(Article) CSM - September 2013: Justice Must Reach the Poor
When Sir Elijah Impey enthroned himself on the coveted position of the Chief Justice of Supreme Court in 1773; the journey of the dispensation of justice in ‘modern’ India began. Obviously, this does not imply the nonexistence of justice, more so; propoor justice in pre-modern India. Who will not reminisce the evolution of the Indian Judicial system since the era of the nomadic communities in the Rig Vedic period to the individual brilliance of Jehangir in the form of Janzeer-i-adl. The Judicial system in India had been well structured, though at times reaching the zenith of glory or the abyss of disgrace during the periods of individual feudal lords, kings or emperors.
Nevertheless, till the advent of the concepts of Western Democracy and Justice, probably there was no serious thought regarding “Justice” to be ‘just’ !! Since antiquity, justice in India (if not in the rest of the world too) practically was viewed as the decrees bestowed on the society by a privileged lot, the lot being the Brahmins, the Kings, the Ulemas or the Badshahs, including the regional variations of these nomenclatures. Whether it was the Manusmriti or the Quran, whether it was the Temple Priest or the Qazi, on the majority of occasions, Justice in India had been the prerogative of a coterie.
So, when the Supreme Court in Calcutta (now Kolkata) was set up as one of the provisions of the Regulating Act (1773), it must have evoked a response of gayness, at least amongst the progressive denizens of the city. But soon it was to falter in its objective of being a “Court of Equity” as Nand Kumar was denied access to ‘just’ “Justice”. With time, Indians overcame the initial mesmerization regarding the British system of Justice when the Ilbert Bill was vehemently opposed and not put into effect! Hence historically, Justice was belied, if not denied, to the native Indians, probably because of racial arrogance of the Britishers or due to the very nature of Justice itself ! Indians at that period, meant Indians of all variety, whether rich or poor.
With the dawn of independence, the free Indians dreamt of a different society altogether, far from the clutches of foreign oppression and closer to the Utopia of social integration. But whether free India has really been able to cherish her dreams of pluralism and justice through its arduous journey in the last six decades still remains a matter of debate. Probably the starting point of the ‘goof up’ had been the rampant imposition of the British system of Justice on a society which was hardly aware of it, either from the point of view of the concept, or from the perspective of language.
Moreover, Indians never did a Phoenix act in regard to our struggle for independence which meant that the masses were in oblivion of the romantic ideas of Liberty, Equality, and Fraternity and for that matter, Justice. Nor were we well accustomed to Socialism and Social Justice; the rights of the proletariat and the farmers being out of question.
It would be pertinent to put forward the various dimensions of Justice as viewed in the modern sense of the term. The traditional concept of Justice was the observance of a lifestyle as of Yudhisthira, while presently, we
have the idea of Social Justice; in which Legal, Political and Socio- Economic notions of Justice comprise a continuum within the general scheme.
On top of these, the concept of Human Rights forms the complete set of Justice. In independent India, the Fundamental Rights as enshrined in the Constitution, the Democratic polity, along with the implementation of the Directive Principles, probably in totality usher in the idea of Social Justice. Nevertheless, we need to scrutinize the functioning of the said rights and principles in order to substantially fathom the status of Justice in India at present. This would in turn aid us to devise suitable mechanisms so as to reach the teeming millions and hence invigorate our society. Theoretically, the term legal justice can broadly be applied in the following two contexts :
(a) Justice according to Law, and
(b) Law according to Justice
Presently, in India, we have legal justice in both these forms. Article 14 of our Constitution proclaiming ‘Equality before Law’ pertains to context (a) whereas Article 17 concerned with the Abolition of Untouchability can be associated with context (b).
However, the implementation of these Articles in reality for the past six decades has been the actual matter of concern. Has the Indian Judiciary, with its pyramidal hierarchy and top heavy status, been able to reach the ordinary masses, especially in the countryside? If yes, then why are there still practically uncountable number of cases pending in the lower judiciary, if not in the State High Courts? Why is there still umpteen number of instances of nepotism and corruption associated with our Judiciary? And why the common man on the street has shivers down his spine if asked to visit the premises of the local court? These are some of the queries which paint the ‘not so august journey’ of our esteemed Judiciary over these years! Now, what could be the reasons behind this sort of dismal situation? May be the ever increasing population, may be the ever decaying value- ystem or may be simply the lack of will of the Indians to fix the system and blame everything on the politicoadministrative set up of the country.
Whatever it is, the flaws need to be plugged soon, if India desires to stand up against the onslaught of globalization since its quality manpower is in great demand in this era of liberalization. And if the common masses are uplifted through a just system of Justice, it would be a perfect icing on the cake!
