Law & Justice in Globalizing World Project on

RELEVANCE OF

JOHN RAWL’S THEORY OF JUSTICE

IN GLOBALIZED WORLD

Submitted in partial fulfillment of

LLM degree

UNIVERSITY INSTITUTE OF LEGAL STUDIES

Submitted to: Submitted by:

Dr. Sangeeta Bhalla Ms. Kriti (1915)

Dr. Tanmeet Ms. Sukriti Kaur (1435)

LLM (1 YEAR)

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 ACKNOWLEDGEMENT

I would like to express my greatest gratitude to the people who have helped;
supported me throughout my project. I am grateful to my teacher, Dr Sangeeta
Bhalla and Ms. Tanmeet, for their continuous support for the project, from initial
advice; contacts in the early stages of conceptual inception; through ongoing
advice; encouragement to this day. I wish to thank my parents for their undivided
support and interest who inspired me and encouraged me to go my own way,
without whom I would be unable to complete my project. At last but not the least I
want to thank my friends who appreciated me for my work and motivated me and
finally to God who made all the things possible.

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 INTRODUCTION

Justice is the most important and most discussed objective of society and State. It is the basis of
orderly human living. Justice demands the regulation of selfish actions of people for securing a
fair distribution, equal treatment of equals, and proportionate and just rewards for all. It stands
for harmony between individual interests and the interests of society.

Justice is of central importance to political theory. In defending or opposing laws, policies,

Justice stands for rule of law, absence of arbitrariness and a system of equal rights, freedoms and
opportunities for all in society. In fact, Justice stands recognized as the first virtue or ideal or
objective to be secured. In its Preamble, the Constitution of India gives first priority to the
securing of social, economic and political justice for all its people. In contemporary times Justice
stands conceptualized basically as Social Justice.

Justice is a complex concept and touches almost every aspect of human life. The word Justice
has been derived from the Latin word Jungere meaning ‗to bind or to tie together‘. The word
‗Jus‘ also means ‗Tie‘ or ‗Bond‘. In this way Justice can be defined as a system in which men are
tied or joined in a close relationship. Justice seeks to harmonise different values and to organise
upon it all human relations. As such, Justice means bonding or joining or organising people
together into a right or fair order of relationships.

DEFINITIONS OF JUSTICE

Salmond: ―Justice means to distribute the due share to everybody.‖

Dr. Raphael: ―Justice protects the rights of the individual as well as the order of society.‖

C.E. Merriam: ―Justice consists in a system of understandings and a procedure through which
each is accorded what is agreed upon as fair.‖

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TYPES OF JUSTICE:

1. Social Justice: In contemporary times a large number of scholars use prefer to describe
the concept of Justice as Social Justice. Social Justice is taken to mean that all the people
in a society are to be equal and there is be no discrimination on the basis of religion,
caste, creed, colour, sex or status. However, various scholars explain the concept of
Social Justice in different ways. Some hold that social justice is to allot to each individual
his or her due share in the social sphere. According to some others, distribution of social
facilities and rights on the basis of law and justice constitutes social justice. Social
democrats and modern liberal thinkers define social justice as the attempt to reconstruct
the social order in accordance with moral principles. Attempts are to be continuously
made to rectify social injustice. It also stands for a morally just and defensible system of
distribution of reward and obligations in society without any discrimination or injustice
against any person or class of persons. In the Indian Constitution several provisions have
been provided with a view to secure social economic and political justice. Untouchability
has been constitutionally abolished. Every citizen has been granted an equal right of
access to any public place, place of worship and use of places of entertainment. The state
cannot discriminate between citizens on the basis of birth, caste, colour, creed, sex, faith
or title or status or any of these. Untouchability and apartheid are against the spirit of
social justice. Absence of privileged classes in society is an essential attribute of social
justice.

