Apart from simplifying the cumbersome legal procedures, finality in judicial pronouncements need to be ensured within a reasonable time frame so that the people in need do not avoid seeking legal redress for fear of uncertain duration
Justice is often defined in multiple terms. There can be no universal definition of justice. True meaning of justice will inadvertently emerge from the philosophy and jurisprudence behind legislations, customary practices and age-old traditions. There are different schools of thought of justice varying from Plato to Aristotle. The western school of legal thought has largely remained proximate to the Platonian view of justice which says. “Justice is, at once a part of human virtue and the bond, which joins man together in society. It is the identical quality that makes good and social. Justice is an order and duty of the parts of the soul; it is to the soul as health is to the body. Plato says that justice is not mere strength, but it is a harmonious strength. Justice is not the right of the stronger but the effective harmony of the whole. All moral conceptions revolve about the good of the whole-individual as well as social.”
A more contemporary definition of justice is provided by Michael Sandel, Professor at Harvard who in one of his interviews observed, “Well the simplest way of understanding justice is giving people what they deserve. This idea goes back to Aristotle. The real difficulty begins with figuring out who deserves what and why. Broadly speaking I think there are three answers to the question ‘What is justice?’ There’s the utilitarian answer which says justice means maximising happiness. Answer number two, given by Immanuel Kant, which says that justice is a matter of respecting human dignity, certain categorical duties and rights. And the third answer is the answer that Aristotle gave: justice means giving people what they deserve, where what they deserve depends on their virtue and depends on sorting out hard questions about the good life.”
Justice in the Indian context has a more nuanced character and background. Nyaya and Dharma has been at the core of the civilisational consciousness of our nation. Justice has been an integral and inseparable part of our culture. The role of Lord Krishna in the Mahabharata as the charioteer of Arjuna in the war over the evil represented by Duryodhana is also an important case in point to decipher the eternal modalities of justice. The recent Indian experience of justice has its origin in the constitutional framework. Men and women who drafted the Constitution were people of great vision and foresight. The Preamble of our Constitution vociferously focuses upon three key dimensions of justice i.e. social, political and economic. Apart from the Preamble, the Directive Principles of State Policy of our Constitution also in Article 39A mandates the State to provide free legal aid to ensure that opportunities for securing justice are available to all citizens irrespective of economic or other disabilities. Although the Directive Principles are not enforceable in the court of law, they are fundamental for the governance of our nation.
Justice Delayed is Justice Denied
One contradiction to the above saying is ‘Justice hurried is justice buried’, which is often observed by the bar and the bench in unequivocal terms in defence of prolonged procedures. The most significant problem with the justice delivery system in India is judicial delays.
Establishing adequate benches of high courts is one immediate resolution that comes to mind to deal with the menace of judicial delays. The Law Commission of India in its 230th report dated August 2009 entitled, “Reforms in the Judiciary – Some Suggestions,” has advocated for the creation of new benches of High Courts. The report observed: “… It is also necessary that the work of the High Courts is decentralised, that is, more Benches are established in all States … It is also in the interest of the litigants. The Benches should be so established that a litigant is not required to travel long.” There can be more advantages stemming out of this policy prescription.
Legal education is another important avenue where we can sensitise budding advocates to the needs and predicaments of our judicial system. Creation of additional high courts will eventually bring proximity to law schools. An institutional arrangement can be made wherein a young lawyer can get exposure to the judicial processes and evolve a more pragmatic thought process on the dispute resolution.
Shri Vikramjit Banerjee, Advocate General for the State of Nagaland observes that, “ There should be diversity amongst the judiciary on all social parameters like gender, caste, region etc. and Judicial powers should be devolved away from the courts and magistrates to village and community courts with the decisions being subject to Article 226 of the Constitution of India.”
Capacity building programmes at an appellate level is another way out for prompting the judicial process. Judicial appointments have strictly remained under the purview of collegiums. The efficacy of collegiums have been widely discussed and debated by both the Judiciary and the Parliament. The jury is already out on the issue. Performance based appraisal and appointment in a judicial context could be a rational method. Judges with more qualitative output may be incentivised.
Shri P Puneeth, Associate Professor of Law at Centre for the Study of Law and Governance in Jawaharlal Nehru University, opines, “It is axiomatic that 'access to justice' and 'access to courts' do not mean one and the same thing. But, the courts are important institutions to seek redressal against several (though not all) kinds of injustices. Thus, it is important to make courts accessible, legal services and processes affordable and justice delivery system inclusive. No doubt, major judicial reforms are needed to achieve this. It cannot be done as long as conveniences, career interests and earnings of lawyers and judges remain the important concerns in effecting judicial reforms.”
Ms Saema Jamil, Lecturer at a private Law school in Greater Noida, says, “Access to justice also needs to be seen from the accused’s and victim’s point of view. There are times when the police frame the accused under sections which are well beyond the purview of the crime. This may amount to a great disservice to the cause of justice. Similarly, from the victim’s perspective, usually standardised facts are used instead of facts that are peculiar to the case in point.”
Srihari Avuthu who practices Law in Hyderabad observes: “The legal and judicial processes that are in vogue today are cumbersome and time consuming. The procedures need to be further simplified and finality in judicial pronouncements must be ensured within a reasonable time frame in all cases so that people in need do not avoid seeking legal redress for fear of having to cling on to judicial process for far too long. The legal services authorities must come to the aid and rescue of those in need who cannot afford to engage advocates on their own for want of economic resources. The services provided by legal services authorities must be qualitative else there is risk of the needy failing to get effective justice for want of appropriate legal aid.”
Shri Abhinandan Mishra, a senior journalist with Sunday Guardian, feels, “People still fear going to courts because of the procedural requirements; that fear needs to go. Until the fear is gone law and justice will not become effective. We all know how easy it is to manipulate justice if one has the right connections. Litigants have to wait for days and months for their case to be listed and then again for years for a verdict to be delivered. Access to justice doesn’t mean how easy it is to list a case but it is more about how soon the case will be heard and pronounced without being impacted by any extraneous reasons.”