a time frame for each stage.
• Equitable: The mechanism must ensure that
aggrieved parties have reasonable access to sources of
information, advice and expertise in a grievance
process on fair and equitable terms.
• Rights-compatible: The mechanism must ensure that
its outcomes and remedies accord with internationally
recognized human rights standards;
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• Transparent: The mechanism must provide sufficient
transparency of process.

10. Types of Alternative Dispute Resolution Mechanism

Collective Bargaining: Collective bargaining is probably the

most effective method of resolving industrial disputes. The
bargaining is collective in the sense that the union, the chosen
representative of the employees, acts as a bargaining agent for
all the employees in carrying out negotiations and dealings
with the management. Collective bargaining benefits both
employees as well as employers.

Arbitration: It is a procedure in which a neutral third person

studies the situation, listens to both the parties and gathers
information, and then makes recommendations that are
binding on the parties. Arbitration is effective as a means of
resolving disputes because it is established by the parties
themselves and the decision is acceptable to them. Secondly,
it is relatively expeditious when compared to courts or
tribunals. Delays are cut down and settlements are speed up.

Conciliation: It is a process by which representatives of

workers and employers are brought together before a third
party with a view to persuade them to arrive at an agreement
by mutual discussion between them. The alternative name for
third party is mediators. It may be stated that the conciliator
has no power to force a settlement, but can work with the
parties separately to search for solutions, and generally
facilitates the reach of an agreement. Mediators act as
communications catalyst.
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Adjudication: It means a mandatory settlement of an
industrial dispute by a labour court or a tribunal. Generally,
the government refers a dispute or adjudication depending on
the failure of conciliation proceedings. Section 10 of the
Industrial Disputes Act, 1947, provides for reference of a
dispute to a labour court or tribunal. Once a dispute is referred
for adjudication, the verdict of a labour court or tribunal is
binding on both the parties. But this method has been
criticized because of the delay involved in resolving conflicts.

Mediation: It consists of negotiation between disputing

parties, assisted by a neutral third party and it is defined as:
"The intervention into a dispute or negotiation by an
acceptable, impartial and neutral third party (with no decision-
making power) to assist disputing parties in voluntarily
reaching their own mutually acceptable settlement of issues in
dispute". Compared to conciliation, mediation is more an
informal process.