2. Economic Justice: Economic Justice is indeed closely related to social justice because
economic system is always an integral part of the social system. Economic rights and
opportunities available to an individual are always a part of the entire social system.
Economic justice demands that all citizens should have adequate opportunities to earn
their livelihood and get fair wages as can enable they to satisfy their basic needs and help
them to develop further. The state should provide them economic security during illness,
old age and in the event of a disability. No person or group or class should be in a
position to exploit others, nor get exploited. There should be fair and equitable
distribution of wealth and resources among all the people. The gap between the rich and
the poor should not be glaring. The fruits of prosperity must reach all the people. There

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 are present several different views regarding the meaning of economic justice. The
liberals consider open competition as just and they support private property. On the other
hand, the socialists seek to establish complete control of society upon the entire economic
system. They oppose private property. Whatever be the ideology or the system, one thing
is clear and that is that all citizens must be provided with basic necessities of life. All
citizens must have their basic needs of life fulfilled (Food, clothing, shelter, education,
health and so on).

3. Political Justice: Political justice means giving equal political rights and opportunities
to all citizens to take part in the administration of the country. Citizens should have the
right to vote without any discrimination on the basis of religion, colour, caste, creed, sex,
birth or status. Every citizen should have an equal right to vote and to contest elections.
Legal justice has two dimensions-the formulation of just laws and then to do justice
according to the laws. While making laws, the will of the rulers is not to be imposed upon
the ruled. Laws should be based on public opinion and public needs. Social values,
morality, conventions, the idea of just and unjust must be always kept in view. When the
laws do not meet the social values and rules of morality, citizens neither really accept nor
abide by laws. In this situation, the enforcement of laws becomes a problem. Laws are
just only when these are accepted not out of fear of external power but when inspired by
internal feeling for the laws being good, just and reasonable. Legal Justice means rule of
law and not rule of any person. It includes two things: that all men are equal before law,
and that law is equally applicable to all. It provides legal security to all. Law does not
discriminate between the rich and the poor. Objective and due dispensation of justice by
the courts of law is an essential ingredient of legal justice.

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 THE THEORY OF JUSTICE: JOHN RAWLS

ABOUT JOHN RAWLS

John Rawls, (born Feb. 21, 1921, Baltimore, Md., U.S.—died Nov. 24, 2002, Lexington, Mass.),
American political and ethical philosopher, best known for his defense of
1
egalitarian liberalism in his major work, A Theory of Justice (1971). He is widely considered the
most important political philosopher of the 20th century. 2

THE ROLE OF JUSTICE

John Rawls theory of justice had come up at a time when all what everyone talked about was
regarding maximising the welfare of society or the utilitarian concept of maximising the
happiness of the majority of the people, ‗justice‘ as a concept was least talked about, least
discussed about. Rawls‘s theory of justice was in a way an alternative to the classical utilitarian.

Rawls‘ states that "justice is the first virtue of social institutions, as truth is of systems of
thought," therefore, unjust institutions and laws must be reformed. Justice means each individual
has equal rights and liberties, which cannot be diminished or denied for the benefit of any other
person or even for society as a whole. He calls this "an inviolability founded on justice." Injustice
is permissible only when it offers protection from a still larger injustice. These ideas constitute
the notion of "the primacy of justice".

While societies and individuals almost always have some concept of justice, there is usually
disagreement between their various conceptions of justice. In other words, everyone agrees it is
important to uphold justice, but there is much disagreement about the specific principles that
define what is just and what is unjust. This lack of agreement on what constitutes justice is no
trivial matter. A society's structure reflects its conception of justice, and so the idea of justice has
significant effects on the life of each citizen. When there is a shared public conception of justice
in a society, that society is said to be well ordered.

1
. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).
2
Brian Duignan, ‗John Rawls‘, Encyclopedia Britannica. URL:https://www.britannica.com/biography/John-Rawls
Accessed on: November 25, 2019

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Inequality among individuals is a feature of every society. The distribution of advantages and
burdens among citizens determines the very structure of society by shaping its political,
economic, and social institutions. The principles of social justice should address these
fundamental inequalities by regulating the distribution of advantages and burdens, creating
"distributive justice."

