Supreme Court Cases Read through the Theories of Justice

The reading. Pure Kant. There is a level below which a person may not be reduced, fixed by what it is to be a person and not by administrative convenience. No aggregate calculation appears anywhere in the reasoning.

3. Constitutional morality against majority preference: Kantian and independence. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

Facts. The petitioners sought a declaration that sexual autonomy and choice of partner are part of Article 21 and that section 377 of the Indian Penal Code was unconstitutional so far as it criminalised consensual acts between adults. Suresh Kumar Koushal had earlier restored the section.

Held. Section 377 was unconstitutional to that extent, as violating Articles 14, 15, 19 and 21, and Suresh Kumar Koushal was overruled. Constitutional morality, not popular or majoritarian morality, governs the interpretation of fundamental rights.

The reading. The express refusal to let numbers decide is the Kantian objection to utilitarianism in constitutional form, and the location of the standard in the Constitution rather than in prevailing opinion is the independence position.

4. Capability: Sen. Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178.

Facts. Private unaided professional colleges challenged State legislation regulating capitation fees, and the Court reconsidered how far Mohini Jain had gone in recognising a fundamental right to education.

Held. The right to education flows from Article 21, its content determined in the light of Articles 41, 45 and 46; every child has a fundamental right to free education up to fourteen years, and beyond that the right is subject to the State's economic capacity. A scheme regulating admissions and fees was framed.

The reading. Education is treated as what makes other rights usable, which is the capability point. The confinement by capacity is the dependency position: a standard operative only so far as law and resources allow.

5. Corrective justice and strict liability: Aristotle, and a distributive turn. M.C. Mehta v. Union of India, AIR 1987 SC 1086.

Facts. Oleum gas escaped from a caustic chlorine plant of Shriram Foods and Fertiliser Industries in a densely populated part of Delhi, causing death and injury. Proceedings begun as public interest litigation raised the standard of liability of an enterprise carrying on a hazardous activity.

Held. Law must grow with a changing society, and Indian courts must build their own jurisprudence rather than be constricted by English law. An enterprise engaged in a hazardous activity owes an absolute and non-delegable duty and is absolutely liable to compensate, without the exceptions qualifying strict liability, the measure of compensation being correlated to the magnitude and capacity of the enterprise.

The reading. Corrective justice, restoring a balance disturbed by a wrong, is the frame. But correlating compensation to the capacity of the enterprise is distributive: Aristotle's corrective justice deliberately ignores the parties' standing, and this decision does not. It is a mixed case and worth citing for exactly that reason.

6. Equivalence in practice, and the dissent that rejects it. Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.

Facts. During the Emergency, a Presidential Order under Article 359 suspended the right of detenus to move any court to enforce Articles 14, 21 and 22. Detenus applied to High Courts for habeas corpus and several entertained the petitions; the State appealed.

Held. By four to one, no person had any locus standi to move a writ petition under Article 226 before a High Court for habeas corpus to challenge a detention on any ground including mala fides, and section 16A(9) of the Maintenance of Internal Security Act was valid. Khanna J. dissented, holding that the State had no power to deprive a person of life or personal liberty without the authority of law even during an emergency.

The reading. The majority reasons from the enactment alone, with no standard beyond it: equivalence. Khanna J. reasons from a standard the enactment cannot displace: independence. The two opinions in one case are the clearest illustration in Indian law of what turns on the module's question.

7. Independence at the highest level. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, striking down clause (4) of Article 329A as destructive of the rule of law, free and fair elections and the separation of the judicial function, though the amendment was formally valid.

8. Justice defeating a formally available manoeuvre. Sarla Mudgal v. Union of India, AIR 1995 SC 1531.

Facts. Hindu husbands converted to Islam and contracted second marriages during the subsistence of their Hindu marriages. The question was whether the second marriage is valid and whether the husband is guilty of bigamy under section 494 of the Indian Penal Code.

