In modern times, Peoples' Security and Progress are sought to be secured through codified laws and scheme of Justice is thus introduced to secure that Security and Progress. The whole scheme of Justice it appears in its most common acceptation implies the giving of every man his due.
What is due then may be attended and satisfactorily answered.
"Due" emerge from legal relationship.
The relationships are family based & business based, employment based & consumer based, may be of Govt & Citizens, and may be between Citizens & citizens.
These relationships are called as Contracts.
The existence of legal contract, whether formally written or informally unwritten, is the foundation on which any litigation is built against somebody.
Then, I think, what are the ingredients of "Legal Contract" may be attended.
There were ancient times immemorial when there were no laws to govern and man were sovereign; and with passage of centuries together, from aristocracy, the cherished concept of democracy evolved, wherein all man voluntarily decided to transfer their sovereignty to State sovereignty.
It may be of some importance & also of some necessity to dig this land holding laws and legislation and trace the evolution and development of law, the emergence of concept of subject & the ruler, and trace the origin of today's concept of democracy and consequent Citizens & the State.
At the advent of Human Civilization, ‘Men’ were Sovereign in their own, in the sense that, they were free and were not subject to or bound by any law. Then, men were Ruled by their own conscience and not by codified laws and were even free to the extent of inflicting violence at their will & strength, i.e. Might is right was the scene. men were guided by own conscience and greed. An action not emanating from reason and the freedom to do as one pleases.
Great Philosopher Thomas Hobbes ( 1588- 1671) says that prior to concept of Statehood, the man lived in chaotic conditions of constant fear. The life in the state of nature was solitary, poor nasty, brutish and short. For getting self protection and avoiding misery and pain, man voluntarily entered into a contract and surrendered their part of freedom to some might authority, who could protect their lives and property, which emerged later on as the ruler and which ultimately culminated into the shape of the State.
With the great passage of time and centuries together, Codified laws evolved and were introduced in human life. Men came together, they Voluntarily surrendered their individual sovereignty to State sovereignty, and opted to subject themselves to laws of the land, however, they were promised, in return, the Rule of codified laws. The rule of codified laws purported to promise the safety of their life & their property and also sought to guarantee the general dignity inherent in human person alonwith guarantee that he will not be discriminated. This is how the ancient Social contract between Men & State came into being.
Jeremy Bentham (1748-1832) of England, John Austin (1790-1859) again of England, Savigny of Germany, Puchta (1798-1856), Hugo Grotius (1583-1645), Immanuel Kant (1724- 1804), Scabelling (1775-1854), Kohler (1849-1919), Roscoe Pound (1870-1964), Greek philosophers, like the Hiraclitus (530- 470 B.C.), Socrates (470-399 B.C.), Arsitotle (384-322 B.C.), Thomas Acqinas ( 1225-1274), Duguit (1859-1928), Vico of Italy, Montesquiu of France, Hereder of Germany, Edmond Burke (1729-1797) of England, Sir Henry Maine (1822-1888) of England. Auguste Comte (1786-1857); Herbert Spencer (1820-1903); Ehrlich ( 1862-1922); Ihering (1818-1892) significantly contributed to today's modern concept of codification of laws and emergence of State Citizenship relationship.
Main thrust of the legal brains emphasizing on codification of laws, has been firstly, as a means of attainment of human perfection and secondly to secure liberty to individuals in the society. They all considered liberty as the first pre-requisite for the development of human personality. In their view, a State is like a family to which the interests of its members are always dear at heart, like a family which would not be happy if its members are in difficulty, want or trouble, like a family which would not interfere unnecessarily with the free choice of its members.
Among various definitions of State given by Scholars of law and by Philosophers, this appears to be more satisfactory and convincing. It is by professor Goodhart. He defines State in terms of its purpose. He states that the purpose of society which we call a State is to maintain peace and order within a demarcated territory. THE MINIMUM AND ESSENTIAL PURPOSE OF THE STATE IS TO MAKE LIFE POSSIBLE
Hugo Grotius (1583-1645) is regarded as the father of philosophical jurisprudence. He said- it is the first duty of the Sovereign State to safeguard the citizen because State was given power only for that purpose.