The scheme of rectification, inter alia, may include the following:
A transparent and merit based system of recruitment of Judges, right from the lowest echelons of the system. An All India Judicial Service by invoking Article 312 of the Constitution may be an apt tool in this regard. Accountability of the Higher Judiciary: the inception of the All India Judicial Council might be the right step in this direction. Accessibility of the Judiciary for the downtrodden: implementing Article 39A (which speaks of Free Legal Aid) of our Constitution as a Fundamental Right might be Utopian at this present juncture but is probably unavoidable in the long run for a just and egalitarian society.
At least, the economic criterion for free legal aid could be made somewhat practicable, in the light of the scenario of inflation and rise in the level of the exemption limit for taxation. Notwithstanding the innumerable potholes in our system of dispensation of Justice, we have achieved a gamut of things; the movement of the Public Interest Litigation being the premier part of it. It has indeed established a holy connection between the downtrodden and the Nyayalaya. The institutions of the Fast Track Courts and Lok Adalats are the other feathers on the cap of the Polity- Judiciary combo. A commendable work forsooth. Still, we have a long path to tread, with alacrity but with caution!
On the other hand, Political Justice can be conceived as the transformation of political institutions, processes and rights so that the benefits spread across the whole spectrum of the populace. This implies the existence of a Democratic form of polity where the judiciary is separated from the executive (in actuality), “rule of law” overwhelms the arbitrariness of the legislature, and universal adult franchise dictates the selection of the legislature (more participation of the electorate).
If we delve into the present political structure of India, probably we are forced to affirm that Political Justice is prevalent in our milieu. But then, does this conclusion take into consideration the intricacies and the inherent bottlenecks of the implementation of Political Justice or does this inference take into account the political history of India since 1947? If we carefully analyse the situation in the light of these perspectives, we are probably urged to withhold our verdict. We have had a total of 14 Lok Sabha elections till date and in all these elections, hardly more than 55% of the total electorates visited the polling booths on each occasion. Though the percentage of highly educated parliamentarians have kept on rising steadily with each Lok Sabha on one hand, criminalization of politics have also shot up on the other. Though there is a constant endeavour to make the parliament popular by showcasing it in TV channels on the one hand, events like cash for query scam, 2G spectrum scam and hordes of other scams have denigrated its status on the other.
Nonetheless, inspite of all the flaws, India has stood the test of time. Compared to its not-sofriendly neighbour Pakistan, India has kept the edifice of Democracy intact for the past six decades and continues to improve, though on a snail’s pace.
Revolutionary steps like the enactment of the 73rd Amendment Act (Panchayati Raj) and the 86th Amendment Act (Right to Education as a Fundamental Right) have given us the hope that Indian Democracy, if need be, can sustain the tsunami of Autocracy, Theocracy or Plutocracy. Further steps like the reservation of seats in parliament for women shall be a positive move in the right direction.
There can also be innovative steps; for instance, having a knowledge-based filtration of the political leaders. The merit of the political leaders could be judged by an independent body like the Union Public Service Commission; on similar lines that is followed to recruit bureaucrats. This may provide a fillip to the modus operandi of the present democratic functioning in India and help us reach asymptotically a modus vivendi.
The discussion on Political Justice is automatically linked to the term ‘socio-economic’ justice. This idea is best comprehended by understanding the interrelationships between the workerpeasant combo with the entrepreneur-landlord nexus, between the trader and the consumer and such others. India is surely focusing on economic growth with social justice as this is also the motto in the centralized 5-year plans. In an era where the French President Sarkozy is taking the assistance of stalwarts like Amartya Sen to redefine economic growth, a mere increase in the percentage growth in the economy or the spurt in the Stock Market hardly speaks of the development scenario.
Hence, schemes like the National Rural Employment Guarantee, Bharat Nirman, National Urban Renewal Mission, National Rural Health Mission and Golden Quadrilateral hold the key towards an ideal society. Moreover, with the Red Menace engulfing one-fourth of our geography, it is high time for us to wake up and pay heed to the voice of the masses. Indiscriminate imposition of industrialization from above without inspecting its repercussions would be nugatory. Importantly, safeguards for the minorities, the Adivasis and other deprived sections of the society should be the foremost agenda of the politicians.
A skewed society with the majority of the population in the countryside starving; even swallowed by the jaws of death due to lack of monetary credit, a group of urban disasters in the name of cities which comprise a series of slum-dwellings and improper infrastructure on the one hand, and a rising middle class with all its concomitant consumerism on the other is not the situation which our freedom-fighters had envisioned. Cohesion of the three different forms of Justice and its ultimate reach to the common man would indeed create a humanized and holistic society which not only the Indians crave for, but also the humanity as a whole aspires for.