Triveni Journal

1927 | 11,233,916 words

Triveni is a journal dedicated to ancient Indian culture, history, philosophy, art, spirituality, music and all sorts of literature. Triveni was founded at Madras in 1927 and since that time various authors have donated their creativity in the form of articles, covering many aspects of public life....

The Judiciary in a Democratic System

Mr. Justice Y. V. Chandrachud

Mr. Justice Y. V. CHANDRACHUD
Formerly Chief Justice of India

There was never a time, which called for greater alertness in order to ensure that democracy serves the public interest. In a way, democracy as a form of government is itself on trial in the midst of the propaganda that it lacks character, efficiency and a genuine desire to meet the needs of common men and women. The answer to these allegations can only be that our democracy is responsive to the public good–not the good of the few but that of the largest number.

The main question to be considered is whether our judicial process has achieved a stable measure of democratisation and humanization. Democratisation of justice implies that the judicial process must be made available to the common man promptly and cheaply. In the field of law, it is regarded as axiomatic that law in a democracy is a command of reason, the object of which is to achieve the common good. If that be so, it must follow that justice cannot be allowed to be monopolised by the privileged or the economically advantaged sections of the society. The true success of any judicial process consists in its ability to solve the daily problems of millions of unfortunate people who are unequal to the others.

A Unique Approach

The Supreme Court of India has struck a new path in this regard by embarking upon the unprecedented venture of public interest litigation. The court treats post-cards as writ petitions and, after issuing notice to the other side, grants relief to persons who cannot possibly have access to the law courts because of the enormous expense which it involves Both expense and time are saved by this process. There is always a certain amount of risk involved in acting upon grievances not stated on oath, but grievances supported by oath are also not necessarily true. The judges, with their training and experience, can be trusted to take care of deceptive situations.

The second important consideration is humanisation in the administration of justice. Today, our country is passing through unforeseen difficulties, but perilous times are also challenging times. The judicial process must stand up to such challenges and ensure that justice is administered with an even hand. The glory of law is that it always lives to fight another day for the cause of justice. Summary procedure has to be resorted to by the trial courts in unprecedented situations. The higher courts, however, examine the record with more than ordinary care for the simple reason that the normal safeguards of a full-fledged trial were not available to the accused.

No Government can afford to condone or connive at crimes which tend to threaten the very foundation on which the edifice of a democracy rests. Whatever may be the end to be achieved, it cannot be overlooked that even the most compelling purpose has to be achieved through a judicial process which is sensitive to the norms of fair play in each individual case. The fulfilment of democratic ideals consists substantially in the faith which the people repose in their system of justice. The fundamental premise is that you cannot put a person in peril of his life without according to him the substance of a fair trial. The Supreme Court which is the first appellate court in specific matters, ensures that this salient safeguard is observed scrupulously.

Rehabilitation of Criminals

It is also necessary in the field of criminal law to place adequate emphasis on the rehabilitation of criminals. This alone is the manner in which wayward lives can become productive lives. The more the society attempts to perpetuate the stigma attached to a crime, the lesser will be the chance of rehabili­tation of the criminal, and naturally lesser will be the number of persons who can be turned into useful citizens. The syndrome of criminality has to be reversed through the medium of the judicial process. For that purpose, the process of law has to move “in the thick of things.”

We must resist any sense of frustration or despondency in so far as the working of the judicial process is concerned. We must find courage and resourcefulness to reform the system of law even radically if necessary, so that it becomes an instrument of justice, not a weapon of harassment and oppression. There are infirmities in our judicial process today which, if not cured promptly, are likely toerode the very credibility of our legal system.

In the first place, the system of investigation of crimes as well as the mode of prosecution of criminals must be re-examined. Criminal investigation has to be made more objective and indepen­dent. At the same time, the trial of criminals has to be more speedy and less ridden by technical rules of procedure and evidence. It is unfortunate that our traditional training teaches us to respect nothing but technical evidence and to believe that our highest duty lies in submitting to it, however much it may be against our inclination and common sense.

