CORRECTIVE JUSTICE AND DISTRIBUTIVE JUSTICE IN INDIAN CONTEXT

Distributive justice is concerned with the distribution and allocation of common goods and common burdens. These benefits and burdens span all dimensions of social life and assume all forms, including income, economic wealth, political power, taxation, work obligations, education, shelter, health care, military service, community involvement, and religious activities. Thus, justice arguments are often invoked in connection with minimum wage legislation, Affirmative Action policies, public education, military conscription, litigation, as well as with redistributive policies such as welfare, Medicare, aid to the developing world, progressive income taxes and inheritance taxes. Since the common goods and resources of the community cannot be said to belong to any individual but are to be distributed according to the judgment of what is judged to be in the interests of the common good, a judgment which only the political institutions of the State are fit to pronounce, no individual may claim any personal right to any part of the common stock. The principles of equity, equality, and social need are most relevant in the context of distributive justice.

The idea of a fair distribution of resources is generally linked to concepts of human rights, human dignity, and the common good, and is grounded in what civilization is said to owe its individual members in equal proportion. Governments continuously make and change laws affecting the distribution of economic benefits and burdens in their societies. Almost all changes, from the standard tax and industry laws through to divorce laws have some distributive effect, and, as a result, different societies have different distributions.

IMPORTANT THEORIES REGARDING DISTRIBUTIVE THEORIES:

Much of the modern interest in justice can be attributed to the publication of John Rawls’s major work, A Theory of Justice, in 1971. This book builds upon the theory of the social contract associated with Locke, Rousseau, and Kant, and equality, duty and need are central to it. Rawls conceives of a hypothetical original position in which people are behind a “veil of ignorance” of their places in society.

Under these conditions, Rawls claims that people would unanimously choose a particular conception of justice. The greatest attention has been paid to his so-called difference principle, according to which all goods are distributed equally unless an unequal distribution is to the advantage of the least favored. A few points that are seen here are social cooperation, terms of cooperation and difference principle, the original position and the end result principles, macro and micro situations, positive connection, negative connection, and collective assets. Some economists have criticized the difference principle on theoretical grounds, but various surveys and experiments also suggest that his theory is not a good description of actual values. One can delve into the entitlement theory and see how liberty upsets patterns based on the theory of patterning seeing a contrast between the historical and end-result principles.  Nozick argues that justice is exclusively concerned with rights that are determined by the historical acquisition by and transfer of property among individuals. For Nozick, individual choice trumps social choice, and he believes in a limited role for government. Individuals are held responsible for everything. At the other end of the political spectrum, individual responsibility is seen as minimal and state redistribution as necessary to remedy unjust inequalities occasioned by arbitrary factors such as birth and brute luck.

The second category of theories is consequentialist. These include utilitarianism and welfare economics. The most widely embraced concept in economics is the Pareto Principle and the Compensation Principle. The usual definition of equity in welfare economics, however, is the absence of envy criterion. A review of the literature on distributive preferences indicates that people care about the happiness or subjective value derived from allocations. The absence of envy, on the other hand, is at most a second order concern. Together, these studies show that people often seek to maximize surplus, sometimes at a monetary cost and that this is regarded as “fair.” Another approach that relates individual actions to desired outcomes is equity theory. Equity theorists often trace their origins to the Nicomachean Ethics, in which Aristotle proposed proportionality as the foundation for justice. Specifically, fair outcomes for individuals are in proportion to their inputs.

Marx regarded capitalism as unjust primarily because, as an exploitative system, it does not proportion reward to labor contribution, and because it is not oriented to satisfy human needs, least of all the needs of the producers, within its own productive possibilities. Capitalist distributive arrangements issue in a morally objectionable comparative treatment of individuals belonging to the different social classes, or in an objectionable allotment of benefits and burdens, leading to inequality and non-freedom. Affirmative action devices are important aspects of the policy repertoire that contemporary egalitarians use in their struggles against human stratification and the ways of life individualism and hierarchy that persist in differentiating humans through markets and bureaucracies, respectively.