And therefore, in the backdrop of ancient social contract, every Society & every Individual Citizen has certain basic assumptions to take it for granted from the State that-
(i) His Life & Property will be protected and his liberty will be secured;
(ii) He can appropriate for his own use what he has created by his own labour and what he has acquired under the existing economic order;
(iii) That others will act with due care and will not cast upon him an unreasonable risk of injury;
(iv) That others will not commit any intentional aggression upon him;
(v) That people with whom he deals will carry out their undertakings and will act in good faith;
(vi) That he will have security as a job holder;
(vii) That State will bear the risk of unforeseen misfortune;
(viii)That State will bear the burden of supporting him when he becomes aged;
There are two system of administering justice to the aggrieved litigant. One is - inquisitorial system, is a legal system where the court or a part of the court is actively involved in determining the facts of the case, second is as an adversarial system where the role of the court is solely that of an impartial referee between parties.
India has adversarial form of Justice System that relies on the contest between each advocate representing his or her party's positions and involves an impartial person or group of people, usually a judge, trying to determine the truth of the case.
When techniques of ascertaining facts and deciding legal issues are discussed, a central feature is seen as a confrontational style: The two sides of litigation prepare and present their cases to the court, and a decision is reached on the basis of the two alternative versions of fact and law.
Whereas Justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one, the greatest moment of crisis occasion when the evil practice of apparently confronting litigants turns out to be collusive collaborators which runs to the effect of suppression of crucial facts before the court of law thereby sufficiently impairing the presiding Judge to adjudicate fairly.
The scheme of administration of Justice begins not with the filing of Complaint but begins with the moment a law or rule is violated.
(a) complaint is filed by an aggrieved person, then follows the reply of opposite party,
(b) the alert and participatory Judge,
(c) fairness of proceedings (natural justice),
(d) the adjournments,
(e) the reasoned Judgment,
(f) the punishment
(g) the appeals,
(h) the compliance of Court orders.
(a) Satisfaction of the Judge is the success of the litigation.
(i) In complaint / Petition, first of all, the presiding Judge must be satisfied that he has Jurisdiction as to subject matter of the case and also he has territorial jurisdiction to hear the presented case for adjudication and he can pass authoritative & binding orders directing Respondent parties to the case.
(ii) Then, the Judge should be satisfied that the presented case is not barred by time limitation.
(iii) Then, the Judge should be stated the position of law for the time being in force as applicable to the case.
(iv) Then, facts should be stated supported by clinching documentary evidences or other evidences.
(v) Then may be stated your views to the presented case.
(vi) Then the Judge may be told to hear the opposite party adequately and decide the case and pass reasoned speaking order, on the basis of facts supported by evidences, in the light of position of law, and of course, taking into account the submissions of the opposite parties.
It deserves mentioning here the observations of Hon’ble Supreme Court in T. Arivandandam v. T. V. Satyapal reported in (1977) 4 SCC 467 : (AIR 1977 SC 2421):
"We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints....... if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11. C. P. C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C. P. C.
An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot clown at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this ease, the learned Judge to his cost realized what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: "It is dangerous to be too good." Similar observation even hold good for frivolous and untenable defense.
However, whereas Justice is effected when the most effective adversary is able to convince the judge that his or her perspective on the case is the correct one, the greatest moment of crisis has arrived when the closed door unrecorded evil practice of apparently confronting LAWYERS turns out to be collusive collaborators which runs to the effect of LAWYERS, with or without consent of their clients, suppress crucial facts before the court of law with the sole intention of sufficiently impairing the presiding Judge to adjudicate fairly.
(b) Whilst Judge’s participation in the proceeding is critical, it deserves mentioning here the observations of Lord Justice Denning In James V National coal board- “The Judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscured , to see that advocates behaves seemly and keep to the rules laid down by the law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that advocates are making and can asses their worth; and at the end to make up his mind where the truth lies…” The Lordship who refuses to move from heavily cushioned Bench and let allow puncture of wheels of Justice are the Hon’ble architects of the palace of falsehood.
(c) Natural justice involves the irritating inconvenience for men in authority of having to hear both sides. This principle is so integral to good governance that the onus is on him who urges exclusion of that other in the adjudication.
