Reimagining Everyday Justice through the Triad of Niti (policy), Nyaya (Justice), and Niyat (Will and Agency)

25 February 2023

http://mainstreamweekly.net/article13169.html

by Shalu Nigam

Scholars all over the world have defined `justice’ as a broad concept of righteousness, fairness and equity. However, justice has many dimensions and includes comprehending situations of injustices in everyday lives that need to be redressed. More so, from the perspective of the Global South, situations of injustices exist despite having well-written constitutions, laws, and policies, besides the existence of an expansive legal system and the administrative apparatus. Perhaps the governance system lacks the political will to enforce the constitutional values, laws, and policies in the true spirit in which they were framed. At times, numerous laws grant limited rights, also, the laws are being weaponized by the powerful. Therefore, what is required is a combination of elements to foster effective, efficient, transparent, and accountable governance, along with the active participation of citizens and civil society organizations. In this essay, I argue that addressing situations of injustice necessitates a triad of Niti (a combination of laws, policies, procedures, the legal, and administrative systems, and bureaucracy), Nyaya (substantive, distributive justice), and Niyat (which includes two components: one, the social, economic, and political will, commitment, or intention of those in power combined with the second, agency of pro-active citizens, and the role of civil society).

Examining the concept of Niti and Nyaya 

Justice is a multi-dimensional and layered concept. Scholars such as Aristotle and Plato advocated for the divine theory of justice, whereas John Locke argued that justice is derived from natural law. Rawls expressed that the concept of justice lies in the social contract [1]. More specifically, distributive justice includes fairness, equity, and setting up just institutions. Amartya Sen [2], in his Idea of Justice, emphasized the importance of Niti, which he described as organizational propriety, and behavioral correctness, and Nyaya, or a comprehensive and inclusive concept of realized justice. While critiquing Rawls’ theory of justice based on his idea of `transcendental institutionalism’, Sen argued that there is a need to move beyond the concept of perfect justice because there are plural views of what is just. Sen concluded that, along with niti, the nyaya-oriented approach is significant in determining the value of the government and the kind of society it produces.

More recently, the present Chief Justice of India, DY Chandrachud, in his lecture to the students on hate speech in August 2022, while distinguishing between legality and morality, argued that `niti’ (law) does not always result in `nyaya’ (justice)’ and therefore, a lawyer is required to follow the `path of conscience and equitable reason’ to reimagine law [3]. Perhaps, the lecture is intended for law students as potential lawyers, and therefore, it missed the crucial part relating to the role of the judiciary in interpreting the laws. For instance, feminists have criticized how androcentric law overlooks the female point of view to promote patriarchal interests while using male reasoning [4]. Frequently, in situations of violence against women, the courts have ended up delivering sermons to the survivors rather than upholding the principles of justice [5]. Technicalities are prioritized over the rights of the oppressed [6]. Scholars have demonstrated that the law is a subversive site [7].

Law, frequently, maintains order but fails to protect the citizen’s rights [8]. Rather, the laws and policies that are intended to support the oppressed are interpreted to favour the dominant groups. More recently, the grant of remission in the case of Bilkis Bano, the manner in which the petition filed by Zakia Jafri is handled by the Supreme Court, and the arrest of activist Teesta Setalvad, raised several questions [9]. In many other cases, such as the refusal of bail to Umar Khalid, and the imprisonment of young women who protested against the citizenship amendment law, all demonstrated how justice is being denied in selective cases. The laws are weaponized by those in power [10].

Despite the existence of a well-written constitution that guarantees equality, liberty, and justice, and the laws and policies that protect the rights of the disadvantaged, it is poor governance that is causing suffering, lost opportunities, and injustices of all kinds that are compelling a majority of people to live in intolerable misery. For those on the margins, the terrible forms of everyday injustices include dealing with unreasonable situations of starvation, denial of livelihood, denial of health, and denial of education, as well as discrimination and violence of all forms to deprive them of the right to life with dignity. Biased policies can sometimes result in uneven development by empowering the powerful while disempowering those on the periphery [11]. Also, the law is being used by authoritarian governments to stifle dissent [12]. Numerous laws grant limited rights.

