Prefix judges, judiciary, JUSTICE, Justice Bhagwati, law, law and justice research foundation, legitimate expectation of people, Rights of common man and the role of Judges
This article is written by Adv. LESLY PANAVILA, a first year student of LL.M at Government Law College, Thiruvananthapuram. The author is also a member at Law and Justice Research Foundation (LJRF), Kollam Chapter and Convenor at LJRF Center for Legal Education Reforms. This article is about the ‘Expectations of the common man and the Role of judges’ and it includes an analysis on how far the judges of the Indian Judicial System meet the expectations of the common man.
INTRODUCTION
“Whoever hath an absolute authority to interpret
any written or spoken laws,
It is he who is truly the Law-giver
To all intents and purposes, and not the person
Who first wrote or spoke them.“
-Bishop Benjamin Hoadly, 1259
The art of judicial decision making is perceived differently under different theories. Some believe that the personality of the judge plays a crucial role in reaching the decisions, others are of the view that in no way, the judges could avoid precedents that stand in their way and prefer their philosophy over it. A leading realist scholar, Jerome Frank maintains that the opinions written by the judiciary are an inaccurate depiction of actual thought processes which occur in a judge’s mind. Frank claims that judge’s decisions aren’t based on a systematic analysis of fact and law, but rather on a perspicacious flash termed the “Judicial hunch”1. The majority of Realists recognize the central role of the judicial hunch in decision making, but differ as to elements that establish the hunch2.
From an academic view point, different theories have evolved on how judges decide. But, the significant point to be discussed here is that in whatever way, a judge decides— how could he conform to the expectations of a common man? What social philosophy should govern a judge when he could meet up the expectations of a layman? Meeting these expectations should definitely ask a judge to put aside his gowns and require him to stand before a mirror as a common man of any country, then only he could decide the case before him in a way to conform to such expectations. This article analyzes the notion of justice from the viewpoint of the common man of this country.
Lay Expectations from the Justice System of a Country and the Role of Judge
The Common Man:
According to Merriam Webster dictionary, common man means the one who is an undistinguished commoner lacking class or rank distinction or special attributes. The abstract terminology to be defined here is “Common Man”. A common man is what you see in the mirror, it is any individual living in the society coming from diverse economic background, race, ethnicity, religion or even region. This individual is provided with certain rights, which may be legal, social or even political, his only duty is respecting rights provided to others, his only insecurity is protecting his own rights. But, at times, the simple duty insecurity can result in a lifetime of fight. The same innocent soul who abides by the law to protect himself and his loved ones can turn vulnerable when wronged or cheated. However it must be remembered that the law never cheats, it is the lawmaker who at times bends, beats and worse breaks the rules to suit his/her own selfish needs. Therefore the same common man, who is the law-maker, is also the law abider and at times the law breaker. Thus the true vitality of law and justice should always be evaluated in the context of their effectiveness in a common man’s world, hence quoting Giorgio Del Vecchio “Without Justice, life would not be possible and even if it were it would not be worth living…..”
In every country the Rule of Law extends itself in the form of a written or unwritten constitution and India is no different. The Constitution of India has sought to put an end to the authoritarian form of Government and through tools of Democracy has established a form of egalitarian government….. Though integrity and fairness has inculcated its deep roots within the society yet its essence has lost ways in political instability, cultural anarchy, economic disorder, religious and racial conflicts to name a few4.
Some questions to be posed,
1. Whether a judge should be a mere spectator to public events? Or, should he intervene in only the matters placed before it?
2. Can a common man have some expectations from a judge? If so, what can be the limit of expectations?
3. Are judges bound to meet the expectations of the common man?
4. Which philosophy can rightly guide a judge, if he should meet the expectations of a common man?
Back 2015, while in a function held to give a momento to a Chief Judge of Chief Metropolitan Magistrate Court, Acting Chief Justice of the Hyderabad Court, Justice Dilip Babasaheb Bhosale reminded the court state that “it is imperative to meet the expectations of litigants” The day you lose that faith will be the beginning of anarchy, he warned. He further regretted that there were instances when it took weeks for litigants to get certified copy of judgments.
