Just distribution and Rawls' theory of justice

Detail

1. From fair laws to fair distribution

• Social justice is more than equal and fair laws. It also asks whether a society's goods and services are shared fairly.
• Distributive justice means a fair sharing of goods, services and opportunities between nations, groups and individuals.
• Where inequality is serious and deep, equal laws alone do not help. The poor and the excluded start the race far behind.
• Redistribution of resources means the state takes direct action to create a level playing field (a situation where everyone starts on equal terms). It can move resources such as land, or it can provide services directly.

2. Indian examples of redistribution

Abolition of untouchability

• Untouchability is abolished, and practising it in any form is forbidden (Art. 17).
• The aim is to give Dalits equal access to temples, jobs, water sources and other public places.
• Laws that enforce this: the Protection of Civil Rights Act, 1955 (first called the Untouchability (Offences) Act, renamed in 1976), and the SC/ST (Prevention of Atrocities) Act, 1989.

Land reforms (a state subject)

• Zamindari abolition (early 1950s): intermediaries (people who collected rent between the cultivator and the state) were removed, and tillers dealt directly with the state.
• Land ceiling laws: a legal limit on how much land one family can own. The state takes the surplus land and gives it to landless families.
• Kerala: tenancy reforms in the late 1960s and 1970s ended landlordism and gave ownership rights to tenants and hutment dwellers.
• Operation Barga (West Bengal, 1978): the Left Front government recorded the names of sharecroppers (bargadars). Once recorded, they could not be evicted and had a legal claim to a fixed share of the crop.
• Constitutional shield: the First Amendment (1951) added Art. 31A and the Ninth Schedule (a list of laws protected from challenge on fundamental-rights grounds) to save land reform laws from court challenges.

Article 39(b)-(c): the constitutional basis for redistribution

• Art. 39 is a Directive Principle of State Policy (Part IV: guidelines the state must follow when making policy, though courts cannot enforce them).
• The state shall direct its policy towards securing:
• 39(b): "that the ownership and control of the material resources of the community are so distributed as best to subserve the common good" [5]

• 39(c): "that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment" [5]

• Art. 39 appeared as Article 31 of the Draft Constitution (1948). The Constituent Assembly debated and adopted it on 22 November 1948. Socialist members argued that the wording did not go far enough [5].

• Art. 31C gives some protection to laws that give effect to Art. 39(b)-(c).

The latest ruling on Art. 39(b): Property Owners Association v State of Maharashtra (5 November 2024, 2024 INSC 835)

• A nine-judge bench heard the case. Seven judges signed the main judgment written by CJI D.Y. Chandrachud [6].
• Key holdings:
• Private resources can fall within "material resources of the community", but not every privately owned resource does [6].
• The Court rejected Justice Krishna Iyer's wide view in Ranganatha Reddy (1977), which treated all private wealth as a community resource. Sanjeev Coke (1983) was wrong to rely on that minority opinion [6].
• Whether a resource is covered must be decided case by case. The tests are: (a) the nature of the resource, (b) its impact on the community's well-being, (c) how scarce it is, and (d) what happens if it is concentrated in private hands. The Public Trust Doctrine (the state holds natural resources as a trustee for the people) can help decide [6].
• Examples of covered resources: forests, ponds, wetlands, spectrum, natural gas, mines and minerals [6].
• "Distribution" has a wide meaning. It may include vesting the resource in the state, or nationalisation [6].

• Art. 31C remains in force to the extent it was upheld in Kesavananda Bharati (1973) [6].

• Dissent: Justice Sudhanshu Dhulia supported the Krishna Iyer view. He quoted Ambedkar's speech of 25 November 1949: India was entering "a life of contradictions", with equality in politics but inequality in social and economic life [6].