Additionally, to obtain justice in their everyday lives, the common people need to deal with the mighty state and Kafkaesque bureaucracy. Lack of good governance is deemed a critical factor in widening injustices. An increase in the nation’s wealth has not eliminated poverty or reduced economic inequalities. Material success is not leading to social success [13]. Economic inequalities are widening due to anti-people policies and not due to a lack of resources. Persistent inequality, poverty, and exclusion of the marginalized, are most often the result of policy choices, and they persist due to a lack of political will [14]. Obstacles persist due to uneven priorities in resource allocation and data collection, inadequate resource mobilizations that favour dominant groups, exclusionary policies, and so on [15]. Moreover, the regulatory framework lacks adequate provisions to hold the enforcers accountable for non-compliance with the safeguards relating to transparency and integrity.

Therefore, focus is to be laid on the transformative potentials of nyaya and how niti and nyaya are implemented on the ground to impact the rights of the marginalized. Analysing the above situations demonstrate that Niti (laws and policies) alone is not leading to justice, or nyaya, because this dyad is not accompanied by the niyat, or political will, of those in power, including state functionaries. The niti-nyaya approach has limitations because it does not consider Niyat or the will and the intent of the state actors in putting the laws and policies into practice or bringing structural reform addressing and challenging the core of patriarchy, casteism, racism, class-interest, biases, corruption, and various other social obstacles to building the just societies. The will of the government or the niyat-oriented approach is critical to practically enable the environment, in which injustices could be redressed, inequities could be reasonably remedied, and justice could be advanced. According to research, the political will or Niyat to implement actions through policy measures can aid in the reduction of social inequities. Furthermore, citizens and civil society must play an important role in the governance process by monitoring, evaluating, and raising concerns about disadvantaged groups.

To redress situations of injustices, what is required is accountable, transparent, and efficient governance based on the triad of niti, nyaya, and niyat. The Niyat- oriented approach broadly includes two components: 1) political commitment and intent of state actors to bring reforms; and 2) participatory governance, where the state provides a space and mechanism where citizens and civil society actors proactively participate in the process of meaningful decision-making and could make governments accountable. This two-layered strategy is essential for eliminating poverty, reducing inequalities, and achieving development goals.

The element of political commitment is crucial

In general parlance, the term `political will’ includes intent and commitment on the part of leadership to achieve goals of development and the common good or to initiate sustained reforms until the desired results are achieved. Hammergren [16] opined that political will is “the slipperiest concept in the policy lexicon. It is the `sine qua non’ of policy success, which is never defined except by its absence. It thus becomes the explanation for every policy failure despite the fact that so many programs are undertaken where it certainly does not seem present.”. Brinkerhoff [17] defined political will as “the commitment of political leaders and bureaucrats to undertake actions to achieve a set of objectives and to sustain the costs of those actions over time”. It contributes to effective and efficient mobilization and allocation of resources, as well as to enhance the enforcement capacity of the actors [18].

Malena [19] identified three mutually reinforcing elements of political will to include a sum total of political want, can, and must. For power holders to commit and act in favour of a certain cause, they need “to want to undertake a given action, feel confident that they can undertake that action, and feel that they must undertake the action” [19]. Lack of political will is recognized as a critical reason for the failure of anti-corruption measures when the power-holders are required to act for the common good and against their self-interest [20]. Though political will is an ambiguous and imprecise concept, it remains a cornerstone for determining policy processes and outcomes [21]. A political will enables leaders to adopt a facilitative style of leadership [22]. Political intent or commitment is critical in implementing reform measures [23]. Those in power allocate resources, make and enforce laws and policies, and create an enabling environment for reforms to be effectively enforced. They are the principal actors who may change the prevailing culture to enhance justice [20].

