ACCESS TO JUSTICE

We believe that the rule of law is, in effect, when there are meaningful and enforceable laws, enforceable contracts and finally when there is access to justice – Justice B. K. Sharma

Law, and for that matter the judiciary, is the most vital  tool for bringing about so-cial and economic changes. Wisely used and effectively employed, it can provide the most peaceful and smooth means of change. The question is sometimes raised as to how far we can harmonise the urge for change with the rule of law. Although it is essential that some of the iniquities and drawbacks which have manifested themselves in our social system should be weeded out or rectified, we must also bear in mind that every change is not always and necessarily for the better or symbolic of progress. History records about as many social changes for the worse as for the better. It is, however, the law of nature that human society keeps changing.

There has, of late, been an enormous increase in the sweep of law. It has permeated into all spheres of life and every field of administration, touches us at every point and affects us in all activities. Time was when nations could do with a few statutes of a general nature, and many fields were left uncovered by law. It was left to the individual judges to decide matters falling in those fields according to their sense of fairness and justice, and this led to the evolution of judge-made law.

The core mission of the judiciary is to administer justice. Judges do this, primarily, by adjudicating cases and doing so in a way that is fair, impartial, transparent, prompt, and respectful to the participants. But their role is not confined to deciding cases. Over the years, judges have been given additional duties as well. They now play a role in addressing the problems that underlie those disputes and in helping to alleviate their human impact. So whether it’s supervising defendants on probation so that they stay off drugs, or providing support to children whose parents are going through a divorce, or giving litigants the opportunity to resolve their disputes through alternative dispute resolution, the judiciary is asked to do much beyond simply deciding cases.

As Baruch Spinoza, one of the greatest philosophers, wrote, “Peace is not the absence of war, but the presence of justice.” In the 21st century we still see justice tied to peace – perhaps more than ever – but increasingly we see justice tied to matters of economic and social development too. The broadening reach of justice reflects the dynamic advancements in the world today, including technology and communication. We are less compartmentalised, less segmented, and more interdependent than ever before.

Reform is not merely about cases and the speed with which they are decided. The judiciary of the 21st century needs to set up an example in exemplary self-discipline: discipline in its approach to legal and, more often, political-cum-legal problems that fall in its lap. The mystique of the judiciary – the “Awesome Majesty of the Law”, as it used to be called – is no longer a sufficient protection. Judges are seen less as the impersonal agents of a system and regarded more as human beings responsible for the failure of the losing party; the attacks have shifted from the ball to the player! Hence the need for ethics and some guidelines from the top, which “the top” too must scrupulously observe!

The judiciary is the last resort of the common people. It is one of the key means of protecting and enforcing the rights of the individual, and no other institution is bestowed with such a task. Most of the monumental achievements of the human rights community the world over have been through the courts. If people lose faith in the justice imparted by a court of law, the entire democratic setupwould crumble down. As observed by Lord Denning, M.R., in Metropolitan Properties Ltd. V. Lannon, reported in (1969) QB 577. “Justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking, ‘The judge was biased.’”

The majesty of law continues to hold its head high notwithstanding scurrilous attacks made by persons who feel that the law courts will absorb anything and everything, including attacks on their honesty, integrity and impartiality. Judges do not have an easy job. They repeatedly do what the rest of the people seek to avoid: make decisions. Said David Pannick in his book “Judges”. Judges are mere mortals, but they are asked to perform a function which is truly divine.

The Indian judiciary is often criticized for the slow pace of justice delivery. While some accuse it of indulging in judicial activism, others allege it is intolerant of even objective criticism. However, as an institution, the judiciary remains tall and proud, in stature and reputation, independent and majestic, possessing impeccable integrity and continuing to sustain the faith and confidence of the people of this country. It is in this context and the rising community expectations that the judiciary will have to face the new challenges in the administration of justice.

It is not the function of the judiciary to meddle in matters which are primarily within the domain of the executive and the legislature. But the judiciary has a vital constitutional role to ensure that the executive and the legislature act within the constitution and the law, that there is no abuse of power and that the fundamental rights and freedoms of citizens are safeguarded. This constitutional role of the courts will continue to grow in importance. Turning to its adjudicative role, the challenge for the judiciary will be to maintain and improve the court system so that it meets the rising expectations of society. This means a fair and efficient system for the resolution of disputes.

The judiciary faces exciting challenges in the administration of justice. The judiciary is an institution that belongs to and serves the community, and all societies would have rising and greater expectations of their judiciary. To enable the rule of law to continue to thrive, we must rise to the challenges and meet those expectations.

In the 21st century, economic and social development is not just about the balance of payments or building a road or increasing tax collection. More and more it is about the rule of law. We believe that the rule of law is, in effect, when there are meaningful and enforceable laws, enforceable contracts and finally access to justice. The judiciary has a critical role to play in development generally. But “Like old clocks, our judicial institutions need to be oiled, wound up and set to true time,” as said by Lord Woolf, Chief Justice of England.

(The author is a former judge, Gauhati High Court. He can be reached at biplabsharmaj@gmail.com)