Rawls theory of distributive justice is based on the idea that society is a system of cooperation
for mutual advantage between individuals. As such, it is marked by both conflicts between
differing individuals‘ interests and an identity of shared interest. Principles of justice should
‗define the appropriate distribution of the benefits and burdens of social cooperation. One must
not fail to observe the fact that Rawls‘s theory of justice as fairness, stretches its roots from the
social contract theory, Rawls argues that it is necessary to distinguish between the genuine
judgements about justice (which people have) and their subjective, self-interested views. After
arriving at those objective principles, it should be measured against our own judgements, there
will be inevitable distinction when one resorts to such measurement, therefore, it is important to
modify our own judgement in such a way that a stage of equilibrium could be reached in which
these two situations are similar; this is the situation of ‗reflective equilibrium‘

Rawls's theory of "justice as fairness" takes the form of a social-contract theory. Historically,
philosophers such as Locke, Rousseau, and Kant advocated founding societies on the basis of an
agreement, or contract, which specified the principles of the government. In justice as fairness,
the foundational idea is not specific principles but rather the conditions under which people
arrive at these principles. These conditions are for a hypothetical situation known as the "original
position." 3 Persons in the original position hold a meeting to choose the principles that will
specify the basic structure of society.

3
Arneson , Richard, ―Equality of opportunity‖ The Standard Encyclopedia of Philosophy (Summer 2015
edn.), Edward N. Zalta (ed.), available at: http://plato.stanford.edu/archives/summer 2015/entries/equal-
opportunity/

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THE ORIGINAL POSITION AND JUSTIFICATION

A conception of justice is justified when it would be favored by the persons in the original
position. These persons are equal, moral persons, meaning they possess "a conception of their
good" and are "capable of a sense of justice." Because these persons are disposed to choose
rationally, "this connects the theory of justice with the theory of rational choice."

While the original position is hypothetical, it provides a perspective that can be adopted by
anyone for the purpose of checking if their own convictions about what constitutes justice are
indeed justifiable. It is easy to see that certain ideas are unjust, such as slavery, but not every
conviction is so obvious. Rawls recommends checking such convictions against the point of view
of the original position. If the original position would not permit a certain conviction, the
conviction can be modified and rechecked against the perspective of the original position. This
process of modification and rechecking can be repeated until the conviction falls into line with
the principles of justice. This end point is a state known as "reflective equilibrium," wherein "at
last our principles and judgments coincide."

THE VEIL OF IGNORANCE

The persons in the original position are rational, mutually disinterested, and under a "veil of
ignorance." The veil of ignorance means they have general knowledge about humanity and
society but are completely ignorant about themselves. They do not know what their particular
interests, goals, psychological makeups, talents, and difficulties are, nor do they have
information regarding their own social class, ethnicity, sex, or any other distinguishing
characteristic. They know they each have beliefs, interests, and goals, but not the specific
content. This veil of ignorance creates a condition of equality that ensures personal bias will not
influence their choices. The persons are rational, meaning they wish to pursue "the most
effective means to given ends." Their mutual disinterest means they are not moved by
benevolence but rather seek to advance their own interests, whatever those may be.

The limitations imposed by the original position mean the options of choice are themselves
restricted. There are five:

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  First, the veil of ignorance ensures that the principles chosen will be generally applicable,
meaning they are not tied to any particular external information or circumstances. This
requirement of generality ensures that they will be unconditional and applicable in any
place and time.

 Additionally, there is an upper limit on how complex the principles may be because they
must apply to all persons regardless of their capacity for intellectual understanding. This
is the requirement of universality.

 The third condition is that the principles have publicity, meaning they are chosen with the
understanding that they will be known to all persons. As such, the principles "should
have desirable effects and support the stability of social cooperation."

 Fourth, the principles must be able to assign a priority order to claims that conflict with
one another.

 Fifth, the principles chosen must have finality, meaning they are suitable to be the highest
authority within society. The principles "override the demands of law and custom, and of
social rules."

