Judge Robert Bork, in his book "The Tempting of America (1990)" mentions that there is a story according to which two of the greatest figures in American law, Justice Holmes and Judge Learned Hand, lunched together. Afterward, as Holmes drove away in his carriage, Hand, ran after him, in a sudden fit of enthusiasm, crying, "Do justice, sir, do justice." Holmes stopped the carriage and rebuked Hand, "That's not my job; it's my job to apply the law."[1]

In his address to the outgoing students of Gujarat National Law University, Justice Chandrachud said, "Never confuse law with justice… at many points in your career you will realize that what is legal is probably unjust whereas what is just may not be always legal."[2]

Since man began to theorize about the concept of "justice," two schools of thought have emerged. One school of thought emphasizes the rightness or wrongness of actions by examining the actions themselves without focusing on their consequences, while the other school of thought emphasizes the rightness or wrongness of actions by examining their consequences. In contemporary philosophy, these two schools of thought are known as deontology and consequentialism.

According to deontologists, there can be justice only if there are certain institutions, and without these institutions, there can be no justice. According to consequentialists, institutions are not so important for achieving justice; what matters is that justice prevails in society, and injustice is reduced, and this can happen without institutions. Although the issue of justice has been debated since antiquity, it came into focus during the European Enlightenment in the eighteenth and nineteenth centuries. During this period, the two different conceptions of justice became more and more crystallized.

Amartya Sen[3] has explained this dichotomy very aptly in his book The Idea of Justice, which favors the consequentialist school of thought. This book is essentially a critique of John Rawl's [4] book, A Theory of Justice, which advocates the deontological school of thought. In this book, Amartya Sen says that in reality, what helps to reduce injustice and achieve justice is the strong perception of obviously remediable injustice that moves people to act against it.

He says that in the real world, people are not trying to achieve the perfectly just world that transcendental institutionalism tries to achieve and that few of us expect. Using the examples of Gandhi[5] and Martin Luther King[6], he contends that Gandhi would not have challenged the great British Empire and Martin Luther King would not have fought white supremacy had it not been for the emotion or passion of manifest injustice. He says they did not dream of achieving a perfectly just world but simply wanted to eliminate apparent injustice as much as possible.

Amartya Sen criticizes the deontological approach, or what he calls "transcendental institutionalism," claiming that justice is related to the way people's lives go, not just the nature of the institutions surrounding them; therefore, it is important to focus on people's behaviour. He says that creating democratic institutions does not guarantee democracy unless the people in that nation want it and that justice is not guaranteed by mere institutions unless people strive for it.

According to him, understanding the importance of preventing overt injustice in the world, as opposed to striving for perfect justice, is simplified by a perspective focused on achieving it. The goal of justice is to prevent manifest injustice, not to create or envision a society or set of social structures that are perfectly just.

On the importance of passion in the concept of justice, he says that the instinctive aversion to misery, pain, callous behavior, and cruelty can play a great preventive role in avoiding atrocities. He also makes it clear that there is no conflict between reason and emotion. According to him, reason and emotions can go together; they can complement each other; in many cases, feelings and emotions can be good subjects for reason itself. A feeling or emotion of injustice can serve as a gesture to move us to do something about that injustice, but that gesture or signal requires sound critical examination.

There are many cases where the Supreme Court of India has gone a step further in its pursuit of justice than just applying simple law. For example, when in Sunil Batra v. Delhi Administration & Others[7], the Supreme Court considered a prisoner's letter as public interest litigation under Article 32 of the Constitution after converting it to a habeas corpus proceeding and held that the rights under Articles 14, 19, and 21 also apply to prisoners. This case also highlighted the urgent need to reform the Prison Act of 1894.

In M.C. Mehta vs. Union of India[8], the Supreme Court held that the principle of strict liability was insufficient to protect the rights of citizens and propounded a stricter principle, which is the principle of absolute liability. It ruled that if someone is injured as a result of an accident that occurs while the company is engaged in a dangerous or inherently dangerous activity, the company is strictly and absolutely accountable to compensate all those injured as a result of the accident.

The most remarkable is the transition from the rule of procedure established by law to due process of law. In A.K. Gopalan v. the State of Madras[9] (1950) SC held that if the detention followed the procedure specified by law, there was no infringement of the Fundamental Rights entrenched in Articles 13, 19, 21, and 22. In this case, the SC interpreted Article 21 narrowly.

However, in Maneka Gandhi v. Union of India[10] (1978), the Supreme Court interpreted article 21 very liberally in an effort to make "procedure established by law" synonymous with "due process of law". The SC ruled that limiting personal freedom by virtue of an enabling law alone was insufficient. For such a law to be valid, it must be "just, fair, and reasonable and not arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all, and article 21's criteria would not be met.

"Judges cannot blindly apply rules as conflicts have a human face and before rendering any decision, they have to weigh socio-economic factors and the impact of their decision on the society." -- Former Chief Justice of the Supreme Court, Justice N V Ramana[11]

End-Notes:

1. Judge Robert Bork, The Tempting of America (1990).
2. Live law, Justice Chandrachud: Never Confuse Law With Justice, What Is Just May Not Be Always Legal, (Aug. 30, 2022), Available at https://www.livelaw.in/videos/justice-chandrachud-never-confuse-law-with-justice-what-is-just-may-not-be-always-legal-video-205978
3. Amartya Kumar Sen is a philosopher and an economist from India who has lived and worked in the US and the UK since 1972. Sen has contributed to welfare economics, social choice theory, economic and social justice, decision theory, development economics, public health, and metrics of country well-being. He has also studied the economics of famines.
4. John Bordley Rawls was an American legal, moral and political philosopher who belonged to the liberal school of thought. He was born on February 21, 1921, and died on November 24, 2002.
5. Mohandas Karamchand Gandhi, an Indian lawyer, anti-colonial patriot, and political ethicist, lived from 2 October 1869 to 30 January 1948. He led the successful movement for India's independence from British domination via peaceful resistance.
6. From 1955 until his death in 1968, American Baptist clergyman and activist Martin Luther King Jr. was one of the most well-known figures in the civil rights movement
7. Sunil Batra v. Delhi Administration (1978) 4 SCC 409
8. M.C. Mehta vs. Union of India, A.I.R. 1987 SC1086
9. A.K. Gopalan v. State of Madras, AIR 1950 SC 27
10. Maneka Gandhi V. Union of India, AIR 1978 SC 597
11. The Times of India, Don't blindly follow rules, conflicts have a human face: CJI to judges, (Aug. 30, 2022)
    Available at http://timesofindia.indiatimes.com/articleshow/91033972.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst