Since, ancient times scholars have attempted to define justice. As a concept it has been subject to philosophical, legal, and theological reflection and debate throughout history.
In our Shastras, justice has always been equated with the Dharma and Courts of Justice have been described as Dharmadhikaran. It has been stated in our shastras that Dharma is the basis of the entire universe. It is the fundamental law of our life. Whenever there is deviation from this law, there is likelihood of crisis.
Even, Manu, the great Hindu philosopher observes that Lord Justice is truly the bull (vrsa) and a man who impeded (alam) him the gods call him a low born (vrsa-la) Therefore, one should never trample Justice. He further adds that when justice pierced by injustice (adharma) comes to the court for the redress and court officials do not pluck out that dart from him, then they are themselves pierced by it.
For Plato justice exists in both the individual and the society. Individually "justice is a 'human virtue' that makes a man self consistent and good: Socially, justice is a social consciousness that makes a society internally harmonious and good."
The significance attached to the concept of justice by our founding fathers is well illustrated in the Preamble to the Indian Constitution. The Preamble seeks to achieve social, economic and political justice for the citizens of India.
Thus, we observe that the concept of justice has meant different things to different scholars at different times. Nevertheless, one thing which is evident from the above discussion is that justice has been given a sacrosanct place in every society.
Hence, every civilised society seeks to establish a just society. There are various means to achieve this end, power being one of them. This brings us to what the French philosopher Blaise Pascal had observed: "Justice without power is inefficient; power without justice is tyranny. Justice without power is opposed, because there are always wicked men. Power without justice is soon questioned. Justice and power must therefore be brought together, so that whatever is just may be powerful, and whatever is powerful may be just."
If someone is entrusted with the function of justice dispensation, it becomes very essential that he is given some powers to carry out his functions in an efficient manner. There will always be men and forces around him who will try to deter him from the path of justice by pressurising and influencing him. However, if requisite power is delegated to him, he will not only be in a position to give a just decision, but also make sure that his decision his implemented. Similarly, power must always be accompanied with a just objective; otherwise it will result in tyranny. If someone is conferred with enormous powers and he exercises the same arbitrarily and in an unjust manner, then in no time people will start questioning his powers. Hence, justice and power should walk hand in hand because one is incomplete without the other. If power disregards justice, it results in anarchy and chaos and ultimately, people disregards such power.
The Indian JudiciaryIn this context, let us take the example of the Indian judiciary. The Indian Constitution has conferred enormous powers in the Supreme Court of India, which is the final authority to invalidate executive and legislative action. We are under a Constitution, but the Constitution is what the judges say. The Apex Court can be considered supreme by virtue of Articles 141, 142 and 144. The High Courts, by virtue of Article 226 enjoy enormous powers over the executive and legislature. The people of India, whenever confronted by an act of injustice committed by the other two organs of the State, look up to the Court as the guardian of their life, liberty and justice.
The role of the judiciary as the guardian of the Constitution would have been futile if it had not been given this power to declare a law unconstitutional and hence, null and void. However, when the judiciary makes an unjust exercise of this power by misinterpreting a particular law and declaring it unconstitutional as per their whims and fancies, then it acts like a tyrant.
The law declared by Supreme Court is binding on all Courts in India by virtue of Article 141. The Court can punish those who do not follow its orders. Imagine a situation where the Court has been divested of its power to punish a person who violates its decision? In such a situation, everyone would start defying the decisions of the courts and its objective of justice dispensation would be an utter failure.
Time and again, the Indian judiciary has lived up to the expectations of the common man by passing judgments in favour of them, by supporting the right cause, the cause of justice. However, at times the judges have exercised their powers without keeping in mind the objective that the Courts seek to achieve. To support this view, I would like to cite the case of ADM Jabalpur v Shivakant Shukla case. In this case four of the five senior most judges of the Supreme Court, including the then Chief Justice of India struck a blow to the cherished ideals of liberty and justice embodied in our Constitution. The detenues detained without a trial under the Maintenance of the Internal Security Act (MISA) during the period of emergency had filed the writ of habeas corpus under Article 226 in various High Courts. The various High Courts upheld the detenues right to file a writ of Habeas Corpus. However, when this case reached the Supreme Court, four judges sitting on the bench of the most powerful justice delivery institution of the country failed to deliver justice and they favoured the Government. There are a plethora of such cases where the cause of justice failed because the judiciary decided to favour the powerful.
Another such example is that of the three Common Cause cases (Common Cause, A Registered Society v Union Of India & Ors ) which dealt with the issue of corrupt practices in various fields of public life. In this case, the Supreme Court even after acknowledging the fact that Mr. Satish Sharma, the then Minister of State for Petroleum acted in a wholly arbitrary and unjust manner while allotting the petrol pumps, which were meant to be allotted to help the needy sections of the society acquitted him without any penalty.
In 1970's came the concept of Public Interest Litigation through which the judiciary boldly departed from their traditional rule of locus standii and intervened in a variety of matters affecting groups of underprivileged people, and in the process, evolving new principles and procedures of public interest. This concept has in fact, expanded the role of the judiciary and has given rise to what is known as Judicial Activism. Judicial activism encompasses an area of legislative vacuum in the field of human rights. It reinforces the strength of democracy and reaffirms the faith of the common man in the Rule of Law. It has been profitably used by the exploited and the downtrodden such as the bonded labour, prison inmates, under trial prisoners, sex workers and other such powerless groups in their endeavours to protect their basic human rights.