One important weakness of our system of justice is that it does not contain a built-in mechanism for mediation and negotiation. Again, it positively discourages the arbitral process There is no provision in any of our laws except in the industrial laws and to some extent, in the matrimonial laws, which makes it obligatory for the prospective litigants to try to resolve their differences through out-of-court settlements. Mighty preparations are made by litigants to take their disputes to the courts and once the court is approached it becomes too late for the parties to retrace their steps. The normal human tendency is to carry a court case to its logical conclusion by fighting to the bitter end. In matrimonial cases, when judges of the higher courts call the parties to their chambers for exploring the chances of a settlement, the most serious stumbling blocks are the frivolous questions put in the cross-examination, casting aspersions on the moral character of a spouse. The impression which any observer of the judicial process forms is that the whole process is somewhat isolated or divorced from the realities of life. A constant con­sciousness of the desire to do justice seems conspicuous by its absence. There is no central philosophy which would seem to guide or govern the steps which the courts take from time to time. Trial judges have to realize that they are not automatons appointed for taking down scurrilous evidence motivated by malice.

A famous judge has said that, while civilization has survived in bygone years without science, there never has been a civiliza­tion which has survived without a system of law adapted to its peculiar needs. No society is stagnant, no society stands still and no society can suffer an outrage on decency. Therefore, unless the legal system adapts itself to the changing needs ofthe people, even the most inveterate faith in law will not assure its viability in the challenging conditions of our time. For achieving this deal ad hoc therapies for isolative trouble-spots are wholly inadequate. What is necessary is to identify the key points for adjustment between the framing and implementation of laws on the one hand and the aspirations of the society on the other. Students of law are familiar with Dicey’s notorious formula­tion that the legislature lags a generation behind public opinion and the courts lag another generation behind the legislatures. Procedure, which is the hand-maiden of justice, should not be allowed to become its tyrant master.

Role of the Legislature

The legislature has a very significant role to play in the matter of law reform. In the context of the emerging complexities, a mere guess-work of politicians sprinkled with the skill of the legal draftsman would not be an adequate basis for law reform. The Indian Parliament has to face a herculean task in trying to reconstruct the life of the bulk of its people. The innate opposition of the village community to development plans, the parochial patterns of caste authority and the domination of intrigues based on casteism furnish unmistakable evidence of the chasm between the vision of the law-maker and the inherited social system. The challenge has to be met even if the wheels of law reform grind slowly.

Instead of beating their luminous wings in vain, like Shelley’s angel, the lawyers, the judges and the academics must get down to earth and its problems. In the words of Dean Pound, they have all to be social engineers who would keep law and life in a harmonious balance. In the ultimate analysis, the law and its technique are the husk, not the grain. The grain is equality. Therefore, protection of human dignity has to be one of the fundamental endeavours of law and equality in human affairs one of its vigorous impulses. Law, undoubtedly, is a science of language but, it is not mere words which sustain the law. Words remain empty unless they are complemented by practical action.

In the context of the goals which our Constitution envisages, the concept of justice has assumed a new significance. A system of justice accessible to all and responsive to the genuine public interest is indispensable to the functioning of a democracy. There­fore, justice has to be a dynamic rather than a static concept. It must imply an affirmative or positive action rather than the mechanical application of disembodied statutes. In that sense, justice is both the end and the means to an end. The value of the courts as instruments of justice depends upon the wisdom of those who use that instrument. A sense of confidence in the courts is necessary to maintain the fabric of liberty for a free people.

These are some of the challenges to the judicial process in a democratic polity. We must find wisdom and courage to pursue our endeavour to meet these challenges. The ultimate goal which has to be achieved through the judicial process is the creation of a just society. No sacrifice can be too great to ensure that every body has a roof over one’s head and gets at least a square meal a day. Law must live to fight for these goals.

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