These five conditions serve to define a "conception of right," and while they do not exclude any
traditional theories of justice, they do exclude the forms of egoism known as "general egoism,"
"first-person dictatorship" and "free-rider egoism." General egoism, when each individual does
what it takes to advance their own interests, is prohibited by the fourth constraint of ordering
claims and is in fact what the parties would be forced to choose if they were unable to come to a
consensus otherwise. First-person dictatorship and free-rider egoism, wherein a person enjoys
the benefits of social cooperation without fulfilling their obligations to the appropriate
institutions, are excluded by the condition of generality.

The original position is designed with the goal of pure procedural justice in mind. It also seeks to
produce a conception of justice that will "generate its own support" by tending to inspire a desire
to comply and uphold its principles in those who are subject to them. The embrace of ideas of
justice by a population produces stability within society. The veil of ignorance creates the
conditions that ensure that justice as fairness will be upheld by citizens and therefore society will

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be stable. By eliminating the parties' specific knowledge of themselves and the "circumstances of
their own society," while at the same time allowing these persons to have knowledge of "general
facts about human society" (such as an understanding of economics and politics), obstacles that
stand in the way of these goals are removed. It becomes impossible for any party to bargain for
their own advantage or for individuals to join together in coalitions bound by similar interests.

Because the veil of ignorance makes all the parties in this hypothetical situation equal, each
would presumably choose the same principle and, therefore, a consensus could be reached. The
implication is that the original position can be considered from the viewpoint of an individual
selected at random from all those assembled. Additionally, the original position is formulated to
be a point of view that will lead to the same conclusion of principles no matter by whom it is
adopted, where they live, or in what era they live. Together, these constraints serve to simplify a
very complex choice to a manageable level while ensuring that the principles chosen are the only
ones that would earn the consensus agreement of moral and equal persons.

RAWLS PRINCIPLES OF JUSTICE:

1. "Each person is to have an equal right to the most extensive total system of equal basic
liberties compatible with a similar system of liberty for all".

2. "Social and economic inequalities are to be arranged so that they are both:

(a) to the greatest benefit of the least advantaged, consistent with the just savings
principle, and

(b) attached to offices and positions open to all under conditions of fair equality of
opportunity."

Interpretation of First Principle

Rawls‘s basic principles of justice are generalized means of securing generalized ends. It
primarily deals with the aspect of distribution of wealth, if behind the veil of ignorance the
people are confronted with the question as to whether they will accept the utilitarian principle of
distribution of wealth. The answer will be a certain no, because anyone under the veil of
ignorance will like to be treated with dignity, once the veil of ignorance goes up. He will

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stipulate basic liberties such as right to life, liberty, freedom of consciousness and religion,
assembly etc and these basic liberties will similarly be demanded by a member of minority
community as well, he will not take chance of ending up a member of oppressed minority being
tyrannized by a majority. This brings us before the ‗first principle‘ of Rawls i.e., the ‗Liberty
Principle‘. Rawls in his book Political Liberalism included this principle in a form of guarantee
of fair value of the political liberties. 4 The fair value of political liberties requires that ―citizens
similarly gifted and motivated have roughly an equal chance of influencing the government‘s
policy and of attaining positions of authority irrespective of their economic and social class.
Thus ensuring that members of a social group are able to participate in the political process
which conforms to the principle of equality.

Interpretations of the Second Principle

The second principle of justice as fairness states that inequalities must be to "everyone's
advantage" while positions and offices must be "equally open." The ambiguity of this language
means that, depending on interpretation, four different social systems could be said to satisfy the
principle. It is possible to interpret "to everyone's advantage" as referring to either the "principle
of efficiency" or the "difference principle."

In this context the principle of efficiency claims that a social system is efficient when there is no
possible change to the rules of primary-goods distribution that could advantage at least one
person without disadvantaging at least one person.

