This book review is jointly authored by Saradindu Mukherji and Shoumendu Mukherji.
The Nobel laureate in economics makes tremendous use of history, contemporary politics and value systems, with a generous mixing of moral judgement in The Idea of Justice (Amartya Sen, Allen Lane, 2009), like many of his publications and public lectures. This review primarily takes up only such matters.
The idea of justice—the origin of the very concept, its tumultuous growth battling the impediments on its forward journey, its mechanism, and the debate over its effectiveness, is a formidable intellectual challenge, and so is Sen’s critique of Rawls, regarded perhaps rightly as one of the most renowned philosophers of our times. There is a very interesting discussion of the ‘Rational Choice Theory’ and ‘Sustainable Development and the Environment’ and more admirable is the way Sen makes them intelligible to the uninitiated. Throughout the course of history, the idea of justice has been conceived and administered in varying ways depending on the socio-cultural ethos and political systems that prevail in various countries.
The Supreme Court of India has opined, ‘justice may be social, moral or legal, meaning between two contesting parties in a court of law, as per the record of the case based on evidence after a fair and impartial trial. Further, it has been held that to secure the ‘ends of justice’ is to act in the best interest of both parties within the four corners of the statute preserving the balance and sanctity of the Constitutional and statutory rights of the individual and public at large.’
However, in the present times, the idea of justice as propounded by the Supreme Court of India has often been nixed by the belief that ‘justice must be seen to be done (R v Thames (1974) 1 WLR 1371) ’ at the cost of ‘natural justice i.e. the right to a fair trial’ in order to please our society at large where perception often triumphs over ‘realism’.
An adverse public opinion is manufactured against the accused prematurely on sub-judice matters without weighing the evidence. This precedent is not only irresponsible but damaging to the very root of our legal framework. ‘Rule of law’ has two aspects—substantive and procedural, where each element complements the other. Compromising on any one over the other owing to exigency or for ‘playing to the galleries’ critically scuttles the ‘due process of law’ and results in ‘rule of law’ becoming nugatory.
Be that as it may at the operational level, Sen offers a cross-country scenario of the concept of justice, spread well over many centuries in this work. We note with much optimism his plea for clearly remediable injustices around us which we want to eliminate’ ( p.vii).
Since Amartya Sen functions in an European-American intellectual milieu, the Western backdrop that he provides does not satisfactorily explain the symbiotic relationship between a more accountable system of governance, i.e, ‘Tudor Revolution of Government’(Elton), the rise of opposition in the late 16th Century British Parliament, the Puritan contribution to the emergence of a democratic spirit, the struggle between the King and the Parliament culminating in the Glorious Revolution(1688), the Bill of Rights (1689), and the growing acceptance of some foundational ideas like ‘rule of law’ , ‘equality of all before law’, origins of the ideas of state engineering, and similar other related attributes.
The absence of such political developments in his sketch leaves a gap, and more so, because he has Magna Carta (1215), as one of his starting points followed in due course by the Declaration of the Rights of Man and the Universal Declaration of Human Rights (1948).
If Hobbes was rejecting the liberal prescription (p.308-309, fn), it might be explained more by the fact that Cromwell had come to power by then, and England was ruled (1649-60) without a king. The English politics and social relations had undergone much transformation from the time when he first wrote in 1640, and then came out his Leviathan (1651).
The last time an English King had been executed was in 1649, and the ‘Commonwealth’ was in power in a very chaotic situation, while the ‘true Levellers’ or Diggers were trying to practice some sort of ‘communism’ so to say. It is no coincidence that Winstanley’s ‘Law of Freedom’ was published in 1651 too. We may note here, how the missing dimension has been so deftly sketched in Christopher Hill’s path-breaking ‘World Turned Upside Down’. Theorising, as we may think, does not necessarily emerge out of contemplation, but often because of the ground reality.
While tracing the uneven course of the evolution of ‘redressable justice’, one would have expected a mention of the Court of Star Chamber, and the role of the Habeas Corpus Act, if not the Code of Justinian, and the basics of Roman law and Grotius (1583-1645), famous for his seminal idea of the modernization of jurisprudence, having ‘freed natural law from its ancient alliance with theology’. Similarly, the Stuart legislations against the havoc-creating ‘enclosures’, another practical measure to provide justice to the deprived, fail to find a mention.
Methodologically and logically, Sen trips occasionally as on Bruno, Akbar’s Din-i-Ilahi or in the case of the Jewish philosopher Maimonides seeking shelter in Saladin’s (12th century) Cairo (p.333), to draw an untenable conclusion regarding Islamic intolerance and a certain mind set .
