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
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."
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
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 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  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
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 and Martin Luther King, 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, 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
, 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
(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
 (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
- Judge Robert Bork, The Tempting of America (1990).
- 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
- 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.
- 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.
- 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
- 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
- Sunil Batra v. Delhi Administration (1978) 4 SCC 409
- M.C. Mehta vs. Union of India, A.I.R. 1987 SC1086
- A.K. Gopalan v. State of Madras, AIR 1950 SC 27
- Maneka Gandhi V. Union of India, AIR 1978 SC 597
- 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