3. Why we need a theory

• Redistribution often makes people angry. Reservation proposals have led to protests and violence. Example: the Mandal agitation (1990), after the V.P. Singh government announced 27% reservation in central government jobs for Other Backward Classes (OBCs), based on the Mandal Commission report (1980).
• Each side claims that justice is on its side. A theory of justice helps us look at these questions calmly and by reason, not by passion.

4. Rawls' theory of justice

The book. John Rawls, A Theory of Justice (1971). Rawls called his idea "justice as fairness".

Original position

• This is an imagined starting point. People meet to choose the basic rules of their society before they know where they will stand in it.

Veil of ignorance

• In the original position, people choose rules behind a veil of ignorance. They do not know their family, caste, class, gender or talents.
• Britannica describes them as cut off from their social, economic and historical circumstances, and even from their basic values and goals [2].
• So they cannot shape the rules to favour their own group over others [2].

How the reasoning works

• The starting point: each person acts from rational self-interest (clear thinking about their own good). No one needs to act from morality or benevolence.
• Step 1: anyone could be born among the worst-off. So each person asks how the rules will treat the worst-off.
• Step 2: each person therefore votes to secure education, health and shelter for everyone.
• Step 3: each person also avoids weakening the better-off, because they might be born privileged. This makes society as a whole better off.
• The result: fairness comes from rational action alone. Rawls' system needs no heroism or self-sacrifice.

Rawls' two principles

Principle	Content	Priority
1. Equal liberty	Every person has an equal right to the widest basic liberties (speech, conscience, vote, the person), as long as others have the same liberties	Lexical priority: it must be fully met before Principle 2. Liberty cannot be traded for economic gain
2(a). Fair equality of opportunity	Offices and positions are open to all. People with similar talent and effort get similar chances, whatever class they are born into	Comes before 2(b)
2(b). Difference principle	Social and economic inequalities are just only if they bring the greatest benefit to the least advantaged	Applies last

• Lexical priority means a strict order, like words in a dictionary. A later principle comes into play only after an earlier one is fully met.
• Difference principle: an inequality is allowed only if it makes the worst-off better off than they would be under any other arrangement, including an equal distribution [3].
• Rational people in the original position would agree to this principle, together with fair equality of opportunity and equal basic liberties [3].
• Maximin is the decision rule behind it. You compare the possible outcomes of each option, find the worst outcome of each, and choose the option whose worst outcome is the best.

Indian echoes of Rawls

• Reservations: Arts. 15(4), 16(4) and 46. These reflect fair equality of opportunity.
• Progressive taxation: higher income tax rates on higher incomes. The gains of the better-off pay for services for the worst-off (difference principle).
• Targeted welfare: support aimed at the poorest, such as food subsidies and housing schemes for the poor.

5. Critiques of Rawls

(a) Nozick: the entitlement theory of justice

• Robert Nozick's book is Anarchy, State, and Utopia (1974). Nozick was a libertarian and Rawls' colleague at Harvard [4].

• Entitlement theory of justice: a distribution of holdings is just if everyone is entitled to what they have [4]. A holding is legitimate if it came through: 1. just acquisition: taking something that nobody owned; 2. just transfer: voluntary exchange or gift; 3. rectification: correcting past injustices [4].

• Historical, not patterned: Nozick judges a distribution by how it came about. Rawls judges it by its final shape, which Nozick calls a pattern such as "benefit the worst-off".

• Minimal state: a state whose powers are limited to protecting citizens against violence, theft and fraud [4]. Nozick argued that any state with wider powers violates citizens' natural rights [4].
• So taxation for redistribution beyond the minimal state is unjust.
• Wilt Chamberlain example:
• Start with any "just" pattern.
• Fans freely pay extra to watch the basketball star Wilt Chamberlain play, and he becomes rich.
• Each transfer was voluntary, so the new unequal result must also be just.
• Keeping any fixed pattern therefore needs constant interference with liberty.

