The last few decades of the the twentieth century
and the first one and half of the twenty first century have seen various
different societies teeming with discourse that has at its centre the idea of
justice. Justice, even among the more developed nations is now being talked off
as social or collective justice especially after the the intervention of
Rawlsian and Multicultural notions finding their way into the vocabulary of
mainstream liberalism. A caveat here that needs to be inserted. While most
political discourse in different countries is talking about social justice, the
content of that changes from region to region or to put it better, context to
context. In this process expressions like Civil Society have undergone a
complete change which can be very confusing for some who have grown up with the
idea that Civil Society is a smaller body within the larger society but has
some distinguishing features that make it stand above the rest of society. John
Locke the philosopher had held that Civil Society consisted of people who were
more rational than others, the demonstration of which was possible by the fact
that they held a certain amount of property that the less rational did not
hold. He wanted to entrust the process of governance to this Civil Society.
Hegel, saw Civil Society as a body of people whom he called the Korporation and
these people had greater understanding of things in society and were imminently
people who could understand the moment when the infinite Geist realized itself
through the means of the finite geist which is the human being. This
Korporation has often been translated into English as Bureaucracy and it
explains why Hegel had so much faith in it. Karl Marx was dismissive about
Civil Society which he thought was a construct of the bourgeois society in its
attempt to exploit the proletariat.
However it now seems that Civil Society is the body
of people who do no belong to any of the institutions of government; the latter
now having acquired the identity of a political society. All matters pertaining
to governance and that includes justice has now been placed in this complex relationship
between civil and political societies. While the demand for it arises in the
civil society, the dispensation of it is the work of the political society of
which the judiciary is also a part. It is this gap between the demand and
dispensation of it that characterizes the problems that justice as a term
faces. The demand is based in principles that are substantive and the
dispensation is based mainly by the following of procedures. A very critical
point that can be brought in as an example is the recent controversy
surrounding the the Art 377 of the Indian Constitution. This article sees both
homosexuality and sodomy as criminal while Civil Society want its complete
abrogation since this is archaic and has no place in a society that has veered
around to the acceptance of the LGBT rights. However, the Supreme Court went by
the word of the law and and upheld the article and its existence. This is just
one of many such cases and there are even more complicated cases with deeper
repercussions for the society.
In fact, it can be argued that the division of
political society and civil society itself is deliberate and has an agenda that
hides behind this chicanery of words. Sometimes it makes sense to look at the
State and its organs and institutions as just that. The same would be true of
society. Society makes complete sense without it having to be prefixed with
civil. It is not unreasonable to believe
that society in itself is a construct that includes civility and unless there
is a necessity for exclusion of people like Locke did, there is no need to
prefix it with Civil. Usually such prefixes in them suggest a deeper agenda
which can in itself be a subject of deeper research. The creation of the term
political society itself can be seen as an attempt to bring in the State and
its institutions and the people who man them into ambit of activism. Political
Society activism can be seen as acceptable while State activism is difficult to
accept.
Justice as a term or a concept can be seen or
actually should be seen as a part of this complex process of political society
activism versus civil society activism. Very often since both are activisms it
is difficult to distinguish the difference between the two. A prime example of this is the movement for
the separation of Telangana from Andhra Pradesh, where the primary activists
for the cause were members of the political society while some sections of the
so called civil societies such as students were incorporated into it. The
reasons for the students becoming a part of the agitation had very little to do
with the activism of political society members. While the former were hoping
for employment in the new State, the latter were simply looking for power and
the perks that would come with that. The dissonance became clear a year after
the formation of the State and it shows that the State has shown very little
interest in the solution to the problem of unemployment of people. While the
agitation was on, everybody was fighting for social justice but after the
realization of the goal of a new State only one section i.e., the political
society’s ambitions have found fructification while that of the students has
remained unfulfilled with no time table being set for the fulfilment of their
objective.
The judiciary in taking up or disregarding cases
does so by looking at the provisions of the constitution and the various acts
and sections contained therein. It was Thomas Jefferson who said that the
validity of a constitution would be for about 20 years, because the aspirations
of the people cannot remain the same forever. But in the operationalizing of
constitutionalism this factor is rarely taken into consideration. In the United
States of America, the judiciary in most States in the early years gave the
power of inserting, re-writing and editing of provisions and even creating
precedents through these actions. However, over a period of time as the Union
became stronger these powers were withdrawn from the judiciary gradually and
change in law became a matter of public policy which could be carried out only
by the legislature sometimes in conjunction with the executive. The judiciary
in the USA and in most parts of the democratic world became an institution of
judicial review with its powers curtailed only to interpreting the provisions
of the constitution and judging if the actions of the legislature violated any
of the existing provisions of law. The judiciary therefore became an arbiter
and nothing more.
The problematic concerning justice lies in this
emasculation of the judiciary by the other two organs of the government as also
in the appropriation of activism from civil society by political society
(meaning politicians with agendas of their own which have nothing to do with
the rest of the people). The
philosophers and legalists have a certain idea of justice (there are many such
views ranging from Hobbes’ idea that justice is what one perceives it to be to
Rawls’ idea that there is a necessity for historical handicapping of those who
were denied access to primary social goods) but this is usually for consumption
of students and researchers in educational institutions such as universities
and specialized institutions of research.
