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““““JUSTICE AND THE COMMON MAN!JUSTICE AND THE COMMON MAN!JUSTICE AND THE COMMON MAN!JUSTICE AND THE COMMON MAN!””””
Law is any system of regulations to govern the conduct of the people of a community, society or nation, in response to the need for regularity, consistency and justice based upon collective human experience. Law and Justice have been existing from the very inception of human civilization. It is impossible to have a civilized society in the absence of law and justice. Of course change is constant; so is the law and justice. They change with the change of society. Contours of law in an evolving society must constantly keep changing as civilization and culture advances. The customs and mores must undergo change with march of time. Justice to the individual is one of the highest interests of the democratic State. Judiciary cannot protect the interests of the common man unless it would redefine the protections of the Constitution and the common law. If law is to adapt itself to the needs of the changing society, it must be flexible and adaptable.
As a student of Indian Jurisprudence I feel tempted to recall that more than a thousand years before Magna Carta was signed, an ancient Indian philosopher of jurisprudence had described the majesty of law in terms which may sound significant and meaningful even today, said the Indian jurist. “Law is the kind of Kings, far more rigid and powerful than they. There is nothing higher than law; and by its prowess as by that of the highest monarch in heaven, the weak shall prevail over the strong and justice will triumph".
In ancient era there did exist law. But, those were only the principles of morality which imposed obligations upon mankind. Even the manusmriti, Arthashastra by Kautilya and the Holy Quran refer to law, judges, courts, advocates. Law has played an important and pivotal role in the story
of human being and morals of society. But, goal of justice remains unchanged. Mr. Nehru said on the 15 th^ of August, 1947 -
“The future beckons to us. Whither do we go and what shall be our endeavor? To bring freedom and opportunity to the common man, to the peasants and workers of India; to fight and end poverty and ignorance and disease; to build up a prosperous, democratic and progressive nation, and to create social, economic and political institutions which will ensure justice and fullness of life to every man and woman.”
The Hon’ble Supreme Court observed “natural justice” is a great humanizing principle intended to invest law with fairness and secure justice ( Menaka Gandhi v. U.O.I; AIR 1978 Sc 597, (Para 58)). But, natural justice is however “no unruly horse, no lurking mine, nor a judicial cure- all.” ( Board of Mining Exaction v. Ramjee, AIR 1977 SC 965 (969). In a famous English decision in Abbott v. Sullivan (1952) 1 K.B. 189, 195, it is stated that “the principles of natural justice are easy to proclaim, but their precise extent is far less easy to define.” It has been stated that there is no single definition of natural justice and it is only possible to enumerate with some certainty the main principles. During the early days the term natural justice was used interchangeably with the expression “natural law.”
There are several decisions of the Supreme Court and English courts, and these judgments are sufficient to summarize and explain essential elements of justice, namely-
a) No man shall be a judge in his own cause, b) Both sides shall be heard, or audi alterem partem.
Again every student has heard of compurgation and of ordeal, and it is hardly necessary to observe that (for e.g.) a system of ordeal by matter in which sinking was sign of innocence and
and rural. Even the literate section of the society at times is also not full aware of its rights. Thus, many a time literate people are also seen ignorant about their rights and remedies. Again, in case of a very few literate people, who know about these rights, find it very difficult to get these rights translated into reality. He has to pass through long procedural and legal condign pipes. How many of them even after undergoing such exercise could successfully see the light at the end of the tunnel?
Paradoxically, the litigant has to wait in a long queue for a long time for his turn. He has to expend not only a lot of money but valuable time as well. In order to search right remedies we must think of maladies. Could there be a proper prescription without there being any proper diagnosis? The consumer of justice wants expeditious and inexpensive justice. In absence of it somebody has observed -“… instead of taking remedy or recourse to law at times we would be tempted to take law into our own hand.” One cannot remain indifferent to this sort of feeling while examining the ways and means for re- shaping and re- enforcing our system, howsoever, one may have a different view.
The nature of the judicial process is such that under coercive winds the flame of justice flickers, faints and fades. The still small, voice is smoothened by subjective tribulations and anxieties and, if coerced, trembles to objectify law and justice. The true judge is one whose soul is beyond purchase by threat or temptation, popularity or prospects. To float with the tide is easy; to counter the counterfeit current is uneasy. And yet the judge must be ready for it, if needed. By habit and training, by the open process of 'adversary' hearing and ordinary obligation for written reasoning, by the moral fiber of his peers and elevating tradition of his profession, the judge develops a stream of tendency to function 'without fear or favor, affection or ill will', taking care, of course, to outgrow his prejudices and weaknesses, to read the eternal verities and enduring
values and to project and promote the economic, political and social philosophy of the Constitution to uphold which his oath enjoins him. But it is sense to treat the person who wears the robes as human, with failings and faltering and affected by the 'total push and pressure of the cosmos'. And so, environmental protection of the judicial echelons from Executive influence, by transfer or other deterrent, is in public interest. But to promote the community's concern for impeccable litigative justice, policy-oriented transfer of judges after compliance with constitutionally spelt-out protocols may not be ruled out.