(d) Order 17, Rule 1 of CPC 1908 does not allow more than 3 adjournments and is to be read with the proviso to Order 17, Rule 2 where Clause (b) stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party.
That although however, in practice, adjournments are sought and obtained at the mere asking and other delays are being allowed with impunity or at very nominal costs, if any. That this is the situation prevailing in spite of Supreme Court having held in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, that “…grant of any adjournment let alone the first, second or third adjournment is not a right of a party. The grant of adjournment by a court has to be on a party showing special and extraordinary circumstance. It cannot be routine. While considering prayer for adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments.”
(e) Whereas we talk about reasoned orders / judgments, it deserves mentioning here that Reasons alone disclose how the mind is applied to the subject matter for a decision and reveal a rational nexus between the facts considered and conclusions reached. Reasons also aids the Appellate or Revisional Authority to see whether the maker of the order. Judgment, decree has justly meet out justice to the aggrieved person. Reasoned decisions are vital for the purpose of showing that aggrieved is receiving justice. The fate of Justice is tied to the thread of reason.
(f) The business of the legislator is to prevent and reduce crime & mischief in the society. Punishment to delinquency is one of the agency available to him for this purpose.
I begin with the words of Sir Lionel Fox, an acclaimed Penologist of England. He quotes the example of an 18th Century Judge who passed sentence of death saying, “You are to be hanged not because you have stolen a sheep, but in order that others may not steal.” He continued, “Executions are intended to draw spectators, and if they don’t, Executions do not serve their purposes.”
It is said that if by punishing one offender, there is hope of deterring other prospective offenders, then such punishment will certainly help in economize in human misery. Also, the punishment must also bring in some kind of shame to the delinquent so as to make deterrence demonstrative. Offenders are to suffer by punishment not because they were malignant or mischievous, but because others may not behave malignant and mischievous.
The punishment is imposed by authority which the delinquent respect and to which he pays allegiance and therefore regards him as a title of judge. It then becomes the job of the judges to guarantee damage to the delinquent.
However, the deterrence is zero if there is no certainty to the punishment. The gravitation of sin to sorrow should be as certain and analogous as that of earth to the sun.
There seems to be an instinctive feeling in most of men that a person who has done an injury should be punished for it. However, in the light of above settings, the valid reason for punishing delinquency is not to avenge injury caused, but to prevent future injury to someone else. And, therefore, if it is true that, “if one is to be hanged so that others may not steal”, then I go to the Court of law not to get justice for self but for the good of the society.
Punishment is thus a method of forcing good behavior. So evident is the truth of this simple great idea, that if made to realize to presiding judges, will bring good deal of peace in the society.
I will therefore insist that, whoever, when files a petition of complaint or appeal before any judicial or before any quasi judicial forum, alleging delinquency and seeking punishment for the same, then, the above proposition of punishment must be made demonstrative in their so petition or appeal.
(g) Whereas it is settled norm and fashion to go into appeal irrespective of precision order of the lower court, it deserves mentioning here that in Ratanlal Vs Kishorilal( AIR 1993 Cal 144, 160-61), the full bench of Calcutta High Court, referring to 44th Report of Law Commission of India, and referring to number of decisions, Observed, by importing the expression, Substantial question of law, the Law Commission can be said only to have sought to eliminate frivolous, flimsy, and fragile second appeals and exhorted the high Courts to be strictest vigil against entry of appeals on inconsequential but ingenious grounds.
(h) In the backdrop of, Many a times conclusive orders of the court are not complied with; and Time and again even courts have shown their inability to monitor implementation of their Orders, The Hon Court while passing Orders, interim or final may direct –
"Appellant/Respondents Govt/ Public Authority to update their website about Court's directions so given and action taken in pursuant thereof; As long as the Appellant's/ Respondent's website doesn't show up details of action taken, non compliance of Court Orders can and should safely be presumed and be alleged."
The whole scheme of administration of Justice is a quest for truth and Advocates & Counsels though speak on behalf of their Clients, yet (not) in reality, they assist the Court in reaching the truth and administer Justice.
Sandeep Jalan (Advocate)
Janhit Manch, Kuber Bhuvan, Bajaj Road, Vile Parle West, Mumbai- 400056.