An Analysis on how far the judges of the Indian Judicial system meet the expectations of common man.
a) Expectation to be Unbiased:
Unbiased means free from bias especially, free from all prejudice and favoritism or eminently fair unbiased opinion. Accordingly, legal decision-makers, whether jurors or judges, are expected to evaluate cases on their merits, without prejudice or preconception. Irrespective of the person involved in the case, judges should follow up the letter and spirit of law. It extends to giving a dignified treatment.
b) Need for right interventions:
Judicial Activism and PIL The judiciary has had an exceptional role in shaping the course of policies and politics in India. Justice V.R. Krishna Iyer, is an exemplar of this fact. Krishna Iyer, along with Justice P.N. Bhagwati, had thrown open the doors of Indian courts to public interest litigations (PILs) and was instrumental in reinventing the Supreme Court as an activist institution in the post Emergency era5.
Judicial activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and the promotion of justice in the society. It’s also known as “judicial dynamism”. In India, the PIL is the product of the judicial activism role of the Supreme Court. The introduction of PIL in India was felicitated by the relaxation of the traditional rule of ‘locus standi’. PIL was initiated in Akhil Bhartiya Shoshit Karmachari Sangh (Railway) v. Union of India, 19816 case, wherein an unregistered association of workers was permitted to institute writ petition under Art 32 of the constitution for redressal of common grievances. Justice Bhagwati, in S.P. Gupta vs Union of India7 case firmly established the validity of the Public Interest Litigation. In 1982, Justice P.N. Bhagwati, stated that “PIL is a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, a totally different kind of litigation from the ordinary traditional litigation.”
The past two decades have witnessed a range of PIL cases on diverse issues – human rights, environment, public accountability, judicial accountability, education, to name but a few. In the earliest of the PIL cases, Hussainara Khatoon v. State of Bihar8 the Supreme Court recommended release of the indigent prisoner on personal recognizance bonds, rather than on unaffordable monetary bail bonds. Another instance of creative judicial activism was in moulding reliefs for rickshaw pullers from Punjab facing problems obtaining finances to purchase rickshaws9.
c) Tolerance:
Tolerance is a basic quality that should be inherently possessed by every judge. He should listen to, with all tolerance, counsels for parties, parties, witnesses in the witness box etc. He shouldn’t be a mere listener but a sensitive listener. Then only he could extend a dignified treatment to all those who are seekers of justice. It also involves being approachable and accessible to laymen as the doors of justice should remain open for any time.
d) Speedy Justice:
This is the basic expectation of any man who goes to court. It is a fundamental right of every citizen to get speedy Justice, which also is the basic requisite of good judicial administration. Right to speedy justice is extended under the right to life guaranteed by the Constitution of India.” Ensuring equal access to justice is a constitutional mandate not just in terms of a fundamental right under Part III, but also a good governance directive under Part IV of the Constitution. Access to speedy justice and trial is a part of the right to life and personal liberty…. Delay in justice denotes the time consumed in the disposal of a case that is in excess of the time within which it can reasonably be expected to be decided by the court. Factual data shows that despite consistent efforts, the gap between the expected and actual life span of cases is widening. The chief reason for delays is that the judge-population ratio is low in India. Other reasons include case adjournments granted by courts on flimsy grounds. Alternative options for settlement of disputes, like mediation, conciliation and settlement through Lok Adalats, which help in speedy disposal of cases, should be made effective. The right to speedy trial is not fact or fiction but a “constitutional reality” and it has to be given its due respect10.
