T C A Srinivasa-Raghavan: Equity and justice

LINE & LENGTH

It is time politicians understood the distinction between the two because it is critical to reform.

The response of the political establishment to the Supreme Court judgement in the T M A Pai Foundation case on private professional colleges brings into sharp focus the confusion that prevails in the former between justice and equity.

An 11-judge bench has ruled that unaided institutions are not any under obligation to take directions from the government as to whom they will admit and in what numbers. In other words, the government can't provide for quotas.

The political response has been predictable: a lot of deprecatory talk, accompanied by the usual threats to amend the law. The intemperate protest has led to the Chief Justice cautioning the government against talk of confrontation.

Hand waving and feet stomping by politicians when the Supreme Court applies the law is not new in India. Nor, more importantly, is it peculiar to it.

As was pointed out by an eminent Chief Justice four decades ago, it is inherent in the situation because politicians and governments want to move ahead without regard to the law, especially when there are significant political benefits to be reaped. (So, I might add, do criminals.)

Courts, on the other hand, are not charged with making the law, but only applying it. Until the law is changed, they can only maintain the existing one. And this results in conflict.

In the UK, from which we have borrowed our governance model, these issues were settled in the 16th and 17th centuries. But in the US, which also has a very strong judiciary, the matter is not yet fully settled. The Supreme Court still finds itself at odds with the politicians, who therefore like to pack it.

In that sense, our situation is closer to the American one. There is an important reason for this. This, I would submit, is the blurring of the distinction in both countries between the notions of justice and equity.

Our politicians have equated social justice, which is actually about equity, with justice to the individual, whether it is a person or an entity. When you do this, equity comes into conflict with the notion of justice to the individual.

Social justice may require that seats be reserved everywhere. But such reservations will inevitably infringe upon the imperatives of justice to the individual. Instances of this abound.

When a court is asked to intervene it performs its dharma, which is to provide justice to the individual. Just as it is the politicians' duty to protect groups, it is the courts' duty to protect individuals.

The result is highly persistent conflict. In the US, it led two very eminent philosophers to examine the question. One of them was John Rawls, the other was Robert Nozick. Both were at Harvard. Both are now deceased.

Rawls became highly influential in the 1970s, when his book the Theory of Justice provided for the first time the intellectual foundations on which redistributive policies could be based. Perhaps borrowing from Gandhiji he wrote, "No redistribution of resources within a state can occur unless it benefits the least well-off."

The problem that he tackled is familiar: that it is fine for individuals to make sacrifices for the sake of the majority. Morally, however, this view is not entirely acceptable.

Rawls set himself the task of coming up with an alternative view. In so doing he not only altered the fortunes of the Democrats but also of political thought itself.

He said that the social contract consisted of people meeting and working out a set of mutually acceptable and fair rules on how to live together, which was fine, but would these rules also be socially just? Would they take into account the interests of the weak? How could true justice be attained if people sought to maximise their individual welfare?

The central idea driving his theory was of people deciding behind a "veil of ignorance". This veil was to ensure that they knew nothing about themselves or their positions in society, so that all those pieces of information that were irrelevant to question of justice were stripped away.

He then worked out what these rules would be. Everyone duly attacked him.

The most influential critic was Robert Nozick, who believed that only a minimal state was justified and that Rawls' rules required "big" government. Such a government, he said, was politically unjustified.

The debate cut to the bone of politics. What was really at stake was whether economic freedom was important to individual liberty. If so, did it create an obligation on the state to not tamper with individual rights, especially those that related to property?

On balance, given that politicians have a very narrow focus, with no clear idea of separating social from private benefit, I think Rawls was wrong to equate "true justice" with social justice. He would have been better-off thinking of equity, rather than justice, which is a different animal altogether.

In the final analysis, it boils down to balancing the two. This is what our Supreme Court has been doing in case after case, with admirable success.

And that is why the politicians should pipe down.