When "everyone's advantage" is interpreted as the "principle of efficiency," and "equally open"
is taken to mean "equality as careers open to talents," the resulting system is called the "system
of natural liberty." This system provides everyone the same legal access to opportunity and a free
market economy. Over time, injustice can enter this system when the theoretical equality of
opportunity becomes practically impossible for some despite its legal basis. In the free market,
those who have greater natural assets like intelligence as well as better luck tend to accumulate
wealth and power, which gives them a competitive advantage of opportunity compared to those
who have not accumulated wealth. To correct for this occurrence, a liberal interpretation seeks to
level the social playing field by replacing "equality as careers open to talents" with "the principle

4
John Rawls, Political Liberalism 358(Columbia University Press, New York, 1993).

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of fair equality of opportunity"—thereby instituting social protections to ensure that social class
does not determine actual opportunity. Nonetheless, this liberal interpretation must be rejected
because it still makes the arbitrary distribution of natural talent the basis of wealth. A third
system, natural aristocracy, limits the advantages of the naturally blessed to those that can be
used to help the disadvantaged. Because the "natural lottery" of genetic and social circumstances
is arbitrary, it cannot provide a moral basis for a just society.

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 PROBLEM WITH RAWLS’ THEORY OF JUSTICE

Briefly, the main criticisms are as follows.

a) Rawls‘ theory of justice has been framed in the background of liberal capitalist system. There
is a general grievance against the capitalist system that the division of society into clear-cut
classes, ownership of the means of production by very few persons, gross inequality of
income between the classes etc. create injustice and the rectification of this situation was
strongly felt. Rawls‘ theory of justice was a type of palliative to this condition. David Easton
wanted to justify the capitalist system by his behaviouralism which indirectly stated that
liberal political system possessed some self regulatory mechanisms which could withstand
the onslaught on capitalism. Rawls justified the inequalities in the distribution of income,
wealth and privileges on the ground that it might be in the advantages to all. He does not
utter a single word about the change of basic structure of society. He has introduced some
concepts such as ―veil of ignorance‖ ―reflective equilibrium‖ etc. to elaborate his core ideas
and support the existing liberal economy‘s basic structure. Our humble submission is so long
as the capitalist system remains intact justice in real sense will remain a far cry.
b) Libertarians object that the Difference Principle involves unacceptable infringements on
liberty. For instance, the Difference Principle may require redistributive taxation to the poor,
and Libertarians commonly object that such taxation involves the immoral taking of just
holdings.
c) The fiction lays in that the social contract theories which imagine that contracting agents who
design the basic structure of society are ―free, equal and independent‖ and the citizens whose
interests they represent are fully cooperating members of the society over a complete life. In
fact, they are rational beings. Therefore, it is clear that people with severe disabilities and
mental impairment cannot be a part of such social contract. It therefore implies that people
with severe disabilities are handled only after the basic institutions of the society are
designed. And hence, people with disabilities are not those for whom the society‘s
institutions are structured.5

5
Victor Gurevitch, "Rawls on Justice," Review of Metaphysics 28 (March 1975): 507-510

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The disability recognizes two basic issues:

i. Fair treatment to people with impairment. Many of them need a different kind of
environment to lead productive life.
ii. The burden on people who provide for care – the recognition of their work.

These issues cannot be ignored only on the ground that it is caused only to a small number of
people. Disabilities come in various forms. It is not only children and adults who need extensive
care for lifelong but there may be young adults who are difficult to handle as they are more
defensive and angry at times. Disabilities can be temporary as well and there may be dependency
on others – after surgery or severe injury, period of depression, mental stress. We must recognise
the problem of respecting and including people with impairment and also need to provide
adequate care to them. It should be remembered that the stake of many people‘s life, respect
health depends on the choice we make. The needs of these people should be met in such a way
that the dignity of the recipient (people with impairment) is also protected.
Also, large amount of care and work done for the people with impairment, usually by their
family members and without pay, is not at all recognised by the society. It is assumed that this
work will be done by the women only ‗out of love‘. They are not asked to do this but it is
assumed that that this is their job. This in turn affects the productivity of women in the economic
scenario and put larger burden upon the women.

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 SOME RECENT EXAMPLES WHERE WE CAN SEE THE GLIMPSE OF
THESE PRINCIPLES:

Rawls kept liberty in the most prioritized position. Liberty, according to him, is the first principle
of justice. As he says: Each person is to have an equal right to the most extensive basic liberty
compatible with a similar liberty for others.

