Law & Justice - Nuances

Introduction of law is a basic incident of a democracy. The system of Laws came so that the stronger might not have their way at their choices, but according to law. 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.

Section 3(29) of General Clauses Act, 1897 defines Law as any Act, ordinance, regulation, rule, order, bye-law or other instrument which has the force of law. The first attribute of Law is “Rule of law”, which means “Ruled by Law” and not by individual whims and fancies. This is also in fact and precisely one of the mandates of Article 14 of our Constitution, which among other things, guarantees equal protection of laws to all persons.

The attributes of law: A law or rule is a common sense which is binding on you to obey. A law is a social necessity prevailing over your own interest. Every law, as far as possible, must have a certain degree to its application, and must provoke intelligent proposition in the minds of the reader. A law is something which must have a moral basis, so that there is a inner compelling force for every citizen to obey. The law is to play its allotted role of serving the needs of the Society. It must reflect ideas and ideologies of that society. It must keep pace with the heartbeats of the society, and the needs and aspirations of the people. Laws are to be enforced simply because they are made; but unnecessary laws are traps for extorting money, and suppress speech and expression.

Scheme of Justice: The accountability of a person towards the Society or towards another individual has a close relation with the concept of justice. The justice, in the ordinary sense, is a process whereby a person is held accountable for his actions and inactions.

And if we say that there is no justice in our country, it follows that persons are not held accountable for their wrongful, unauthorized and illegal actions, implying governance by whims and fancies of powerful individuals, be in politics or otherwise. The scheme of Justice also implies the giving of every man his due.

The exercise of adjudicating and declaring rights and legal obligation of parties, by employing laws of the land and the principle of equity, by a competent court of jurisdiction, may be called as the exercise of administering justice.

There are two essential and indispensible feature of any justice dispensation framework. First, the Court / Tribunal must secure that all parties before it must be given proper opportunity to present their case; and second, the presiding judicial officer should not have any personal interest in the subject matter presented before it for adjudication.

The birth of a Litigation: The accrual of cause of action gives birth to a litigation and the absence of it results in ceasing of the litigation. Accrual of cause of action implies and presupposes infringement of litigant’s some statutory right / fundamental right / equitable right / contractual right / or any other right recognized under the statutes or customs. For the locus to move the court of law, the right sought to be enforced, should have already come into existence, and there should be an infringement of it, or at least a serious and imminent threat exist of its infringement.

Nature of Reliefs claimed, lies at the heart of any litigation. These “Reliefs claimed” also decides the jurisdiction of the Court, as whether it is competent for that Court to grant such Reliefs. Further, every Relief which is being claimed presupposes the existence of certain facts, which are required to be pleaded and proved. These may be called material facts of the case. The legal process in the Court of law is initiated by the presentation / institution of a Case, whether in the form of a Suit, Petition, Application etc, in the competent court of jurisdiction.

The act of causing harm to another may gives rise to two different kinds of liabilities – Civil and Criminal, and both Civil and Criminal actions may be adopted for the same grievance. Also, any legal action must be commenced within a particular time frame depending on the nature of the dispute.

Decision making process: Broadly, the decision making process is – the Claimant comes before the Court of law claiming certain Reliefs; pleads material facts of the case; the Court calls upon the adversary to file his reply to the allegations made (not in criminal trials); litigating parties lead evidence in support of the facts asserted; the court examine the relevancy, truthfulness and credibility of such evidences, apply the applicable laws in the appreciation of evidences and materials which are before it; and would record the findings on each of the material fact, and pass Order.

I am receiving justice even if all the Reliefs asked for, are being turned down by the Court: I am talking about, among other important things, reasoned decisions of the Courts and Tribunals, including decisions of Administrative Authorities. Reasoned decisions are inescapable in the entire scheme of administration of Justice. Reasons disclose how the mind is applied to the subject matter and reveal a rational nexus between the facts considered and conclusions reached. The reasons employed not only be intelligible but which will also deal with the substantial points which have been raised.  An unreasoned Order presupposes the non consideration of submissions on record made by the Party therein and in the absence of reasons, the opportunity of hearing would be rendered meaningless and empty formality, and thus in essence occasions the breach of principles of natural justice. The very search for reasons will put the judge on alert and minimize the chances of unconscious infiltration of personal bias or unfairness in the conclusion. Please refer decision of the Apex Court – Kranti Associates [AIR 2010 SCW 5715]

Truth is the foundation of justice: Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. Lord Denning (Judge of the England) observed in a case before it, “It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth..." [AIR 2012 SC 1727].

There cannot be blind adherence to the letter of the law: In Raghubir Saran versus State of Bihar– “The Courts exist not only for securing obedience to law of the land but also for securing ends of justice in its widest sense. All Courts, including the HC can exercise such powers as the law of the land confers upon them as well as such inherent powers to do justice as are preserved expressly or are not taken away by a Statute. It is necessary to remember that courts are established to do justice. [AIR 1964 SC 1]

The notions of justice are not litigant centric: In every case before the Court of law, the rule of law is at stake. I will 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.” The business of Justice is to reduce crime & prevent mischief in the society. So evident is the truth of this simple great idea, if realized by presiding judges, will bring good deal of respect for law in the society.

Adjudication of dispute in a reasonable time: Speedy disposal of court cases is the basic necessity of life in a democracy and it is the Courts who gives life to laws and rules otherwise they are a show piece in books of law. Abstract declaration of rights without definite means and machinery to enforce rights is deception played by Govts. The absence of adjudication of cases in a time bound manner brings prosperity to corrupt and law breakers; and spell misery, annoyance and frustration for the innocent and for law abiders; and Courts and the Govts. support corrupt and law breakers and spell misery, annoyance and frustration to the innocent and law abiders, when they ignore securing adjudication of cases in a time bound manner.

Governance is based on perceptions: A man act as what he believes, i.e. all his actions are founded on his perception / belief of certain things. A man whilst breaking law, thinks of the prevailing justice system, and then proceeds to break the law. For example: An offender of law normally believes that no law works, hence his behaviour is towards disregard of laws. At the same time, many a times the victim also believes that no law works, and he accept the injustice. And this is how the society progress... to lawlessness.

Nearly two centuries ago, Justice John Marshall, the Chief Justice of American Supreme Court warned that the power of Judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man [AIR 2007 SC 2725].

A Constitution, no matter how well conceived, can only create institution on papers. Breathing life into them is up to the succeeding generations. The concentrated view which emerges runs to the effect that the greatest guarantee of Justice is not the law but the personality of the Judge and the way he discharges his duties. Amidst great challenges and shortcomings, the greatest thing about our democracy and (In)justice system is that – both can be “Restored” to function.

Sandeep Jalan
Advocate

Legal issues !!

If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.

or

If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.

https://www.litigationplatform.com/

Thank you.