The Relation between Law and Justice

Where Indian law stands

The Indian constitutional order is committed to the independence view in a qualified form, and the qualification matters.

The commitment. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

Facts. The head of a religious mutt in Kerala challenged Kerala land reform legislation, and the petition grew into a challenge to the Constitution (Twenty-fourth), (Twenty-fifth) and (Twenty-ninth) Amendments. Thirteen judges heard it.

Held. Parliament's power to amend under Article 368 is wide but not unlimited: it does not extend to altering the basic structure or essential features of the Constitution. Golak Nath was overruled so far as it had denied the power to amend Part III, but no amendment may damage or destroy the basic structure, and the lists given were expressly illustrative.

Why it matters here. A standard by which even a constitutional amendment is judged, and which is not found in the text of Article 368, is a standard independent of what the law provides. That is the independence position operating inside a positive legal system.

The qualification. The standard is not natural law at large. It is the Constitution's own scheme, as the Court reads it. Indian law does not permit a judge to strike down a law because he thinks it unjust; it permits him to strike it down because it offends a constitutional standard. So the independence is internal: justice enters through the Constitution rather than over it.

Where the dependency view is visible. Part IV. Article 37 makes the directive principles fundamental in governance and unenforceable, which is exactly the dependency position: a standard of justice that awaits legislation to become effective.

Where the equivalence view was tried and rejected. Section 4 of the Forty-second Amendment, in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

Facts. A sick textile undertaking was taken over and nationalised, and the Act placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976. Section 55 inserted clauses (4) and (5) into Article 368; section 4 widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19.

Held. Both were void. Clause (5) removed all limitations on the amending power and demolished the pillars on which limited government rests; clause (4) removed the courts' power to decide whether a limitation had been exceeded, and a limited power cannot be made unlimited by removing the means of enforcing the limit. The widened Article 31C destroyed the balance between fundamental rights and directive principles, which is itself a basic feature.

Why it matters here. Clause (5) asserted that there is no limit on the constituent power, which is the equivalence position at the constitutional level: whatever is enacted is valid because it is enacted. Its invalidation is the Indian rejection of that view.

Why the choice matters practically

It decides what a lawyer can argue. On equivalence, the only arguments are about what the law provides. On the other two, there are arguments about what it should provide, and on independence those arguments can be made in court.

It decides the status of an oppressive law. The question whether an official who enforced a valid but monstrous law did wrong is answered differently on each view.

It decides how far judicial creativity is legitimate. A court that treats justice as a standard over law will develop it; a court that treats them as identical will not. All of Module I follows from this choice.

It decides what the directive principles are. Statements of justice awaiting law, on the dependency view, which is how Article 37 reads.

A worked example

A statute provides that persons of a particular occupation may be evicted from public land without notice and without compensation.

On equivalence. The statute is the law; there is no standard beyond it; the eviction is just because it is lawful.

On dependency. The statute may be unjust, and the remedy is to change it. Meanwhile it binds.

On independence. The statute is measured against a standard beyond itself. In Indian terms that standard is constitutional: Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, held that livelihood is within Article 21 and that no estoppel runs against a fundamental right, and that removal without notice must be read as requiring a hearing.

What actually happens. The Indian answer is the third, with the qualification: the court does not say the statute is unjust, it says the statute offends Articles 14 and 21. That is independence, exercised through the Constitution.

Quick revision

1. Two questions: is there a standard of justice independent of law, and if so what is its relation to law?
2. Three answers: equivalence, dependency, independence.
3. Equivalence: Thrasymachus, Hobbes, Austin, and the Marxian account. Dependency: justice is distinct but inert without law. Independence: justice measures law.
4. The test question is what each says about a formally valid but unjust law.
5. Indian law is committed to independence in a qualified form: the standard is the Constitution's own scheme, not natural law at large.
6. Kesavananda is the commitment; Article 37 shows the dependency view operating for Part IV; Minerva Mills is the rejection of the equivalence position at the constitutional level.
7. The choice decides what a lawyer may argue, the status of an oppressive law, the legitimacy of judicial creativity, and the character of the directive principles.

Test yourself

1. State the two questions the module turns on and the three answers. Whether there is a standard of justice independent of what the law provides; and, if there is, what its relation to law is. The answers are equivalence, that justice is nothing more than the positive law of the stronger; dependency, that justice is distinct but depends on law for its realisation; and independence, that justice is prior to law and is the measure by which law is judged.

2. Distinguish the three by what each says about a formally valid but unjust law. On equivalence the question is confused, since there is no standard by which validity and justice could come apart. On dependency the law may indeed be unjust, but it binds and the remedy is legislative. On independence the law is defective as law, and a court applying the standard may refuse it effect.

3. Where does Indian law stand, and what is the qualification? It is committed to the independence view, since Kesavananda holds that even a constitutional amendment may be struck down for damaging the basic structure, a standard not found in the text of Article 368. The qualification is that the standard is internal: it is the Constitution's own scheme as the Court reads it, so a judge may not strike down a law because he thinks it unjust, only because it offends a constitutional standard.

4. Show each of the three positions somewhere in the Indian constitutional order. Equivalence was asserted by clause (5) of Article 368, inserted by section 55 of the Forty-second Amendment, which declared that there is no limitation on the constituent power, and was rejected in Minerva Mills. Dependency is Article 37, which makes the directive principles fundamental in governance and unenforceable, so that they await legislation to become effective. Independence is the basic structure doctrine of Kesavananda.