Nowadays, people have started keeping liberty at the top most position. Recently, it has been
allowed even ‗transgender‘ to contest in the beauty pageant. It is purely a sign of ‗liberty‘ where
people have chosen liberty at the cost of other traits.

Rawls never said that there should not be any inequality among the members of the society rather
he accepted the social and economic inequalities are acceptable only if they qualify the following
two tests:

(a) they are to be of the greatest benefit to the least-advantaged members of society (the
difference principle).

(b) offices and positions must be open to everyone under conditions of fair equality of
opportunity.

One very recent example is women reservation bill. Here women are being given preference over
men because women in India have been considered to be the lesser advantaged members on the
society but then at the same time men are not completely ousted from the race.
One the same lines if we check out Art 17 of the Indian Constitution, we will find the same
principle running. Untouchability is a social evil and it has not been promoted because it is no
way benefiting the least advantaged members of the society.
Similarly, the recent declaration by Government regarding RTE (Right to Education) where it is
allowed a reservation of 25% to poor children, even in private school is another example where it
is promoted to benefit the least advantaged members of the society.

ROLE OF THE THEORY OF JUSTICE BY RAWLS IN INDIA

The Indian Constitution was framed much before the coming of the book ‗The Theory of Justice‘
but it seems as if there is some co-relation between the two. In fact, the very two principles of

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justice as preferred by Rawls seem to completely fit in the Indian Constitution. It may be that
Rawls got influenced by the Indian Constitution but the way in which various Fundamental
Rights have been interpreted by the Supreme Court of India in the latter stages seems to reflect
the ideas of Rawls. Interpretation of Art 14, 15, 16 and 21 shows the influence of Rawlsian
approach.
The first principle of justice as propounded by Rawls has its influence on the interpretation of
Art. 14 in the case of Re Special Courts Bill, wherein Chandrachur, J. Observed:
―The underlining principle of the guarantee of Art.14 that all persons similarly circumstanced
should be treated alike both in privileges conferred and liabilities imposed.‖
Art.14 does not mean that all laws must be general in character or that same law should apply to
all persons or that every law must have universal application, for all persons are not by nature,
attainment and circumstances, in the same positions. The State can treat different persons
differently if circumstances justify such treatment. In fact, identical treatment in unequal
circumstances would amount to inequality. The legislature must possess power to group persons,
objects and transactions with a view to attain specific aims. So, a reasonable classification is not
permitted but necessary if society is to progress.
Class legislation is that which makes an improper discrimination by conferring particular
privileges upon a class of person arbitrarily selected. And no reasonable distinction can be found
justifying the inclusion of one or exclusion of other from such privilege. While Art.14 forbids
class legislation, it permits reasonable classification of persons, objects and transaction by the
legislature for the purpose of achieving specific ends as was held in State of A.P. v. N.R.Reddy6.

In E.P.Royappa v. State of Tamil Nadu7, the Supreme Court challenged the traditional concept
of equality which was based on reasonable classification and has laid down a new concept of
equality. Bhagwati, J., delivering the judgment on behalf of himself, Chandachur and Krishna
Iyer, JJ. Propounded the new concept of equality in the following words,

―Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed,
cabined and confined’ with traditional and doctrinaire limits. From a positivistic point of view,

6
AIR 1966 SC 816
7
AIR 1974 SC 555

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equality is antithesis to arbitrariness. In fact equality and arbitrariness are sworn enemies, one
belong to the rule of law in a republic while the other, to the whim and caprice of an absolute
Monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to
political logic and constitutional law and therefore violative of Art.14.‖

The word ‗personal liberty‘ under Article 21 if interpreted widely is capable of including the
rights mentioned in Article 19. But in Gopalan Case8, the Supreme Court took a very literal view
and interpreted these words very narrowly. The Court took the view that since the word ‗liberty‘
is qualified by the word ‗personal‘ which is narrower concept and it does not include all that is
implied in the term ‗liberty‘. It means nothing more than the liberty of the physical body-
freedom from arrest and detention from false imprisonment or wrongful confinement. In
Gopalan case, ‗personal liberty‘ was said to mean only liberty relating to, or concerning the
person or body of the individual and in this sense it was antithesis or physical restraint or
coercion. It was further limited to freedom from punitive and preventive detention.