e) Doctrine of Legitimate Expectations:
The Doctrine of Legitimate Expectations is a judicial innovation that provides locus standi to a person who though does not have a legal right, does have an expectation of the concerned authority behaving in a certain way. This doctrine first found its mention in the case of State of Kerala vs. Madhavan Pillai.11 In this case the government had issued a sanction to the respondents to open a new aided school and to upgrade the existing ones. However, after 15 days, a direction was issued to keep the sanction in abeyance. This action was challenged on the ground that the same violated the principles of natural justice. The Hon’ble Supreme Court held that the sanction order created legitimate expectations in the respondents which was violated by the second order as the same was without following the principles of natural justice which is sufficient to vitiate the administrative order12.
f) Doctrine of Manifest Arbitrariness:
Any act founded on prejudice or preference, rather than on reasons or facts, is arbitrary. As things stand post the judgement in Saira Bano case, “manifest arbitrariness” would essentially be something done by the legislature “capriciously, irrationally and/or without adequate determining principles…” In order to be described as arbitrary, it must be shown that the law was “not reasonable and manifestly arbitrary”, the court had said. The court used the doctrine in cases to decriminalize homosexuality (Navtej Singh Johar v. Union of India13) and adultery (Joseph Shine v. Union of India14)15.
g) Through SUO MOTU CASES:
Since January 2020, the Court has taken up 13 cases ‘suo motu’. This means they take up cases by their own notice, without any petition being filed, or interest being brought before them. These cases have included some of the most important ones during the pandemic, dealing with prisoners, migrant workers, vulnerable children and vaccine policy16.
A bench comprising Justices D Y Chandrachud, L Nageswara Rao and S Ravindra Bhat was considering the suo moto case In Re Distribution of Essential Supplies and Services during COVID. The bench has called for a report from the Central Government on issues related to supply of oxygen, essential drugs, vaccine pricing. “During a national crisis, the Supreme Court cannot be a mute spectator. The role of the Supreme Court is complimentary in nature. The issues which travel state boundaries is what this court will look into and thus Article 32 jurisdiction has been assumed”, said the Court17.
Recently, The Supreme Court took suo motu cognisance of the Lakhimpur Kheri violence in Uttar Pradesh in which eight persons, including four farmers, were killed and many others were injured. The suo motu case – ‘IN RE- VIOLENCE IN LAKHIMPUR KHERI (UP) LEADING TO LOSS OF LIFE’—is listed before a three-judge Bench led by Chief Justice of India NV Ramana. This shows the proactive role of the Supreme Court in matters where the common man is involved.
h) Certain specific rights of common man and role of judge
➢ Right to Work and Right to Health
The most rousing and moving case was the Olga Tellis vs. Bombay Municipal Corporation18, wherein the five-judge bench of the Supreme Court interpreted that the word ‘life’ in ‘right to life’ also incorporated the ‘right to livelihood’. The next case of Bandhua Mukti Morcha vs. Union of India19 introduced the court with the inhumane conditions of the workers and the treatment they suffered in the workplace. The court, in its verdict, laid down the measures to build a rejuvenated and complementary environment at workplaces to support the mental and physical health of the workers. It also reminded the State about its constitutional obligation to look out for individuals with poor backgrounds and help them build a decent standard of living. Vishaka vs. State of Rajasthan20 brought under its cover the condition of a workplace which should ideally persist. The court in its judgement gave guidelines, famously known as the Vishaka guidelines, for the employees to follow to maintain a peaceful and supportive environment for the women workforce. After this case, the court also introduced clarity in the term ‘sexual harassment’ and mentioned all types in which it can be conducted, with punishment for all of them21.
➢ RIGHT TO EDUCATION
The insertion of article 21-A in Part III of the Indian Constitution in the year 2002103, which provided for the fundamental right of education to all children between the ages of 6 and 14, occurred at the end of a process that was triggered of by the judgement of the Supreme Court of India in Unnikrishnan J. P. v. State of Andhra Pradesh22. The significance of Unnikrishnan has been the identification of primary education as a minimum core of the right to education, and this was implicit in the wording of article 45 which set an outer time limit for the ‘progressive realization’ of the right. Secondly, it prompted a constitutional amendment that formally acknowledged the transformation of this right from a DPSP to an enforceable fundamental right. The importance of the case also lies in its impact on judicial decision making where creativity and innovation are key determinants to effective intervention23.
