Judiciary and the Chaos
Summary: Judiciary is the custodian of law, system and justice in any society.
Effective resolution of conflicts is essential in a healthy society. Failure of judiciary
to meet its obligations in any society is bound to lead to chaos. Judiciary should
devise ways and means to achieve its ends effectively and efficiently.
Instances of judicial misconduct are reported by media off and on but they are
very mild in character and do not qualify even as tip of the iceberg. Media can
afford to be harsh on all other professions but certainly not on judiciary. It is
difficult to say, whether it is out of respect or fear of judiciary. So, in any society,
judiciary rules unopposed and unchallenged. Only higher judiciary is empowered
to question authority and wisdom of a judge lower down in hierarchy. That too,
only when the subject matter is placed before a higher judicial forum. But this
may often be beyond the means of the learned and the most informed of the
litigants. No doubt that this is a systemic constraint but it means that if a judge
does not actively and aggressively delivers justice; he is likely to end up as R.
Goldschmidt’s hopeful monster acting autonomously according to his own whims
and fancies. He can easily override all criterion of reasonableness applicable to
him. He can easily defeat all the safety mechanisms built into legal procedure as
well as law, facts and legal procedure.
A chaos is a state of lawlessness and is inevitable in any society if its members
loose respect and fear of law. Every individual is then at liberty to behave
autonomously in the name of individual freedom/independence/self-interest.
If a system of governance is considered to be a stream, than Legislature and
Judiciary constitute two banks of the stream, so that contained between its banks
stream flows smoothly.
Between the two banks lie people and executives. In any society, politicians are
primarily important not so much for their legislative function, as for their
executive function. Legislature can be held responsible for laying down
questionable laws. But to guard sanctity of established laws and to secure their
implementation is solely the function of judiciary. Since in any conflict of interest
judiciary is the final arbiter and therefore character of judiciary shall determine
character of people in towns and villages. Hence in the event of general
lawlessness or chaos in a society, it is essentially judiciary’s failure to discharge its
function for whatever reasons.
It is only when judiciary fails to discharge its function and uphold sanctity of law
that people and executive get an inspiration and opportunity to act arbitrarily.
People’s experience with judiciary in the course of litigation often acts as
determinant of their character. Failure to uphold sanctity of law means failure of
system of governance and failure of justice which would mean truncated
evolution of the society as a whole. Jungle Raj or Rule of the forest is inevitable
under such circumstances. In a society with failed judiciary the only law that
prevails over every other law is “Might is the right”. In a chaos, existence is a
matter of perpetual struggle.
Judiciary perpetuates chaos actively as well as passively. Some of its ways and
means are as under:-
1. Judiciary stubbornly refuses to evolve to discharge timely and affordable
justice in a people friendly manner. Judges listen to litigants only when it is
unavoidable and apply their mind only when unavoidable and that is
generally at the time of final order. This means that even for the simplest of
matters, one has to face a protracted trial lasting several years even when
the dispute may be resolvable at the stage of framing of charges or issues,
on the basis of material on record and may be a little persuasion of
litigants. The only excuse given is that this is a court.
2. Judges generally do not critically examine their judgments on the
touchstone of reasonableness and comprehensiveness. Therefore, either
the personal opinion of the judge succeeds or the better advocate
succeeds. This is more likely to happen when a judge is empowered to
exercise his discretion under the law or arguments advanced from both
sides are incapable of being literally and mathematically-logically precise
with reference to established law and established facts. Such a situation
may also be the result of ignorance. Under these circumstances, Judges
instead of applying the test that for a judgment to be correct, it has to be
correct from every possible point of view prefer to be guided by their
personal point of view under the color of their authority even if it is
unverified and basically absurd. Moreover it is a misconception that a
neutral mind shall deliver the right judgment. There is no entity such as a
neutral mind. What is really needed is an informed and enlightened mind.
3. Judiciary routinely fails to discharge its supervisory role in administration of
criminal law machinery under the pretext of not interfering with
investigations, effectively giving rise to rule of police instead of rule of law.
Once an accused, all the human rights of the accused are in a state of
suspended animation until proven innocent after a protracted trial. All the
deficiencies in police investigation are just ignored.
4. In the name of reducing litigation, judiciary routinely promotes
compromises contrary to law. Law requires that compromises must be legal
and valid. This gives the strong every opportunity to prevail over the will of
the weak and the sufferer.
5. Selective enforcement of law on one or the other pretext.
6. Judges often assume robes of an advocate in defending their judgments
presumably delivered as speaking orders.
7. Justice can’t be expected to be awarded, it has to be extracted. It requires
an advocate of skill and standing to secure justice for oneself. A litigant,
howsoever well informed about facts and law of his case is miserably
dependent on his advocate, for advocate is the only one who knows how to
extract justice for his clients.
8. Judicial orders during trial are often passed as a matter of routine rather
than after due consideration of merits of the case and the applicable law.
At times even objectivity and rationality is not kept and subjective
justifications are advanced in lieu of speaking orders.
9. Illegal and contradictory orders are passed in breach of merits of the case
and law, advancing such interpretation of law and justification to which no
sane person in the street would agree.
10.Quite often judges have a propensity to decide those issues which they are
otherwise incompetent to decide such as a judge in USA decided about
merits of Darwin’s Theory of Evolution which 150 years of scientific debate
have not been able to decide.
11.Often imaginary considerations and unfounded apprehensions guide their
judgment. In one case before the apex court I was verbally asked to forget
about the law and previous judgments of the apex court.
In any society, judiciary is the ultimate authority in conflict resolution in
accordance with law and in this capacity judiciary is the custodian of law,
system and justice. In the event of its failure in discharging its designated
function, chaos is inevitable.
To do justice to its designated function, judiciary should aim at conflict
resolution in accordance with law in a timely and affordable manner. Judiciary
should not refrain from listening to common man and should attempt to
deliver effective justice at the earliest in accordance with law. An
understanding of law should expedite and not delay decision making.
Author: Dr Mahesh C. Jain is a practicing medical doctor has written the book
“Encounter of Science with Philosophy – A synthetic view”. The book begins with
first chapter devoted to scientifically valid concept of God and then explains
cosmic phenomena right from origin of nature and universe up to origin of life
and evolution of man. The book includes several chapters devoted to auxiliary
concepts and social sciences as corollaries to the concept of God. This is the only
book which deals with origin of nature and universe from null or Zero or nothing.
The book contains two chapters devoted to law and justice respectively.