This restrictive interpretation of the expression ‗personal liberty‘ in Gopalan Case has not been
followed by the Supreme Court in its later decisions. In Kharak Singh’s case9, it was held that
‗personal liberty‘ was not only limited to only limited to bodily restraint or confinement to prison
only, but was used as a compendious term including within itself all the varieties of rights which
go to make up the personal liberty of a man other than those dealt with in Article 19(1). In other
words, while Article 19(1) deals with particular species and attributes of that freedom. Finally in
Maneka Gandhi v. Union of India10, the Supreme Court has not only overruled Gopalan‘s case
but has widened the scope of the words ‗personal liberty‘ considerably. Bhagwati, J observed:

―The expression ‗personal liberty‘ in Article 21 is of widest amplitude and it covers a variety of
rights which go to constitute the personal liberty to man and some of them have raised to the
status of distinct fundamental rights and given additional protection under Article 19.‖

8
A.K. Gopalan v. The State Of Madras, 1950 AIR 27
9
Kharak Singh v. The State Of U. P., AIR 1963 SC 1295
10
AIR 1978 SC 597

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The correct way of interpreting the provisions conferring fundamental rights, the court
observed:

The attempt of the Court should be to expand the reach and ambit of the Fundamental Rights
rather than to attenuate their meaning and content by a process of judicial construction. The
Court lays down great stress on the procedural safeguards. The procedure must satisfy the
requirement of natural justice, i.e., it must be just, fair and reasonable.

Equal Opportunity Of Employment In Offices Under Article 16(4):

The scope and extent of Article 16(4) has been examined thoroughly by the Supreme Court in
the historic case of Indira Sawhney v. Union of India11, popularly known as the Mandal Case.

The facts of the case were as follows. On January 1, 1979 the Government headed by the Prime
Minister Sri Morarji Desai appointed the 2nd Backward Class Commission under Article 340 of
the constitution under the chairmanship of Shri B.P. Mandal to investigate the socially and
educationally backward classes within the territory of India and recommend steps to be taken for
their advancement including desirability for making provisions for reservation of seats for them
in Government jobs. The commission submitted its report in December 1980. It had identified as
many as 3743 castes as socially and educationally backward classes and recommended for
reservation of 27% Government jobs for them.
The second principle of justice as recommended by John Rawls is clearly reflected in the Mandal
case where social and economic inequalities are to be arranged so that:
(a) they are to be of the greatest benefit to the least-advantaged members of society (the
difference principle).
(b) offices and positions must be open to everyone under conditions of fair equality of
opportunity.
Reservations in the jobs and educational institutions clearly show a reflection of Rawlsian
approach. It is a true fact that all persons do not have same social and economic background.
Some may have been least advantaged members of the society. In the Mandal case the
reservations tends to give benefit to the least advantaged members of the society.

11
AIR 1993 SC 477

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Another important point which is to be noted is that the offices and positions should be open to
everyone under conditions of ―fair equality of opportunity.‖ Therefore, offices and positions
must to open to all only when there is fair equality among those who are competing. Not all
members are equally placed by nature. Some are fortunate enough to be born in highly educated
background. So the question arises as to whether it is fair to treat them equally and evaluate them
with the same stick, of course, not. People who are not equally placed should not be treated in
the same manner. Lastly it can be concluded that the Theory of Justice as propounded by John
Rawls has shown the mirror of as what exactly is the concept of justice. Though it is difficult to
define justice in clear terms but Rawls has more or less has been successful in defining justice.

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 BIBLIOGRAPHY

 Audard, C., 2007, John Rawls, Montreal: McGill-Queen's University Press.

 Brooks, T., and Nussbaum, M. (eds.), 2015, Rawls's Political Liberalism, New York:
Columbia University Press.

 Hinton, T., (ed.), 2015, The Original Position, Cambridge: Cambridge University Press.

 Lovett, F., 2011, Rawls's A Theory of Justice: A Reader's Guide, London: Continuum.

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