Political will, therefore, is a complex, multilayered concept that has many dimensions and is hard to measure or assess because its existence is linked to the action it supports. Creating political will to eliminate inequalities requires a three-pronged approach: 1) An institutional change to recognize and acknowledge the rights of marginalized groups; 2) Recognizing disadvantaged groups as partners in change; and 3) A moral shift in the norms and approach to adopt a pro-equity position.

People’s agency and participatory governance are also critical elements of Niyat

Participatory governance is essential to redressing the situations of injustices and reimagining justice in a broad manner. To reshape the concept of efficient participatory governance, democracy must be redefined broadly beyond the procedure of regular periodic elections to include an idea where people proactively participate in the process of governance and decision-making to hold governments accountable. The social choice theory based only on the niti-oriented approach that pushed for the idea of aggregating the preferences of voters as a viable democratic procedure is limited, narrow, and problematic. Involving people in decision-making becomes critical to widening the parameters of justice rather than limiting it to courtrooms or the corridor of powers. Understanding political processes to reinforce people-oriented actions helps reduce social inequities [24].

Participatory governance also necessitates the active participation of non-state actors, such as active civil society. Participation empowers those oppressed and helps to improve the process of governance. Citizens, as change agents, and actors in civil society may play a proactive, vigilant role, to create pressure from below besides playing their role in service delivery, though individual agency is determined by a variety of factors. The participatory governance process serves as a catalyst for a progressive transformation in which ordinary people assert their freedom and choice by raising concerns and demanding accountability and transparency from state actors.

Reimagining Justice through the Triad of Niti, Nyaya, and Niyat

The preceding discussion demonstrates that all three elements, niti, nyaya, and niyat, become critical in shaping and reimagining justice in societies where disillusionment with governance grows, leading to mistrust between citizens and states, and where people on the margins are excluded from the governance process. Political will is essential to substantively implement the niti-nyaya paradigm to create equal societies. The existence of a normative framework is insufficient unless it is accompanied by the commitment of the part of state actors to put the principles of social justice for the marginalized into practice, as well as meaningful engagement with the citizens and the civil society actors to strengthen democratic ideals. Holding the state accountable to deliver on its commitment and enforce a concrete action plan to achieve the goal of social justice through participatory governance is essential. Reforming the patriarchal, casteist, and unequal hierarchical institutions is insufficient without the active participation and commitment of those who are at the receiving end as well as those on the delivery end. The persistent gap between rhetoric and reality needs to be bridged through tangible, serious actions. Addressing the root causes of oppression necessitates targeted actions. The trend of increasing inequalities could be reversed and justice could be promoted by incorporating feminist consciousness into the process changing the norms and processes, rethinking them through the trifecta of niti, nyaya and niyat in conjunction with the trifecta of hope, imagination, and possibilities to create a just world [25].

(Author: Shalu Nigam is an advocate and an independent researcher working at the intersection of gender, human rights and governance. She has published several books and papers. Her recent publications include Domestic Violence Law in India: Myths and Misogyny (2021), Women and Domestic Violence Law in India: A Quest for justice (2019) and the Founding Mothers: 15 Women Architect of Indian Constitution (co-author, 2016)

Notes:

[1] Rawls John (2001) Justice as Fairness: A Restatement, Edited by Erin Kelly, Harvard University Press, US
[2] Sen Amartya (2009) The Idea of Justice, Penguin Books, England.
[3] Singh Ratna (2022) Niti does not always result in Nyay; speak truth to power, stand up against hate speech: Justice DY Chandrachud, Bar and Bench, August 8, https://www.barandbench.com/news/niti-does-not-always-result-in-nyay-speak-truth-to-power-stand-up-against-hate-speech-justice-dy-chandrachud
[4] MacKinnon Catharine A (2005) Women’s Lives: Men’s Laws, The Belknap Press of Harvard University Press, Cambridge
[5] Nigam Shalu (2021) Domestic Violence Law in India: Myths and Misogyny, Routledge, Delhi
[6] Nigam Shalu (2019) Women and Domestic Violence Law in India: A Quest for justice, Routledge, Delhi
[7] Cossman Brenda and Ratna Kapur (1996) Subversive Sites: Feminist Engagement with the Law in India, Sage Publication, India
[8] Tripathi Salil (2022) The judiciary should protect our rights and not just ensure order, Livemint.com June 29, https://www.livemint.com/opinion/columns/the-judiciary-should-protect-our-rights-and-not-just-ensure-order-11656519713083.html
[9] Venkatesan V (2022) The outrage over denial of bail to Teesta Setalvad and grant of remission to Bilkis Bano’s convicts shows it is not easy to erase recent history, The Wire, August 21, https://theleaflet.in/the-outrage-over-denial-of-bail-to-teesta-setalvad-and-grant-of-remission-to-bilkis-bano-convicts-shows-it-is-not-easy-to-erase-recent-history/
[10] Nigam Shalu (2022) Demystifying the power of law, Tedx talk delivered on 12th March at Tedx@SIBM Bengaluru, https://www.youtube.com/watch?v=xybT6pAr-8E&ab_channel=TEDxTalks
[11] The Wire (2016) Eight out of ten claims made by tribals for land rejected by state, July 28, https://thewire.in/rights/tribal-land-claims-rejected
[12] The Wire (2023) NIA raids human rights lawyer who represented PFI leaders in HC, seizes books, February 18, https://thewire.in/government/ansar-indori-nia-raids-pfi-human-rights
[13] Wilkinson Richard and K Pickett (2009) The Spirit Level: Why Greater equalities make societies stronger, Allen Lane UK
[14] United Nations (2018) Main barrier to tackling inequalities is lack of political will, https://www.un.org/uk/desa/main-barrier-tackling-inequalities-lack-political-will
[15] DFID (2010) The Politics of Poverty, Elite citizens and the state, https://www.oecd.org/derec/unitedkingdom/48688822.pdf
[16] Hammergren Linn (1998) Political will, constituency, building and public support in rule of law programs, available at https://issat.dcaf.ch/content/download/2200/19056/file/Hammergren%20Political%20Will.pdf
[17] Brinkerhoff, DW. (2000) Assessing political will for anti-corruption efforts: an analytic framework. Public Administration and Development, 20(3) 239-253
[18] Raile ANW, ED Raile and LR Post (2018) Analysis and Action: The Political will and public will approach, Available at https://scholarworks.montana.edu/xmlui/bitstream/handle/1/15196/Raile_AR_2018_FINAL.pdf?sequence=1&isAllowed=y
[19] Malena Carmen (2009) From political won’t to political will: Building support for participatory governance, Kumarian Press and CIVICUS
[20] Martinez Roberto and B Kukutschka (2015) Building Political will to fight corruption, Transparency International, https://knowledgehub.transparency.org/guide/topic-guide-on-building-political-will-to-fight-corruption/5136/
[21] Lori Ann Post, N Amber, W Raile and ED Raile (2010) Defining political will, Politics and Policy, 38(4) 653-676
[22] Teles Filipe (2014) Facilitative mayors in complex environment: Why Political will matter? Local Government Studies, 40(5) 809-829 doi.org/10.1080/03003930.2013.801835
[23] Chancel L. (2018) Main Barrier to Tackling Inequalities is Lack of Political Will. https://www.un.org/development/desa/en/news/social/main-barrier-totackling-inequalities-is-lack-of-political-will.html
[24] Baum F, B Townsend, M Fisher et.al. (2022) Creating political will for action on health equity: Practical lessons for public health actors, IJHPM 11(7) 947-960 doi 10.34172/ijhpm.2020.233
[25] Nigam Shalu (2022) Feminist Foreign Policy in India: A Trifecta approach to hope, imagination and possibilities, IMPRI, October 25, https://www.impriindia.com/insights/feminist-foreign-policy-trifecta/