Sen is oblivious of the account of the severe sufferings of the Coptic Christians of Egypt as described by the Muslim historian of Copts, Taqiy-al-Din –al Maqrizi in Saladin’s time. One may however, remember that much of the adoration of Saladin in Europe owes its origin to Sir Walter Scott and the visit of William II of Prussia to Saladin’s tomb, and the latter being just another dimension of the Berlin-Baghdad railway project as a component of the Pan-Islamic project.
While one would easily overlook Sen’s confusion over a date (p.1) regarding Hastings ‘commanding’ East India Company, when Burke tore him apart in the House of Commons in May 1789 (Hasting’s ‘command’ in India had ended by 1785), it would be difficult to explain his inconsistency in uniformly applying standards, when he applies it to others . ‘Can there be a satisfactory understanding of ethics in general and of justice in particular that confines its attention to some people and not others, presuming-if only implicitly-that some people are relevant while others simply are not ?’(p117)
We would take up two scenarios, to see if Sen himself follows the standard he lays down.
As one who had ancestral roots in Dhaka (Bangladesh), and happens to be a frequent visitor to Bangladesh, how is it that Sen misses out the implication of the Enemy/ Vested Property Act which has further crippled the long-suffering Hindu minorities there? See the path-breaking research by A.Barkat, S, Zaman, A.Poddar, M.Ullah, KA Hussain, and S.K. Sen Gupta, ‘An Inquiry into Causes and Consequences of Deprivation’, Dhaka, 2000.
It would be difficult to believe that Sen is really oblivious of this. But if he has deliberately pushed it under the carpet, then the question arises: does it reveal his concern for justice or is it his abetment/approval of injustice? And mind you, Sen has a chapter on ‘Minority Rights and Inclusive Priorities’ (pp352-354).
As Sen asks in another context, ‘So what is fairness ? This foundational idea can be given shape in various ways, but central to it must be a demand to avoid a bias in our evaluations, taking note of the interests and concerns of all stakeholders as well, and in particular, the need to avoid being influenced by our respective vested interests, or by our personal priorities or eccentricities or prejudices’(p.54).
Amartya Sen may set himself against the standard he so eloquently sets for others, and ask himself where does he really stand? While he applauds the role of ‘impartial spectator,’ where would lesser mortals place his ‘close friend,’ a ‘visionary’ named Mahbub-ul-Haq, the former Pakistani Minister of Finance and Planning (1982-1988), (p.226) when Pakistan-sponsored terrorism was at its height in Indian Punjab. The question begging an answer: was Haq despite his ‘human development approach’ an ‘impartial spectator’ or had he ever shown any normal humanitarian concern for the hapless and persecuted religious minorities as a Cabinet Minister? There is a concept of ‘guilt by association’, and one would like to know who all could be guilty of this?
Sen’s studied reticence on this issue raises uncomfortable questions in light of the fact that another Nobel laureate, V.S. Naipaul has described Pakistan as a ‘criminal enterprise’ while the rest of the world, including we Indians, look at it as a rogue and a failed state. And once again, we experienced that at Gurdaspur day before yesterday.
This not only takes us to another contested domain that Sen Takes up, the so-called ‘Asian values’ and its homogenizing reach in the context of what Chris Patten had once observed. For example, one can compare and contrast India’s handling of the tribal people as in our north eastern states and that of Malaysia regarding its non-Muslim Orang Aslis or the treatment of the Buddhist Jummas (commonly called the Chakmas) in the Chittagong Hill Tracts by the Pakistani/Bangladeshi regimes.
India is tolerant and accommodative of other religions because of its 80 per cent Hindu population, and has consistently sustained a system of parliamentary democracy and much higher growth of its religious minorities unlike so many other countries in Asia, and particularly in its immediate neighbourhood. Is it not a fact that Islamic countries, exceptions apart, even with some rudimentary trappings of a ‘westernized’ state, are rapidly erasing even that window-dressing, and sliding back into the Middle ages from which they had barely emerged?
The omission of Gladstone (1809-98: who was Britain’s Prime Minister four times), whose bold experiments in practical liberalism (both in Ireland and India, including the abortive Illbert Bill (1883), all reflecting his concern for some justice even in a colonial situation, his sympathetic views on the Armenian genocide by the Sunni Ottomans/Caliphate looks galling, especially when Sen has space for a lot of unsubstantiated history and Bollywood.
There is still lesser explanation for ignoring Cornwallis’s Criminal Code (1790,1793) in India, which provided a rule for guidance of Muslim law officers, that in a murder case, they were to be guided by the intention of the murderer. This was a remarkable contribution. Indeed, Cornwallis did more. Amputation of limbs (Islamic shariat) was replaced by temporary hard labour or fine. He further stopped the practice of withdrawal or seeking compensation by an heir and relative of the deceased in a murder case. Despite the Permanent Settlement (1793), this was a remarkable contribution by the British colonial masters.
