In India from the very old period itself Justice was followed and it was even considered to be the very embodiment of God itself where its sole mission was to uphold justice, truth and righteousness. Vedas also demonstrated its deep commitment towards justice. Manu, Yajnavakya etc also shed light on the nature and quality of justice which was followed in the ancient India. With the advent of the Britishers, they followed the status qou and didn't go for much alteration to the laws enacted by Hindus and Muslims.

But in fact it was during the colonial period, the Britisher's drafted laws embodying substantial and procedural justice where ideas of rule of law, freedom of persons, civil liberties, natural justice, and equality were reflected. Later with the enactment of the Constitution, these became law of the land which is evident from the Preamble, Part III and IV of the Constitution.

Theories of Justice And Indian Judiciary

As Cardozo has rightly stated in his book Nature of Judicial Process that a judge may be influenced by his conscious and subconscious factors in arriving a judgment. And he may even refer to various theories of justice as propounded by western philosophers during the same.

Judiciary which is said to be the independent organ of the government has indeed taken effective efforts to reflect various theories of justice as propounded by various jurists in their judgments. Such theories of justice includes Bentham's Utilitarian theory of justice, Hebert Spencer's and Immanuel Kant's theory of liberty of individual, Dwarkin's Rights Thesis, Rawl's Theory of Justice, Amartya Sen's Idea of Justice, and also Socialist, Gandhian and natural principles of Justice etc. Hence a brief analysis of the same is stated below.

Rawl's Theory of Justice

Rawl's has propounded the social contract theory and he points out that “Justice is the first virtue of social institution”. Rawls theory of justice which inculcates the issues of liberty, social equality, democracy etc can be evidently witnessed in Indian judgments.

State of Madras v. Champakam Dwarairaja[1] was the main case on this point, after which the first amendment to the Constitution followed.

Indira Sawhney v. Union of India[2] was the then landmark judgment where by reservation of jobs for the backward classes was upheld. The ideas of equality through protective discrimination for ensuring justice was further followed in a number of judgments even in the judgments of Nagaraj v. Union of India[3] and Jurnail Singh v. State of Gujarat pronounced in the recent past.

The principle of distributive justice, which dates back its origin to Aristotle and as emphasized by John Rawl has been enshrined in the Indian Constitution, Articles 142 and 144 along with Part III and IV of the Constitution. Various judgments discussing environmental issues highlighted the principles of distributive justice.

Doctrine of Public Trust as upheld in:

M.C Mehta v. Kamal Nath[4] and as followed in Th.Majra Singh v. Indian Oil Corporation[5] and also Polluter Pay principle as laid down by the court in Indian Council for Enviro-Legal Action v. Union of India[6] and Vellore Citizens Welfare Forum v. Union of India[7] which forms the fundamentals of environmental law evolves its base from these principles. Even the landmark Maneka Gandh[8]i judgment also reflected this principle.

Dwarkin's Rights Thesis

Ronald Dwarkin in his book- Rights Thesis, emphasises the importance of the rights of the individuals. Upholding the common citizen's right and liberty to hold public meetings on streets and the extent to which the state could regulate it, Himat Lal K. Shah v. Commissioner of Police[9], marked an important decision in upholding liberty ideals of justice.

The individual's right to dignity was reinforced in:

1. Kharak Singh[10],
2. Satwan Singh[11]
3. Cooper cases[12] and
4. Maneka Gandhi v. Union of India[13]

was the judgment which marked the paradigm shift towards ensuring individual dignity even in cases where the right of a person is affected by a procedure established by law. The judgment also reflected the principles of dharma and ancient theories of justice of neethi and nyaya. Judgment thereby also included substantial justice along with procedural justice. Principles of Due process of Law of U.S Constitution, was thereby interpreted to the Constitution, under Article 21.

Libertarianism And Justice

Libertarianism strongly value for individual liberty and freedom and relates to the classical liberal traditions of John Locke, David Hume, and Kant etc. In NALSA[14] judgment, the court referred to Kant's 225 year old principle of free will and hedonist utilitarianism by Bentham and stated that in the present case there exists no dichotomy between individual freedoms as against public good and hence upheld the rights of the third gender persons. It was followed in Navtej Singh Johar v. Union of India, striking away the draconian law of section 377 of Indian Penal Code.

In Shayara Bano v. Union of India[15], enforcing equality the instant triple talaq was strucked down by the court and also in Joseph Shine v. Union of India[16], the Supreme Court of India in its landmark judgment held that adultery would no longer be a criminal offence under Indian law, outstripping 158 year old law of section 497 of Indian Penal Code.

Ulititarian Theory Of Justice

Jeremy Bentham propounded his famous utilitarian theory where he claims that a law should be enacted with the prime object of providing maximum justice to the maximum number of people. Public utility is thereby determined through the hedonistic calculus.