Held. A Hindu marriage solemnised under the Hindu Marriage Act 1955 can be dissolved only on a ground recognised by that Act, and conversion to Islam does not dissolve it. The apostate husband remains married, the second marriage is void as taking place during the lifetime of the first spouse, and he is liable under section 494.

The reading. The manoeuvre was formally available and the Court refused it effect. That is the accepted standard of right conduct limiting the technical availability of a rule, which is [The Method of Tradition and Custom] operating in Module IV's territory.

The pattern

Indian courts are not consistent theorists, and should not be expected to be. A single judgment can recognise a right on Kantian grounds, dispose of the case on utilitarian ones, and justify the remedy on capability grounds.

But the reasoning is legible. Asking what the court treated as a reason tells you which conception is doing the work, and saying so in an answer is what distinguishes analysis from narration.

And the constitutional commitment is stable. Across all of them, the proposition that there is a standard by which enactment is measured survives, except in the one case where it did not, which is why that case is cited more than any other in this module.

A worked example

You are given a decision holding that a statute limiting compensation for land acquisition to a fixed multiple of assessed value is void.

How to read it. Look at the reasons. If the Court says the multiple bears no relation to what an owner loses, that is corrective justice. If it says the burden falls on those least able to bear it, that is Rawlsian. If it says the owner is being used to subsidise a public project, that is Kantian. If it says the amount leaves the owner unable to maintain himself, that is capability-based. If it says the legislature could not have intended so arbitrary a result, that is Article 14 and Royappa.

Why this matters for the examination. MU asks for the interrelationship "with the help of various theories of justice". An answer that names theories and then lists Indian cases separately has not connected them. An answer that reads the reasons of a decision and says which theory they express has.

Quick revision

1. A judgment reveals its conception of justice through what it counts as a reason.
2. Olga Tellis: capability and Kantian recognition, utilitarian disposition, independence in refusing estoppel.
3. Francis Coralie: pure Kant, a level below which a person may not be reduced.
4. Navtej: constitutional morality against numbers, Kantian objection plus independence.
5. Unni Krishnan: capability, confined by dependency.
6. M.C. Mehta: corrective justice with a distributive turn in correlating compensation to capacity.
7. ADM Jabalpur: equivalence in the majority, independence in Khanna J.'s dissent, in one case.
8. Indira Nehru Gandhi: independence applied to a formally valid amendment. Sarla Mudgal: accepted standards defeating a technically available manoeuvre.

Test yourself

1. How do you tell which theory of justice a judgment rests on? By what it treats as a reason. Reasoning from aggregate consequences is utilitarian; from what a person is owed as a person, Kantian; from what could be justified to those affected, contractual; from the position of the worst off, Rawlsian; from what a person is able to do and be, capability-based; and from a standard the enactment itself cannot satisfy, the independence position.

2. Read Olga Tellis through the theories. Holding livelihood to be within the right to life is capability reasoning, since what matters is what the person can do rather than what he holds. Refusing estoppel against a fundamental right is Kantian, since a right attaching to a person as a person is not his to bargain away. Permitting the eviction after the monsoon with alternative sites is utilitarian in structure, weighing the city's interest against the dwellers' with mitigation.

3. Why is ADM Jabalpur the single most useful case for this module? Because the majority and the dissent state two of the three positions in one judgment. The majority reasons from the enactment alone with no standard beyond it, which is equivalence. Khanna J. reasons from a standard that the enactment cannot displace, holding that the State had no power to deprive a person of life or personal liberty without the authority of law even during an emergency, which is independence. What turns on the module's question is visible in the two opinions.

4. Why is M.C. Mehta a mixed case, and why is that worth saying? Because its frame is corrective justice, restoring a balance disturbed by a wrong, but correlating the measure of compensation to the magnitude and capacity of the enterprise is distributive reasoning, and Aristotle's corrective justice deliberately disregards the standing of the parties. Saying so shows that Indian courts use more than one conception in a single judgment, which is a stronger observation than arguing that they follow one theory.