Sen not only overlooks that but also completely ignores another piece of legislation by Cornwallis (1793), that non-Muslims could give testimony against Muslims in criminal cases previously prohibited in Islamic law. Sen’s studied reticence on the indefensible, true specimens of an intolerant theological code, is easy to understand in light of his admiration for the Islamic rulers of India, and their legacies. Powerful, ‘vested interest’ which he theoretically, and otherwise considers a serious impediment in the administration of justice but casually smothers in his own analysis and public lectures.
Sen discusses nyaya, niti and matsya nyaya. While Manu-smriti comes under the scanner, Yajnavalka Smriti is not mentioned, and so are the Mosiac law and Hamburabi’s Code. He overlooks that despite Manu’s code, there were many transgressions of it without inviting severe punishment, as one finds in the effectiveness of the women’s right to inheritance in the Dayabhaga system which prevailed in his native Bengal, as distinct from mitakshara, that prevailed elsewhere in India.
Amartya Sen however, concurs with those who have characterized Manu with ‘some modicum of veracity, as a fascist law-giver’ (p.20). Knowing Sen’s known habit of unjustified Hindu-bashing, it does not come as a surprise that Sen comes to the defence of Islamo-fascists so consistently. He remains oblivious to what Tagore, in his own version, one of the influences on him, uses the term ‘Bhagwan Manu.’ Tagore cites his advice to treat reward as poison and accept calumny as a divine nectar (Letter to Pulin Bihari Sen, 20.Nov 1937), when the controversy over Jana Gana Mana was raked up by some. Sen might do well to remember that the polytheististic tradition of the ‘unbelievers’ has no concept of a fatwa and mass murder as in other ‘sacred traditions’ he rationalizes so often.
It would be revealing to take a look at what all he writes and smothers in ‘Minority Rights and Inclusive Priorities,’ in claiming how Gandhi had emphasized ‘inclusiveness’. But we know that it was no sudden invention in 20th century India, and that is why an overwhelmingly Hindu-Buddhist-Jain-Pagan Bharata, with its unsullied tradition of ‘inclusiveness’ provided shelter, safety and honor to the persecuted refugee victims -the Zoroastrians, Jews and Christians throughout the ages.
Amartya Sen again ascribes too much to some vague ‘public discussion that followed the attacks, to which both Muslims and non-Muslims contributed richly’ in the context of ‘a murderous attack in Mumbai in November 2008 by terrorists from a Muslim background (and almost certainly of Pakistani ancestry), that the much-feared reaction against Indian Muslims did not emerge’.
Sen is wrong in suggesting that Hindus routinely attack Muslims whereas in reality, the latter indulges in their periodic genocidal attacks on the Hindus. Immediately after the partition of India, while Pakistan, true to its ideologues (including Sir Syed Ahmad Khan and Mohammad Ali Jinnah, now being sanitized as ‘Makers of Modern India’ by India’s ‘eminent’ and ‘secular’ historians) succeeded in eliminating its Hindu, Sikh, Buddhist, Christian population.
In fact, Hindus suffer in various parts of the world at the hands of the Muslims including England, over issues ranging from Palestine to Ayodhya. Would Sen recollect the pogrom of the Hindus in East Pakistan (I964) over the Hazratbal theft in Kashmir, which affected his ancestral city of Dhaka? Would he remember what the Pakistanis and their local collaborators did to three million people (90 per cent of the victims being Hindus) during the Bangladesh war of liberation? And if Hindus had routinely done what the Muslims did, how would Sen with his command over statistics, explain the decline of Hindu population in India while the population of Muslims continues to increase?
As for the public discussion between Hindus and Muslims, one wishes it really works in Pakistan, Bangladesh and our own Jammu and Kashmir, so that the Hindus have some sense of safety and security, and Hindu refugees from the Kashmir valley now refugees in their own land, were restored their landed property and honor.
We all might wonder as to why it did not work when Gandhi and Nehru were at the helm, and had to deal with the ‘constitutionalist’ and ‘Maker of Modern India’- that mass murderer, Mohammad Ali Jinnah. Well, Sen and his band of ‘secularists’ know in the heart of hearts that it was the infinite patience of Hindus and their inherent tolerance of ‘others’ that prevented a retaliation. Anyway, Sen might still do a tremendous service to humanity if he can work out similar dialogues between the ‘Holy warriors’ of the ISIS and the persecuted Yezidis, Shias and Christians in the areas under the new Caliphate.