➢ RIGHT TO FOOD
In April 2001, the People’s Union for Civil Liberties approached the Court for relief after several states in the country faced their second or third successive year of drought and, despite having 50 million tons of food stocks, failed to make available the minimum food requirements to the vast drought-stricken population. The Court ordered governments ‘to see that food is provided to the aged, inform, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their family do not have sufficient funds to provide food for them’. The states were directed to ensure that all the Public Distribution System (PDS) shops were reopened and made functional24.
CRITICAL ANALYSIS:
However, Judiciary has not always been a protector of the rights of common man by the advent of liberalization, privatization and globalization. Shri. Manoj Mehta, Associate Professor of Law, Whittier Law College, in his article titled ” Globalization, Rights and Judicial Review in the Supreme Court of India”, argues that the Court’s particular approach to rights-based judicial review has resulted in the creation of “asymmetrical rights terrains” that privilege the rights and interests of private commercial and industrial stakeholders and government officials and agencies, above the rights and interests of labor, villagers, farmers, and tribes. This is evident from Balco Employees v. Union of India (2001)25, as the Court held that the employees of the BALCO union didn’t have a right to a hearing prior to disinvestment of government owned enterprises under Article 14 and 16 of the Constitution. Similarly, in Rangarajan v. Government of Tamil Nadu (2003)26, in which the Court drew on a series of earlier precedents and held that employees did not have a constitutional or statutory right to strike under Articles 19 (1) and Article 21. Likewise, in Narmada and Tehri Dam cases, the court upheld the project as it observed that ‘the right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of people’s wellbeing and realization of their full potential… of course, construction of a dam or mega project is definitely an attempt to achieve the goal of wholesome development’.
A Tribute to Justice Bhagwati
Prafullachandra Natwarlal Bhagwati, who was born on 21 December 1921, was a restless legal crusader, who turned his tenure as a judge of the Supreme Court into a unique opportunity to give effect to some of the embedded aspirations of the founding fathers of the Indian Constitution. Bhagwati’s real self-came to the fore in his deep empathy for the poor and the Underprivileged. It came to be reflected in the tools and techniques of justice delivery such as providing legal aid to under trial prisoners. In fact he was clear in his mind that a judge needs to be guided by his own social philosophy. The sheer audacity of Bhagwati’s vision, philosophical rationale and futuristic imprint of judicial activism appear to be unparalleled. It provides a beacon of hope to us that much desired changes in the Indian legal system are possible if conscientious judges with wider horizons can marshal ideas that are duly guided by taking the Constitution as an organic beacon of hope for betterment of the society at large27.
CONCLUSION
The words of Roosevelt in his message of December 8, 1908, to the Congress of the United States “The chief lawmakers of our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making. The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy, which was itself the product of primitive economic conditions…” The business of the judge, was to discover objective truth. His own little individuality, his tiny stock of scattered and uncoordinated philosophies, these, with all his weaknesses and unconscious prejudices, were to be laid aside and forgotten… My duty as Judge may be to objectify in law, not my own aspirations and convictions and philosophies, but the aspirations and convictions and philosophies of the men and women of my time. Hardly shall I do this well if my own sympathies and beliefs and passionate devotions are with a time that is past28.
I’m of the opinion that the integration of empathy into the notion of justice is the need of the 21st century. For this, the judges must possess practical wisdom like The King Solomon was believed to have shown that the sense of justice and wisdom which informs empathy, understanding and fraternity. Whatever philosophy a judge holds while making decisions, it is, indeed, that for the light of a nation to burn bright, the expectations of common man is to be met with all sensitivity and empathy.
Endnotes
1 Jerome Frank, ‘The Law and the Modern Mind, George C. Christie & Patrick H. Martin, Jurisprudence’: TEXT AND READING ON THE PHILOSOPHY OF LAW 844, 845 (West Publishing Co. 1995).
