Dependency Theories of Justice

The illustration. 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 v. State of Karnataka, AIR 1992 SC 1858, had gone in recognising a fundamental right to education.

Held. The right to education flows from the right to life under Article 21, but its content is to be determined in the light of the directive principles in Articles 41, 45 and 46. Every child therefore has a fundamental right to free education up to the age of fourteen years; beyond that age the right is subject to the limits of the State's economic capacity and development. A scheme regulating admissions and fees in private professional colleges was framed.

Why it matters here. The confinement at fourteen years is the dependency point made judicially: a standard of justice becomes an operative right only so far as the State can deliver it, and beyond that it remains a directive awaiting law. Education later became an enforceable right by amendment, as Article 21A, which is the dependency completed.

A second illustration. Vishaka v. State of Rajasthan, AIR 1997 SC 3011.

Facts. A class action was brought under Article 32 by social activists and non-governmental organisations for the enforcement of the fundamental rights of working women, the immediate cause being the alleged gang rape of a social worker in a village in Rajasthan. There was no Indian legislation on sexual harassment at the workplace.

Held. Sexual harassment at the workplace violates Articles 14, 15, 21 and 19(1)(g), since the right to carry on an occupation depends on a safe working environment. In the absence of legislation the Court laid down binding guidelines defining sexual harassment and prescribing preventive steps, complaints machinery and employer duties, drawing on the Convention on the Elimination of All Forms of Discrimination against Women, and directed that they be treated as law declared under Article 141 until legislation was enacted.

Why it matters here. Before 1997 the injustice was obvious and nothing followed from it, because there was no rule, no forum and no remedy. The Court supplied all three provisionally, and Parliament supplied them permanently in 2013. The whole sequence is a demonstration that justice needed law, and that until it had law it did nothing.

The strengths of the position

It is realistic. It explains why societies that agree about justice in the abstract still argue endlessly, and why the argument is settled by legislation.

It respects the separation of powers. The choice among defensible rules belongs to the elected branches, which is the answer to the democratic objection in [The Limits of Judicial Activism and the Charge of Overreach].

It explains the directive principles. No other theory accounts as well for a constitutional provision that declares a standard fundamental and unenforceable in the same breath.

It avoids both extremes. It does not reduce justice to power, and it does not license every judge to apply his own conception of justice against an enactment.

The criticisms

1. It leaves the victim of an unjust law without a remedy. If the standard operates only through law, a person injured by a law has nothing to appeal to. This is the objection independence theorists press, and Indian law has largely accepted it, which is why Article 13, Article 32 and the basic structure doctrine exist.

2. It underestimates courts. Vishaka shows a court supplying the rule, the forum and the remedy where the legislature had not, so the dependency is on law and not necessarily on legislation, and judicial law-making weakens the position considerably.

3. The line between it and independence is unstable. Once a court reads a directive principle into Article 21 and enforces it, as Unni Krishnan did, the unenforceable standard has become enforceable without any legislation, which is dependency collapsing into independence.

4. It can excuse inaction. Saying that justice awaits law is an answer available to a State that has had decades to legislate.

A worked example

A community's water source is polluted by an upstream factory. There is no statutory limit for the pollutant.

Is there an injustice? On any account, yes.

On the dependency view. Nothing follows until there is a rule fixing a limit, a forum to decide whether it was exceeded, and a remedy. The proper course is legislation.

What Indian law did. It did not wait. Subhash Kumar v. State of Bihar, AIR 1991 SC 420, held that Article 21 includes the right to enjoyment of pollution free water and air, and Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715, adopted the precautionary and polluter pays principles as part of the law of the land.

What that shows. The dependency thesis is correct that justice needs law. It is wrong if it assumes that only a legislature can supply it. In India the courts have repeatedly supplied the rule, the forum and the remedy themselves, which is why the position sits uneasily in an Indian answer unless the qualification is stated.

Quick revision

1. Dependency: justice is distinct from law but depends on law to be realised. A middle position between equivalence and independence.
2. Three dependencies: determinacy, authoritative determination, and enforcement.
3. Against equivalence, justice is a standard; against independence, it has no institutional voice of its own and the remedy for an unjust law is legislative.
4. Article 37 is the position written into a constitution: fundamental in governance, a duty of the State in making laws, and unenforceable by any court.
5. Unni Krishnan confines the right at fourteen by reference to capacity; Article 21A later completes the dependency by amendment.
6. Vishaka shows the whole sequence: obvious injustice, no rule, forum or remedy, judicial supply, then legislation in 2013.
7. Criticisms: no remedy for the victim of an unjust law; courts can supply what legislatures do not; the line with independence is unstable; and it can excuse inaction.

Test yourself

1. State the dependency position and name the three dependencies. That justice is distinct from law but depends on law for its realisation, so that justice supplies the standard and law supplies the machinery. The dependencies are determinacy, since a standard does not fix the rule that applies it; authoritative determination, since without a forum each party remains judge in his own cause; and enforcement, since a determination not enforced leaves the wronged party where he was.

2. Why is Article 37 the clearest statement of the position in any constitution? Because it declares the directive principles fundamental in the governance of the country and a duty of the State to apply in making laws, while providing that they are not enforceable by any court. That is a standard of justice declared to be fundamental and made operative only through legislation, which is the dependency thesis in a single provision.

3. Trace the Vishaka sequence and say what it demonstrates. Before 1997 sexual harassment at the workplace was plainly unjust and nothing followed, because there was no rule, no forum and no remedy. The Court held it to violate Articles 14, 15, 19(1)(g) and 21, laid down binding guidelines drawing on CEDAW, and directed that they be treated as law declared under Article 141 until legislation. Parliament legislated in 2013. It demonstrates that justice needed law, and that until it had law it achieved nothing.

4. Give the strongest criticism of the position in an Indian context. That it assumes only a legislature can supply the rule, the forum and the remedy, whereas Indian courts have repeatedly supplied all three. Vishaka composed a code, Subhash Kumar read pollution free water into Article 21, and Unni Krishnan converted an unenforceable directive into an enforceable right for children, which is dependency collapsing into independence without any legislation at all.