This was portrayed in Olga Tellis v. Bombay Muncipal Corporation[17], where Chandrachud. J. applied this doctrine and explained the concept in the brief statement:
“Human compassion must soften the rough edges of justice in all situations”.

The court ruled though the eviction order is valid under Article 14 and 19 of the Constitution, right to life was enlarged to engulf the right to livelihood as being part of liberty of an individual. Court thereby focused upon the concept of welfare state.

Referring to the Hume's theory of justice, in Union of India v. Tulsiram Pate[18]l, the court underlined that public utility is the sole origin of legal justice and for a useful legal system, it must adhere to such rules, even though it may cause injustice in particular cases. In Bangalore Medical Trust[19] case also the principle of public utility was pointed out by court in preferring public parks over hospitals.

Amartya Sen's Theory Of Justice

Amartya Sen propounded the Social Choice theory, whereby he states that a law should be enacted understanding the needs of the society and should be based on demand of justice. Recent landmark judgment of Puttuswamy v. Union of India, apart from dealing with privacy it also dealt with many other aspects. It invoked the writings of Amartya Sen's Idea of Justice and stated that Political liberties and democratic rights are the constituent components of development. Chandrachud .J. even overruled his father's judgment in ADM Jabalpur v. Shivakanth Shukla[20] and thereby upheld the dissent of Khanna J. and thereby the recognition of right to life and personal liberty under the Constitution.

In 2010, Pradeshiya Jan Jati Vikas Manch and Others v. State of UP and Others[21], referred to Part IV of the Amartya Sen's Idea of Justice- Public Reasoning and Democracy in ensuring the civil and political rights of the Scheduled Tribes and person's right to representation at the grass root level. B.K. Pavitre v. Union of India referred to Amartya Sen's Merit and Justice in understanding merit as an instrument in achieving social ordering and in lessening economic inequality. Court thereby ruled that providing reservations to SC's and SCT's is not at odds with the principle of meritocracy. Court ruled that merit must not be limited to inflexible criteria's such as ranks in exams but seek to provide equality in the society.

Basic Structure Theory

After the enactment of 24 th, 25th, 26th and 29th amendments of the Constitution, their validity was challenged on authority of Golak Nath[22] Judgment in Keshavanda Bharathi v. State of Kerala[23]. But Golak Nath was overruled and the basic structure doctrine was upheld by the judiciary where the basic structure has not been still defined and is enlarged to include many of the rights of the individuals which cannot be abrogated by the Parliament. Indira Nehru Gandhi v. Raj Narain[24] upheld the independence of judiciary in dispensing justice and held that judicial review is a basic feature of the constitution.

Consequently after 1976, Supreme Court took considerable efforts to bring a new egalitarian order in furtherance of Directive Principles of State Policy. Thus in Minerva Mills[25], court underlined that Part III and IV of the constitution is like a twin formula for achieving the social revolution.

Gandhian Theory of Justice

It is based on the principles of truth, equality and social justice. The concept of Lok Adalath is an innovative Indian contribution to the world jurisprudence and it is based on the Gandhian principles. It was so held in the case of M.P State Legal Service Authority v. Prateek Jain[26]

Conclusion:
So in fact there may exist, no society without justice. And the concept pf social conditioning and individual responsibility plays an important role in theories of justice.

Along with the analysis of these judgments where we can observe the reflections of various judgments, in addition we have seen the judicial activism of the court many a times, and this law making function of the court can be traced back to the realist school of jurisprudence which can be said in line with the Austanian concept of command over the sovereign, whereby here judge is considered to be supreme in setting law in a legal right. PIL's have proved to be effective due to the very reason that the judges have evolved laws through directions. Thus it can be said that judgments are the very embodiment of justice were we can observe various theories been reflected there.

End-Notes:

1. AIR 1951 SC 226
2. AIR 1993 SC 477
3. (2006) 8 SCC 212
4. (1997) 1 SCC 388
5. AIR 1999 J K 81
6. (1996) 5 SCC 281
7. (1996) 4 SCC 647
8. 1978 AIR 597
9. 1973 AIR 87
10. 1963 AIR 1295
11. 1967AIR 1836
12. 1970 SCR (3) 530
13. 1978 AIR 597
14. AIR 2014 SC 1863
15. (2017) 9 SCC 1
16. AIR 2018 SC 4898
17. 1985 SCC (3) 545
18. 1997 (3) SCC 398
19. AIR 1991 SC 1902
20. (1976) 2 SCC 521
21. AIR 2011 AII 1
22. 1967 AIR 1643
23. (1973) 4 SCC 225
24. 1975 AIR 865
25. AIR 1980 SC 1789
26. (2014) 10 SCC 690