(b) Communitarians

• Michael Sandel, Liberalism and the Limits of Justice (1982), says Rawls imagines an "unencumbered self": a person who exists before, and apart from, family, community and shared values.
• Real people are formed by their communities. A just society cannot ignore shared ideas of the good. (See political-theory-liberty-rights.)

(c) Amartya Sen

• Sen's book is The Idea of Justice (2009).
• He calls Rawls' method "transcendental institutionalism": a search for the perfectly just set of institutions.
• Sen prefers a comparative, realisation-focused approach. It compares the real lives people lead and asks which choice reduces injustice.
• We can remove clear injustices, such as famine or bonded labour, without first agreeing on a perfect society.

(d) Feminists

• Susan Moller Okin, Justice, Gender, and the Family (1989).
• Rawls left the family outside the scope of justice. Yet the family is where unequal unpaid work and gender roles begin.

(e) Utilitarians

• Utilitarianism (Bentham, Mill) judges rules by the greatest total good, or the greatest happiness of the greatest number.
• Rawls replies that maximising the total can sacrifice a minority. His theory protects the worst-off first.

Thinker	Key idea	Main objection to Rawls
Nozick (1974)	Entitlement, minimal state	Redistribution violates rights
Sandel (1982)	Situated self	Unencumbered self is unreal
Okin (1989)	Justice inside the family	Family left out
Sen (2009)	Comparative justice	Perfect institutions are neither needed nor enough
Utilitarians	Maximise total welfare	Rawls ignores the total sum

Prelims Hooks

• A Theory of Justice: John Rawls, 1971. Anarchy, State, and Utopia: Robert Nozick, 1974. The Idea of Justice: Amartya Sen, 2009. Justice, Gender, and the Family: Susan Okin, 1989.
• Veil of ignorance: people choose rules without knowing their caste, class, family or talents. They act from rational self-interest, not benevolence.
• Difference principle: inequality is allowed only if it most benefits the least advantaged (maximin). Trap: Rawls does not demand strict equality.
• First principle (equal liberty) has lexical priority over the second principle.
• Entitlement theory: justice in acquisition, transfer and rectification. A historical theory, not a patterned one. The Wilt Chamberlain example is Nozick's.
• "Unencumbered self" is Sandel's (communitarian) critique. "Transcendental institutionalism" is Sen's.
• Art. 39(b): ownership and control of material resources distributed to serve the common good. Art. 39(c): no concentration of wealth to the common detriment. Both are DPSPs (Part IV).
• Operation Barga: West Bengal, 1978, recording of sharecroppers.
• Property Owners Association (2024): nine-judge bench. Not all private property is a "material resource of the community". The Krishna Iyer view in Ranganatha Reddy was rejected.
• Art. 17 abolishes untouchability. Mandal agitation: 1990, over 27% OBC reservation.

Mains Points

• Rawls as a defence of Indian affirmative action: behind the veil of ignorance, no rational person would accept a caste system they might be born at the bottom of. Reservations, progressive tax and targeted welfare can be justified through fair equality of opportunity and the difference principle. This is fairness from reason, not charity, which helps answer the "merit" objection raised during the 1990 Mandal agitation.
• Liberty vs redistribution: Nozick says redistribution beyond a minimal state violates property rights. India's Constitution moved the right to property out of the fundamental rights and made it Art. 300A (44th Amendment, 1978). In 2024, the Supreme Court required case-by-case tests under Art. 39(b) [6]. This is a middle path between a Krishna Iyer-style wide view and a Nozickian minimal state.
• Ideal vs comparative justice (Sen): Indian policy works better by removing visible injustices than by designing a perfect order. Examples include ending bonded labour, manual scavenging and malnutrition, and implementing land reforms as in Kerala and West Bengal.
• Limits of Rawls: Okin's critique shows that justice must reach into the family, for example women's unpaid work and inheritance. The communitarian critique reminds us that Indian identities (caste, religion, region) shape claims to justice, so a purely individual view of justice falls short.