One can therefore hardly remain blind and indifferent to this grim reality of the situation. We are passing through a very crucial time. We have docket explosion. If no appropriate, no ideal ways and remedies are urgently traced out and also successfully implemented expeditiously, a feeling or apprehension that has August Institution only redeeming ray of hope, may collapse of its own weight; cannot easily be ruled out.
“The hands, which build, are the hands, which pull down", if justice becomes inaccessible to common man for the reason that the skilful counseling of lawyers is not available or for any other reason the result will be anarchy, chaos and lawlessness. The biggest casualty of such a situation would be 'the rule of law and the highest beneficiary of such an unfortunate situation would be the lawbreaker. What the common man would then, miss is justice and what the society, as a whole, would miss is peace.
Highest law of the land is the Constitution of India in which role of each of the three chief organs of the state is defined and ear marked. Any one overstepping or making inroads into the ambit or jurisdiction of the others will be not only contributing emergence of more and more legal battle but it will be unreasonable, unjust and un- constitutional. In this defined, sphere and
widening and expanding. In order to uphold the respect and upkeep of the rule of law judiciary has to play important, effective and efficient role which can be possible only when our system is responded and overhauled so as to keep pace with modern times.
Shall we not interrupt sincerely as to why faith in the judicial system has started shaking? Why confidence of the litigant who is the heart of the system is in trouble? Why does this judicial cardiogram show unhealthy signs and symptoms apart from other unhealthy trends and symptoms pursuant to the judicial cardiogram panorama? The litigant has started feeling that instead of the judge conducting a trial, justice itself is on trial today. This feeling, really, cannot be said to be totally misconceived. There are many contributing factors in the emergence of such feelings in the litigant’s mind. The voice of the litigant is the heart of the system which is soft and weak. It is ignored by voice of desire, it is contradicted by voice of some strong. It is hissed away by hate and finally extinguished by anger.
Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them. The poor in their contact with the legal system have always been on the wrong side of the line. They have always come across "law for the poor" rather than "law of the poor". The law is regarded by them as something mysterious and forbidding--always taking something away from them and not as a positive and constructive social device for changing the social economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services. We may remind the Government of the famous words of Mr. Justice Brennan:
Nothing rankles more in the human heart than a brooding sense of injustice, Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness; and also recall what was said by Leeman Abbot years ago in relation to affluent America:
"If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury, when the poor who need it most cannot have it, when only a golden key will unlock the door to the court room, the seeds of revolution will be sown, the fire-brand of revolution will be lighted and put into the hands of men and they will almost be justified in the revolution which will follow."
We would, strongly, recommend to the Government of India and the State Governments that it is high time that a comprehensive legal service programme is introduced in the country. That is not only a mandate of equal justice implicit in Article 14 and Right to life and personal liberty conferred by Article 21, but also the compulsion of the constitutional directive embodied in Article 39-A.
Though various suggestions, ways and means are pointed out in number of reports. Some of the significant suggestions in, my opinion can be highlighted hereunder:
i. Strong and sound full time legal education. ii. Dynamic, dedicated and totally independent bar and organized litigants.
It is high and right time, more so when we celebrate more than 60 years of India’s Independence, to seriously consider the prevalent judicial cardiogram panorama and to search effective ways and means for efficient restructuring and reshaping schemes so that “ A LITIGANT, CONSUMER OF JUSTICE, ‘heart’ of our system, could receive equal, effective, speedy, inexpensive trial and justice; which is a cry of our constitution.” LET IT NOT REMAIN IN WILDERNESS. It is therefore, I am attracted to state making a HEART (LITIGANT) strong by an effective and efficient judicial mechanism for expeditious and inexpensive justice which shall be really a great tribute in the golden jubilee year of an Independence of India.
BIBLIOGRAPHYBIBLIOGRAPHYBIBLIOGRAPHYBIBLIOGRAPHY
i. Positivism and separation of law and morals (1957-58) 71 Harvard Law Review at p 601 n 25. ii. The Philosophy of a Law, ed. R.M. Dworkin, Oxford University Press, 1977. iii. Chairman, Justice V.S. Malimath, Committee on Reforms of Criminal Justice System, Report, Vol. 1, 2003. iv. V.Venkatesan, The law and delays, Frontline, Vol.19-issue05, Mar.2-15, 2002, Accessed online at: www.frontlineonnet.com v. Speech by N.M. Ghatate, National Conference on "Reinventing Indian Legal System for Achieving Double Digit Economic Growth, Accessed online at: www.ficci.com/media- room/speeches-presentation/2004/apl/apr10-justice-inug.htm vi. Manupatra Dictionary at http://www.manupatra.info/Pers/Personalized.aspx vii. Administration of Law and Justice in Ancient India, Anjali Kaul, Sarup And Sons ,
viii. Our Constitution Defaced and Defiled, N.A. Palkhivala, MacMillan, 1974, p. 29. ix. Administration, Law and Justice in Medieval India, Raj Kumar, Anmol Publications,