2 Capurso, Timothy J. (1998) “How Judges Judge: Theories on Judicial Decision Making, “University of Baltimore Law Form: Vol. 29: No.1, Article 2, accessed from http://scholarworks.law.ubalt.edu/if/vol29/iss1/2 on 05/10/2021 at 202.25 pm.
3 Krishna. Pal, ‘Law and Justice and Common Man’, accessed from https://www.legalserviceindia.com/article/600/Law-Justice_and common man on 29/09/2021 at 5.00
4 Ibid.
5https://www.livemint.com/Opinion/3C8wRD7rwYrZ3bGzrCDkLM/The-limits-of-judicial- intervention.html.
6 1981 AIR 298, 1981 SCR (2) 185.
7 AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365.
8 1979 AIR 1369, 1979 SCR (3) 532.
9 Justice Muralidhar S. “The Expectations and Challenges of Judicial Enforcement of Social Rights”, accessed from https://delhidistrictcourts.nic.in/ejournals/Social_Rights_Jurisprudence.pdf on 30/09/2021 at 09.00 am.
10 India Legal, “Speedy Justice: A Right to be Respected “, accessed from https://www.indialegalalive.com/viewpoint/speedy-justice-a -right-to-be-respected/ on 06/10/2021 at 3.00 pm.
11 1989 AIR 49, 1988 SCR Supl. (3) 94.
12 Nikita Batra, “India: Doctrine of Legitimate Expectations”, accessed from https://www.mondaq.com/india/constitutional-administrative-law/881956/doctrine-of-legitimate-expectation on 30/09/2021 at 10.00 am.
13 AIR 2018 SC 4321; W.P. (Crl.).No. 76 of 2016.
14 (2019) 3 SCC 39, AIR 2018 SC 4898.
15 Eklavya dwivedi, ‘The Doctrine of “Manifest Arbitrariness”-A Critique’, accessed from https://www.indialawjournal.org/the-doctrine-of-manifest-arbitrariness.php on 31/09/2021 at 11.00 am.
16 Mihir. R, ” Suo MOTU power in Writ jurisdiction: A South Asian Innovation”, accessed from https://www.scobserver.in/beyond-the-court/suo-moto-powers-in-writ-jurisdictions-a-south-asian-innovation on 01/10/2021 at 9.00 am.
17 Srishti Ojha, “COVID 19 SUO MOTU CASE”, accessed from https://www.livelaw.in/top-stories/supreme-courtsuo-moto-case-covid19-high-courts-national-crisis-173192 on 01/10/2021 at 4.00 pm.
18 1986 AIR 180, 1985 SCR Supl. (2) 51.
19 1984 AIR 802, 1984 SCR (2) 67.
20 AIR 1997 SC 3011.
21 Kiriti Sharma. ‘Right to work in India’ accessed from https://lexlife.in/2020/05/08/right-to-work-in india/ on 08/10/2021 at 10.00 pm.
22 1993 AIR 2178, 1993 SCR (1) 594.
23 Justice Muralidhar S. “The Expectations and Challenges of Judicial Enforcement of Social Rights” Accessed from https://delhidistrictcourts.nic.in/ejournals/Social_Rights_Jurisprudence.pdf on 30/09/2021 at 10.00 am
24 Justice Muralidhar S. “The Expectations and Challenges of Judicial Enforcement of Social Rights” Accessed from https://delhidistrictcourts.nic.in/ejournals/Social_Rights_Jurisprudence.pdf on 30/09/2021 at 11.00 am
25 (2002) 2 SCC 333
26 2003 (6) SLR; AIR 2003 SC 3032
27 Bharat Desai, “A judge as a philosopher”, accessed from https; // www.epw.in /commentary on 02/10/2021 at 12.00 am.
28 Cardozo Benjamin. N, ‘The Nature of Judicial Process, Universal law Publishing co.pvt.ltd, Fifth Indian Reprint(2004) on 29/09/2021 at 4.30 pm.
