The Categorical Sovereignty of Justice as Equity in the Indian Constitution
If one acknowledges Aristotle’s definition that every constitution must have some vision of the national good towards which it strives, the question that confronted the framers of the Indian Constitution was what was this national good or telos going to be for India?[1284] A close look at the hierarchy of categories that frames the Indian Constitution reveals that the category of justice occupies a preeminent position.
This is clear in the Preamble of the Constitution itself, which I reproduce in its exact format:WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens:
JUSTICE, social, economic, and political;
LIBERTY of thought, expression, belief, faith, and worship;
EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of the Nation:
IN OUR CONSTITUENT ASSEMBLY, this twenty-sixth day of November, 1949, so HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.[1285]
The Preamble is a critical part of the Indian Constitution in that it contains the philosophy of the Indian Constitution-framers. While the rest of the Constitution is focused on the rules and institutional details of governance, it is in the Preamble that one finds articulated a network of political categories hierarchically ordered and meant to guide the Constitution-makers and future legislators in their decisions. Given that the framers did not discuss the philosophical foundations of the Constitution, it is in the Preamble alone that one can get an insight into the fundamental philosophical assumptions that guided their crucial decisions.
The Preamble clearly institutes justice, rather than freedom or individual rights, as its foundational and overdetermining category, bringing the social, the economic, and the political domains within its jurisdiction.
Note that the category of liberty or freedom is second in importance to justice. Also, freedom is limited to the freedom of thought, expression, faith, and worship, and as such does not extend to the domains already covered by the category of justice. Equality and fraternity occupy positions further down in the hierarchy. Thus, in the very formatting of the text of the Preamble, by capitalising the major categories and then setting them in order of precedence, the framers were giving the sovereignty of justice in the hierarchy of categories a visual and self-evident form.To bring out the significance and implications of the sovereignty of the category of justice as equity in the Indian Constitution, I will set it off briefly against alternative political philosophies based on the sovereignty of the category of freedom. This comparison becomes particularly relevant because the making of the Indian Constitution was a self-conscious endeavour in which important members of the Constituent Assembly like Benegal Narsing Rau meticulously studied the constitutions of different countries and even visited these countries in order to develop the most appropriate model for India.[1286]
The ethos of some of the most important constitutions in the West reflect the political philosophies of Jean Jacques Rousseau and John Locke, the two most important thinkers on freedom in Europe. For Rousseau, democracy, as he argued in The Social Contract, is founded on a series of correspondences between the people, territory, state, unity, freedom, and legitimacy.[1287] According to Rousseau’s theory, the idea of democracy is tied to the will of the majority, and the individual derives his status as an equal and free citizen as a member of a particular community or nationality, not from his own individuality, property, or his ability to labour. The judiciary is subordinate to the legislature that embodies the freedom of the collectivity. Thus, what is critical in this constitutional model is the idea of legislative freedom, and justice is defined only in terms of what the collective wills as law.[1288]
The other model available to Indian Constitution-framers was that of grounding the Constitution on the individual and the primacy of the idea of private property.
In Locke’s theory of government, private property - not communal or national identity as in Rousseau - comes prior to the formation of the state.[1289] For Locke, man is free in his ability to labour and his ownership of private property. The individual as the owner of private property is the primary unit of the state, and the market system is the guarantor of this freedom. Locke’s ideas found expression most clearly in the American Constitution. As Kenneth Burke points out, what provided the American Constitution with a larger purpose were the interests of property, business, economic freedom, competition, and productivity.[1290]In sharp contrast to Western constitutions based on the category of freedom, anchored either in collective identity or individual property, the Indian Constitution was grounded, as the Preamble makes clear, on the category of justice as the sovereign legislative principle. The primacy of justice over freedom was not, however, just a philosophical matter for the framers. They laid out how the category was to be deployed in practice in very precise terms in Part IV of the Constitution, a section called the Directive Principles of State Policy that was to be the ground of the entire legislative policy of the post-colonial Indian state. Holden Furber noted in an article written in 1949 that the list of Directive Principles should have formed part of the Preamble since it reflected ‘the social philosophy of the Congress Party’, the main force behind the Constitution.[1291] On the contrary, what the Directive Principles reveal is the determination of the Congress to convert its philosophy as already expressed in the Preamble into a practical guide for legislation in the future.