In paying a rare compliment to the Hindus, while saying that India with more than 80 per cent Hindus has a Sikh prime minister and a ruling party president of ‘Christian background’ and a Muslim President (and having had several Muslim presidents in the past), with ‘none of the three principal governing positions of the country being occupied by non-Hindus-while ‘there was no noticeable sense of discontent’ ( p.353), Sen smothers a very important dimension: he refrains from saying that the then president of Congress, India’s ruling party, is just not a Christian, but also an Italian. Was he deliberately pushing it under the carpet ? Would Italy accept a Hindu Indian in similar position or if Bobby aka Piyush Jindal, in his Hindu persona would have been a serious political aspirant in America?
After all, Indian National Congress of yore had its first President, a converted Christian, (Womesh Chandra Banerjee), and so have been various Cabinet Ministers and Defence Service Chiefs after independence. No Hindu ever opposed or criticized that. So to have a Christian president of the ruling party was no cause of concern for the Hindus. To have a non-Hindu Defence Service Chief or Chairman of the UPSC, or a Chief Election Commissioner besides Cabinet Ministers in Central government or States, Governors or important Ambassadors are not unknown to the Hindus of India. How many Hindus in similar positions would Amartya Sen find in his beloved Pakistan and Bangladesh? What justice does Sen talk of and for whom, is often difficult to fathom.
Yet, one must admit, that Sen reveals, in this rarest of rare passage, a streak of atavism perhaps, and shows that he has not totally forgotten some of the basic ideas that Kshitimohan Sen (his grandfather) had put down so evocatively in his important study on Hinduism. Be that as it may, Sen is back with his campaign of disinformation after a few paragraphs. He goes on to talk of ‘the organized riots in Gujarat in 2002, in which close 2000 people, mostly Muslims died…’ (p.354). Sen had completed this book seven years after that incident, and now, and even six years after that, no one has found a shred of evidence to say that it was organized, unless of course Sen has his own Court of Enquiry. Sen does not mention the roasting alive of the 58 Hindu pilgrims in the railway coach at Godhra which led to the subsequent violence. How could he smother the all-important cause, and yet inflate the figures? This is Amartya Sen at his best.
‘According to the statement of the GOI, the community-wise break-up of the victims in Gujarat is as follows: 790 Muslims killed, 254 Hindus killed, 2,500 wounded and 223 gone missing. In a state with 88 per cent Hindus and 10 per cent Muslims, ruled by an allegedly pro-Hindu government, the casualty figures do not fit into the pattern of a genocide or pogrom of a particular community.’
This had been pointed out (27 Nov 2007, The Indian Express) earlier. Sen might well ask this to himself if this is fairness. Has it ever happened in Pakistan or Bangladesh, where so many members of the majority community have suffered at the hands of the minority or their security agencies? Did it ever happen in Hitler’s Germany when the Jews had taken the lives of German Christians? Sen’s sympathies are obvious and with such a worldview, can he really pontificate on the idea of Justice?
Among various other issues, he misses out the practice of meting out justice to the so-called war-criminals, and the politics of vested interests and blatant partiality that go into its operation, or the growing practice of seeking apologies by the perpetrators of grievous wrongs to many traumatized communities as in the case of the aborigines of Australia or the Americas.
Sen says, ‘There is something very appealing in the idea that every person anywhere in the world, irrespective of citizenship, residence, race, class, caste or community, has some basic rights which should respect’. (p.355). Let the readers find out if he has really taken us any forward in this direction ?
If one is dealing with historical experiences and wants to be fair, and has something original to contribute to the concept of Justice and its dispensation, too much of an ideological preference could be a serious disqualification, and the whole purpose of any theorizing and the claim of taking a moral stance might be defeated. Moreover, with arbitrary and selective examples, unlike that of Sir Vidia Naipaul and Nirad Chandra Chaudhury, there are all-too visible gaps in Sen’s highly readable but extremely biased narrative.
Many of us by now, are made to wonder like that character in a famous Tagore play who finally exclaimed, ‘I really don’t know what is justice and what is injustice’ (‘nyaya anayaya Janine Janine’).
But then, as Richard II (Shakespeare) profoundly pontificated: ‘Not all the water in the rough rude sea can wash the balm from an anointed king’ !
Shoumendu Mukherji, graduated from the National University of Juridical Sciences, Kolkata and at present is an advocate at the Supreme Court of India and Delhi High Court.
Views in this article are the authors’ personal opinions and do not reflect those of the organizations they are affiliated to.
Dr Saradindu Mukherji is an academic and historian, He was a Charles Wallace Visiting Fellow, department of Politics, Centre for Indian Studies, University of Hull. He was a former Member of ICSSR, He retired as Head of Department of History, Hansraj College, University of Delhi. He is currently a Member, Indian Council for Historical Research.