Ethics: March 2022 Current Affairs | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

On Justice

In the present times, we see multiple conflicts and challenges to global peace. There are multiple claims of justice being denied. It has become very relevant in current times to understand the concept of justice.

Aristotle has said that it is in justice that the ordering of a society is centered. Martin Luther King Jr has remarked that ‘True peace is not merely the absence of tension: it is the presence of justice’. It also been said that ‘the arc of moral universe is long, but it bends towards justice’. It is interesting to note what Amartya Sen once said, ‘I believe that virtually all the problems in the world come from inequality of one kind or another’.

In discussions on justice, a distinction is drawn between procedural justice and substantive justice. Procedural justice refers to justice or fairness or impartiality of the processes and procedures through which a law or policy or decision is arrived at and applied. Substantive justice refers to justice or fairness of the content or outcome of laws, policies, decisions, etc. Procedural justice concerns itself at the level of application. The procedures followed must be just and the legal codes should not be violated.
Substantive justice, on the other hand, is concerned with the content of the law. The legal principles created by Parliament and the courts need to be regarded as ‘just’. The moral and cultural values of the society in which the law is created are especially influential in determining whether the law is regarded as just. For instance, whether the laws on abortion or drugs are regarded as just will largely depend on the attitudes that are prevalent in that society.
Where law is considered unjust the consequences for social order can be potentially far-reaching. In the eighteenth century, the catalyst for the American War of Independence was the British Government’s decision to impose a tax on tea imported into the American colonies. The American colonists regarded this as unjust as they had no right of representation in the British Parliament and therefore no say in the imposition of taxation. Thus, while procedural justice is concerned about ‘letter of law’, the substantive justice is more about ‘spirit of law’. Often, rights based justice is seen as procedural justice, whereas needs-based justice is seen as substantive justice.
Principles of procedural justice have traditionally been based on the idea of formal equality of persons, i.e., their equality as human beings or as subjects of the rule of law, irrespective of their differences in gender, religion, race, caste, wealth, etc. Procedural justice is based on ideas like equality before law, when procedural justice is about ‘procedure established by law’ and substantive justice is about ‘due process of law’.
The idea of substantive justice can be said to be a more mature approach than procedural justice. The idea of procedural justice inspires minimal state (no use of discretion by state – just follow the procedure) and is largely inspired from classical liberal school. Substantive justice encourages state intervention to ensure ‘justice’. It allows state to use its discretion in favour of weaker sections, or to ensure justice in fullest sense of the word. Originally, Art 21 contained provision only for ‘procedure established by law’. But Supreme Court found the clause inadequate and expanded the ambit of the article to also include ‘due process of law’ (substantive justice) in Maneka Gandhi Judgement.

Substantive Justice in Indian Constitution

The expression ‘due process of law’ is not used in any provisions of the Indian Constitution. However, the due process can be inferred through the Articles 14, 19, 20, 21 and 22.

The judiciary has played a creative role in this regard. It has interpreted the ‘procedure established by law’ in Article 21 to be equivalent of the ‘due process of law.’

Article 21 in its draft form was Article 15. It provided that “No person shall be deprived of his life or liberty without the due process of law.” But the Drafting Committee at a later stage proposed the substitution of the expression “except according to procedure established by law” for the words “without due process of law.” The Drafting Committee justified the amendment because the word due process gives scope for judicial supremacy to determine the content of law which is likely to create confusion and hurdles in the social transformation.

Supreme Court of India in A.K. Goplan v. Union of India, case held that Article 21 is complete code; procedure established by law need not comply with the principle of natural justice and reasonableness under Article 19. Supreme Court decisively rejected the application of due process of law under Article 21 pointing out that as long as a person was detained according to procedure established by law, he could not challenge his detention. However, the attitude of judiciary gradually shifted from the procedure established by law to procedural due process.

Maneka Gandhi Case is now accepted as the landmark starting point of the introduction of due process clause in India after incorporating the concept of arbitrariness articulated under Article 21.
Substantive justice is “justice” in its fuller dimensions, not just the demonstrations of equality and fairness in the system. Correctly said by Amartya Sen in his book “Idea of Justice”, a law is not about ‘niti’ (rule), it is also about ‘nyay’ (justice). Law is not only for imposing, convicting or acquitting the accused but also to see whether those outcomes are just and fair or not.

Immanuel Kant has given his ideas of Governance in Perpetual Peace: A philosophical sketch. He says, “The state of peace is not a state of nature, which is rather a state of war, so must the state of peace be established”. In current times, the only hope of establishing peace is ensuring justice.

Case Studies for Practice

Case Study 1 : You are Vice Principal of a degree college in one of the middle – class towns. Principal has recently retired and management is looking for his replacement. There are also feelers that the management may promote you as Principal. In the meantime, during annual examination the flying squad came from the university caught two students red-handed involving in unfair means. A senior lecturer at the college was personally helping these students in this act. This senior lecturer also happens to be close to the management.

One of the students was son of a local politician who was responsible in getting college affiliated to the present reputed university. The second student was son of a local businessman who has donated maximum funds for running of the college. You immediately informed the management regarding this unfortunate incident. The management told you to resolve the issue with flying squad at any cost. They further said that such incident will not only tarnish the image of the college but also the politician and businessman are very important personalities for the functioning of the college. You were also given hint that your further promotion to Principal depends on your capability in resolving this issue with flying squad. In the meantime, you were intimated by your administrative officer that certain members of the student union are protesting outside the college gate against the senior lecturer and the students involved in this incident and demanding strict action against defaulters.