The first and most fundamental of the Directive Principles of State Policy requires the state to work towards a ‘social order in which justice, social, economic and political shall inform all institutions of national life’.[1292] In the economic domain, the state is required to direct its policy towards securing that ‘ownership and control of material resources is so distributed as best to serve the common good’ and that ‘the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment’ - justice as fair distribution.
In the social domain the state is directed to secure justice ‘not only among individuals but also amongst groups of people residing in different areas and engaged in different vocations’ and to ‘protect weaker sections from social injustice’ - justice as compensatory discrimination. In the domain of international relations, the Directive Principles require the state to maintain and pursue ‘just and honorable relations between nations’ and ‘encourage settlement of international disputes by arbitration’ in opposition to the ‘power politics’ of the cold war - justice as neutrality and impartiality.[1293]The Directive Principles are crucial to an understanding of the Constitution in so far as they were meant to guide the work of legislation as a whole. If these legislative principles were not made justiciable - a fact often brought up to prove their insignificance - then that was because they were not laws: they were the principles of law-making or legislation, in short, meta-laws. Justice itself - as it appeared in the Indian Constitution - was not a law; it was the law of all laws; the source and measure of all laws.[1294]
Thus, unlike in modern Western democracies with freedom as their sovereign legislative principle, where justice comes after the law or justice under the law; in the Indian Constitution, on the other hand, justice in its sovereign form does not consist in the application or the enforcement of law, but rather comes before the law. In so far as justice was elevated to the position of a sovereign legislative principle by the Indian Constitution-framers, law has its origin in justice, not vice versa.
The placing of justice before the law by the Constitution-framers betrays the fact that the specific concept of justice that they were operating with was justice as equity - a monarchical principle - not justice under the law which is based on the notion of universality and impersonality of law and legal procedures. Justice cannot precede or become the basis of law unless the one who makes the law in the name of justice also precedes the law; as the figure of justice, he stands above the law even as he is the source of all laws.
In a monarchical system, what gives legitimacy to the figure of the monarch is precisely his - and therefore the state’s - exteriority to the people he rules over. In such a state, the discourse of justice as equity was historically anchored in the duty, compassion, and personal conscience of the monarch, in opposition to the modern revolutionary discourse of the rights of the citizens deriving from the universality of law.Historically in England, by the nineteenth century, equity was primarily deployed as a judicial category. Growing out of the King's prerogative, equity courts were aimed at providing substantial justice to the claimant by making exceptions to the universality of an impersonal and formal system of laws administered by common law courts. Based originally on moral principles like duty, trust, and conscience, the claimant addressed his petition to the compassion and mercy of the judge, who received his authority from the monarch. Justice as equity is therefore necessarily discretionary and supplements the common law.
In the Indian Constitution, justice as equity was instituted as the sovereign legislative principle, and not deployed as a judicial category that supplements the universality of law, as in England. The Constitution empowers the imperative of justice as equity to override the imperative of universal law whenever the legislature encounters a conflict between the legislative imperatives of universal law and discretionary equity. In this view of legislation, the discretionary state, built within a monarchical model, is the source of all the laws, not the people. The state - not the people - is also, therefore, the source of the Constitution.
It was not surprising then that grounded as it was in the discourse of justice as equity, the Directive Principles were specifically defined in terms of the duties of the state rather than as rights of the individual. As the Preamble to the section on Directive Principles states, these principles were ‘fundamental in the governance of the country' and ‘it shall be the duty of the State to apply these principles in making laws' (author's emphasis).[1295] It is critical to note that individuals could not claim these principles as legal rights.
Their enforcement was dependent entirely on the discretion and conscience of the state.The grounding of the Indian Constitution on the category of justice as equity as its sovereign legislative principle throws up an extraordinary paradox: the constitution of a democratic polity is anchored in a monarchical principle of legislation. The historically remarkable nature of this paradox becomes evident when juxtaposed against the fact that equity as it had evolved in England had come to be tied to an already existing system of natural law, not the compassion or mercy of the King alone. The King was expected to only administer those a priori natural laws. As Edmund Burke, a key philosopher and political theorist of eighteenth-century England would have seen it, to place the King above the law would have been, an act of turning the country over to ‘arbitrary power’.[1296]
III.