 Martha Nussbaum’s theory of distributive justice runs roughly as follows. The first element of her theory is an account of the essential features of human beings which turn out to be limits and certain basic capabilities for engaging in various sorts of activities. The second element is a list of basic human functional capabilities on the essential providing a minimal theory or conception of the good. Finally, the third part of Nussbaum’s theory is a principle of distributive justice. The three forgoing elements of justice that are important are the Need Principle, the Efficiency Principle and the Accountability Principle. The fourth element of justice is context. The rapid growth of empirical research on distributive justice has provided a rich source of data. Distributive justice can no longer be considered as an amorphous or hopelessly differentiated subject matter.

INDIAN PERSPECTIVE: In its substance, 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 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. While input typically comes in the form of productivity, ability or talent might also play a role.

Articles 142, 144 and the Fundamental Rights enshrined in Part III of the Constitution provide for a just and fair society and ensure distributive justice as has been seen even before the enactment of the Constitution. Many judgments originating from the Public Interest Litigation also strengthened the idea of distributive justice. Also, all the litigation about the various environmental issues decided by the Supreme Court highlights its attitude to establish ‘distributive justice’ and ‘corrective justice’. Whether it be the application of ‘Polluter Pays Principle’ or the ‘Public Trust Doctrine’, the core idea behind them is distributive and corrective justice. The huge debate that occurred in ManekaGandhi v. Union of India on the concepts of ‘procedure established by law’ and ‘due process of law’ has its source from distributive justice only. That case saw a complete shift in the attitude of the judiciary that even if there is some procedure that has been established by some statute passed by the legislature, the justice will still be done keeping in mind the ‘due process of law’. In the A.K. Gopalan v. the State of Madras, the Supreme Court defined that Law declared by the Supreme Court is binding is binding on all the courts. But it also provides that the Supreme Court is not bound by its own decisions and it may reverse its own decision. Thus, where the question of public good comes and fairness is to be seen, or the need of distribution of the rights and responsibilities come, Supreme Court has always been in favor of the public, or rather, public good.

THE CONCEPT OF CORRECTIVE JUSTICE

 It is also known as restorative or rectificatory justice. CORRECTIVE JUSTICE is the idea that liberty rectifies the injustice inflicted by one person on another. However, it comes into play whenever DISTRIBUTIVE JUSTICE is distorted or disturbed, for instance, through some wrongdoing; the judge applies corrective or rectificatory justice to restore the status quo ante i.e., the pre-existing distributive situation.

CORRECTIVE JUSTICE operates on three conditions viz.

An individual’s liability must be assessed consistently with moral norms of responsibility for one’s action

Victims must be made whole ( compensated)   and

The resources for satisfying must come exclusively from the liability payment required by.

According to Aristotle, it is the judge that invariably applies CORRECTIVE OR RECTIFICATORY JUSTICE whenever DISTRIBUTIVE JUSTICE is distorted. In other words, the court is the arena for the administration of CORRECTIVE JUSTICE. From this, two points must be noted in this connection. Firstly, although it is agreed that courts of law are specialized organs of government for the application of CORRECTIVE JUSTICE, yet in performing their task, they do occasionally, either incidentally or deliberately create DISTRIBUTIVE JUSTICE as well. Secondly, although the courts operate a virtual monopoly in the field of CORRECTIVE JUSTICE, other bodies such as the legislature, the executive and the administrative organs of government, United Nations Security Council, The United Nations General Assembly and other UN Agencies, traditional chiefs, individual mediators and conciliators, religious and social bodies and non-governmental organisations (NGOs), to lesser degree, do apply corrective or rectificatory justice also.

On the importance of CORRECTIVE JUSTICE, the supreme court of India in the case of Smt. Kalawati, Lal Chand Gupta And v. Union Of India (UOI) And Ors. On 6 April 2004  stated the following;

“This balance, however, can be upset. Suppose one citizen, X, is prevented by another, Y, from exercising his right to vote. Now the balance is upset because Y has deprived X of a right that should be equally enjoyed by all. At this point “CORRECTIVE JUSTICE” will move in to correct the disequilibrium by forcing Y to make X some compensation. Or again if a wrongfully seizes B’s property, CORRECTIVE JUSTICE acts to restore the status quo by compelling A to make restitution. Justice, then, in its distributive aspect serves to secure, and in its corrective aspect to redress, the balance of benefits and burdens in society.

The function of the courts is chiefly that of applying justice in its corrective sense. In a just system of law, then, we shall expect to find on the one hand rules aiming to procure equality of distribution, and on the other specific rules relating to the application of CORRECTIVE JUSTICE by the courts. These latter rules, however, can be themselves regarded as securing fair dispensation of CORRECTIVE JUSTICE.”