• Discuss the ethical issues involved in the case.
• Critically examine the options available with you as Vice Principal. What option will you adopt and why? (Answer in 250 words)

Approach

• Introduction: give the core ethical issue/question in the case and the peripheral issues.
• Body: Identify the different options available, critically evaluate them and with proper ethical reasoning choose the most appropriate option.
• Conclusion: reaffirm the importance of high ethical standard in public life. The cases raises the question that should one do an act of corruption to advance interest of one’s organisation.

Ethical issues involved in the case

• My value of integrity – as a guard against corruption is under test.
• Injustice to students giving the test honestly.
• Integrity in the process in our education system.
• Role of teachers in developing the morality in students.
• Abuse of power by politicians and businessmen.
• Courage to stand against the powerful people.
• Autonomy and Reputation of the educational institution.

Options available as Vice Principal

Options available:

• Follow the order of management and make settlement by hiding true facts to the flying squad.
• Show your incapability to the management that you cannot deal with flying squad.
• Refuse the management to support an illegal act and tell the truth to flying squad.

Justification for the 3rd option

• To avoid any inner dissonance and crisis of conscience I must act ethically. Then only I can be happy from within.
• Satyamev Jayate, honesty is morally uplifting it boosts dignity and self-respect; Virtue, like happiness, must be desired for themselves; two things awe me most, the starry sky above me and the moral law within me.
• As per Kant’s categorical imperative I must treat humanity as an end and value the life of the accident victim. 

John Rawl’s veil of ignorance.

• It is my legal responsibility to help enforce the rule by punishing the violators and creating deterrence.
• My decision will help students get justice.
• My virtue and integrity will be safeguarded.
  Along with this I will persuade my institution to willingly accept my decision. My personal integrity will also increase managements trust in me and help me assume greater responsibility.

Case Study 2: An elevated corridor is being constructed to reduce traffic congestion in the capital of a particular state. You have been selected as project manager of this prestigious project on your professional competence and experience. The deadline is to complete the project in next two years by 20 June, 2021, since this project is to be inaugurated by the Chief Minister before the elections are announced in the second week of July 2021. While carrying out the surprise inspection by inspecting team, a minor crack was noticed in one of the pairs of the elevated corridor possibly due to poor material used. You immediately informed the chief engineer and stopped further work. It was assessed by you that minimum three pillars of the elevated corridor must be demolished and reconstructed. But this process will delay the project minimum by four to six months. But the chief engineer overruled the observation of inspecting team on the ground that it was a minor crack which will not in any way impact the strength and durability of the bridge. He ordered you to overlook the observation of inspecting team and continue working with same speed and tempo. He informed you that the minister does not want any delay as he wants the chief Minister to inaugurate the elevated corridor before the elections are declared.
He also gave you hint that your further promotion as additional chief engineer is under consideration with the ministry. However, you strongly felt that the minor crack in the pillar of the elevated corridor will adversely affect the health and life of the bridge and therefore it will be very dangerous not to repair the elevated corridor.

a) Under the given conditions, what are the options available to you as a project manager?

b) What are the ethical dilemmas being faced by the project manager?

c) What are the professional challenges likely to be faced by the project manager and his response to overcome such challenges?

d) What can be the consequences of overlooking the observation raised by the inspecting team?
(Answer in 250 words)

Approach

• Introduction: Give the core ethical issue/question in the case and the peripheral issues.
• Body: Identify the different options available, ethical dilemma, professional challenges and consequences of overlooking the observation raised by the inspecting team.
• Conclusion: Give a suitable conclusion.

Options available

i) Follow the advice of the Chief Engineer and go ahead.
ii) Make an exhaustive report of the situation bringing out all facts and analysis along with your own viewpoints stated clearly and seek for written orders from the chief Engineer.

iii) Call for explanation from the Junior Engineers and issue orders to the contractor for necessary correction within targeted time.
iv) Highlight the issue so that it reaches superiors above the Chief Engineer.

v) Considering the rigid attitude of the Chief Engineer, seek transfer from the project or report sick.
Ethical dilemma faced by the project manager are as under:

• Personal interest vs public interest: Going ahead with the project may give promotion, however, it could possibly put the life of many citizens into severe jeopardy.
• Ends vs means: While going ahead with the project will fulfil the end of timely inauguration, it will destroy the integrity of the construction process.
• Administrative ethics vs work efficiency: While for completing the project on time, the project manager will be lauded for his efficiency, it will compromise his administrative ethics. 
• Professional discipline Vs listening to conscience – Adhering to the orders of seniors or should he follow his own inner voice.
• Cost vs quality of service: While demolishing the three pillars will add to cost and time over run of the project, more so, when it is deemed fit by the chief engineer, continuing the other hand will compromise the quality-of-service delivery.
  Professional challenges likely to be faced by the manager are as under:
• Maintaining his professional ethics – of integrity, dedication etc
• Upholding spirit of public service – to maintain the quality of work
• Maintaining work culture of my department – to work with honesty and commitment as overruling findings of inspection team may demotivate them.
• Challenge of tackling corruption in his department as the material used was of poor quality
• Pressure from superiors: As the Chief engineer as exhorted the project manager, to continue the work with same tempo.
• Political pressure: As the contractor is a relative of the minister, and the CM intends to inaugurate the project before the elections.
• Stifling of career progression: As the career prospects of the project manager are linked to the completion of the project.
• Possible responsibility: In case the project fails and the bridge collapses, the project manager will be liable for a departmental/judicial enquiry.
  Consequences of overlooking the observation raised by the inspecting team:
• The corridor might collapse, causing severe damage to the life and property. Objective of common good will not be achieved.
• Trust and credibility of government project will get eroded. Social capital will wane.
• Work culture will deteriorate.
• Poor service delivery quality
• Nepotism in the working of government project.
  These will essentially break the social contract.