CORRECTIVE JUSTICE AND DISTRIBUTIVE JUSTICE

The terms DISTRIBUTIVE and CORRECTIVE JUSTICE are two concepts that are interwoven in some material respects. In this respect, LORD STEYN, in the case of McFarlane v. Tayside Health Board (2000) 2 A.C  59 commented that “tort law is a mosaic in which the principles of CORRECTIVE JUSTICE and DISTRIBUTIVE JUSTICE are interwoven”.

However, there are discernible differences between the concept of DISTRIBUTIVE and CORRECTIVE JUSTICE. In this respect, CORRECTIVE JUSTICE is the idea that liberty rectifies the injustice inflicted by one person on another. The idea received its classic formulation in ARISTOTLE’s treatment of justice in Nicomachean ethics book. More recently, it has become central to contemporary theories of private law.

ARISTOTLE’s account presents corrective and DISTRIBUTIVE JUSTICE as two contrasting forms of justice. CORRECTIVE JUSTICE, which deals with voluntary and involuntary transactions (today's contracts and torts) focuses on whether a party has committed and the other has suffered a transactional injustice. DISTRIBUTIVE JUSTICE deals with the distribution of whatever is divisible (ARISTOTLE mentions honors and goods) among the participants in a political community. For ARISTOTLE, justice in both these forms relates one person to another according to a conception of equality or fairness (the Greek to is on connotes both). Injustice arises in the absence of equality when one person has too much or too little relative to another.

The two forms differ, however, in the way they construe equality. DISTRIBUTIVE JUSTICE divides a benefit or burden in accordance with some criterion that compares the relative merits of the participants. DISTRIBUTIVE JUSTICE, therefore, embodies proportional equality, in which all participants in the distribution receive their shares according to their respective merits under the criterion in question.

CORRECTIVE JUSTICE, in contrast, features the maintenance and the restoration of the notional equality with which the parties enter the transaction. This equally consists in persons having what lawfully belong to them. Injustice occurs when relative to this baseline one party realizes a gain and the other a corresponding loss. The law corrects this injustice when it re-establishes the initial equality by depriving one party of the gain and restoring it to the other party. ARISTOTLE likens the parties’ initial positions to two equal lines. The injustice upsets that equality by adding to one line a segment detached from the other. The correction removes that segment from the lengthened line and returns it to the shortened one. The result is a restoration of the original equality of two lines.

Furthermore, DISTRIBUTIVE JUSTICE operates on a global level while CORRECTIVE JUSTICE operates on the level of dispute or misunderstanding between two persons in their legal relationship. The point here is that the focus of the DISTRIBUTIVE JUSTICE is to the extent that all person’s dignity and personality should be equally respected by all and, as such, no one should be found doing an act of harm to the other party. On the other hand, corrective or restorative justice comes to play where a person has done harm or inflicted injury on the other party and would be required to restore that person to his status quo ante. In this sense, if A negligently injures B, then A should restore B to his position before the injury while C and E may not be called to do so.

The difficulty of drawing the line between distributive and CORRECTIVE JUSTICE is well illuminated in the American case, Regents of the University of California v Bakke 438 US 265 (1978) in which a student sued the University for unjust discrimination because it admitted black and Indian students with lower qualifications than were required of white students, whereas he, as a white student with higher qualifications was denied admission. The US Supreme Court though failing to enunciate a coherent principle in the case nevertheless disapproved of the admission policy of the University in this regard. However, in spite of Bakke’s case, it may be conceded that this kind of “reverse” discrimination in form of CORRECTIVE JUSTICE through the creation of special opportunity for the less privileged citizens, in the light of existing inequality, may sometimes be justified. Nevertheless, in an instructive case, where Bremen Gardener complained of injustice in employment practices, the European court of justice ruled that positive discrimination in favor of women in cases of employment was illegal.

To say the least, this approach to the issue of distributive and CORRECTIVE JUSTICE is unduly hyper-positivistic, tending undoubtedly to give, albeit unwittingly, a stamp of judicial approbation to educational injustice ostensibly planked on the enigmatic constitutional principle of federal character or equal geographical spread of advantages throughout the country.