However, in the recent times, the judiciary has overstepped the boundaries of its jurisdiction and thereby, disturbing the system of separation of powers. Sensing this judicial over activism, Justice Markandey Katju and Justice A.K. Mathur, in their judgment in Divisional Manager, Aravali Golf Club v/s Chander Hass suggested that judges should observe judicial restraint and not cross their limit.
The LegislatureThe Parliament has been empowered by the Constitution to enact laws for the country. The main objective of such laws is to maintain law and order in the society and to ensure the welfare of the citizens. However, when this power is misused by the legislature by enacting draconian laws which gives arbitrary powers in the hands of the administration and the police, it results in the oppression of the innocent. India has had and continues to have a veritable spectrum of draconian laws that are supposedly aimed at stopping terrorism. Maintenance of Internal Security Act (MISA), Terrorist and Disruptive Activities (Prevention) Act (TADA), Prevention Of Terrorism Act (POTA), the Disturbed Areas Act (DAA), the Armed Forces Special Powers Act (AFSPA).
These laws, when implemented mostly resulted in the oppression of the most under-privileged members of our society. Hence, people constantly keep on demanding for scrapping off such laws. In the recent times, the Armed Forces Special Powers Act (AFSPA) is facing severe criticism from all quarters of society especially, after the case of Thangjam Manorama in Manipur. It does not take a socio political genius to figure out that the very word of the Act begets heinous misuse. In the name of maintenance of public order, it gives enormous powers in the hands of the mentioned officers and also gives sweeping immunity to anyone acting under this Act. When one considers this Act in tandem with a corrupt state and police machinery, one can easily comprehend the human right abuses that might result as a result of its misuse. Same is the case with the Special Public Protection act of Chattisgarh.
The ExecutiveThe Executive in charge of the governance of the country and framing policies for the common welfare of all has been vested with enormous powers which need to be channelized in a proper direction so that it is not misused by them. In the absence of justice, any process of governance and any government can monopolise power, discriminate against the poor and marginalised, and exclude large sections of people from the political and economic process.
The Constitution of India has very clearly demarcated the area of jurisdiction of all organs of the Government, so that one organ does not overstep into the jurisdiction the other. In spite of this concept of separation of power, there is an inherent system of checks and balances to ensure that all the organs are functioning in accordance with the Constitution and seeking to achieve the goals enshrined therein. The basic objective of such a system of checks and balances is to ensure that the enormous powers conferred on each of these organs is exercised in a just manner.
Directive Principles of State PolicyMoving on, let us talk about the Directive Principles of State policy enshrined in our Constitution. These Principles are guidelines to the Central and State Governments of India to keep in mind while framing laws and policies for the Union and states respectively. These principles laid are considered fundamental in the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country. However, the striking characteristic of these principles is that they are not justiceable and enforceable by a court of law.
A thorough reading of the Directive Principles of State Policy suggests that these principles aim at establishing a social and economic democracy through a welfare state. It enshrines noble ideals like the right to equal justice and free legal aid (Article 39A), Provision for free and compulsory education for children (Article 45), etc. The implementation of these policies will result in a just and welfare society. However, the non justiceability factor renders them somewhat powerless and hence, inefficient. Only aspiring to provide justice is not sufficient, some power or force needs to be attached to it for the proper implementation of these principles.
The United NationsSimply boasting of a noble and just objective does not serve any purpose, unless we are able to translate this objective into a reality. Many organisations are formed now and again for the cause of human rights and justice dispensation. Nevertheless, some of them are unable to make an impact because they are not equipped with adequate power. The United Nations was founded as a successor to the League of Nations which was considered to be ineffective in its role as an international governing body, as it had been unable to prevent World War II. The Preamble of the United Nation Charter reflects the resolution of the member states to save the succeeding generations from wars, reaffirm faith in the fundamental human rights, dignity of human persons and equal rights for men and women, promote social progress, etc.
In spite of these noble objectives of the UN enshrined in its Charter, the United Nations has failed to live up to the expectations. The main reason behind its failure is its excessive dependence on its member states especially the superpowers which renders it powerless to take independent actions without support from its members. Taking advantage of this, the superpowers often try to serve its personal interests through the UN. For example, United States of America launched war against Afghanistan to capture Osama bin Laden, destroy al-Qaeda, and remove the Taliban regime which had provided support and safe harbour to al-Qaeda. The war resulted in thousands of deaths grave violations of human rights, but Osama Bin Laden is still free. The same thing happened in Iraq after a few years. Two nations were almost destroyed by a superpower, but the UN failed to do anything. War mongering dictators and suppressing regimes sensing this limitation of the UN feel free to continue with non peaceful activities like nuclear tests, accumulation of Weapons of Mass Destruction and thus defying the UN, while the UN just keeps on considering sanctions. One such example in the present times is that of Iran.
The fact that UN has not been able to live upto the ideals enshrined in its Charter is because it does not have the requisite power to take any stern action on its own against any state. In the words of former under-secretary-general Brian Urquhart, the UN has "great responsibility and expectations, but little power". The UN will only be able to provide real justice to all only when the requisite power is conferred on it because justice without power is inefficient.
Power should always be exercised in a manner which benefits the maximum and injures none. The superpowers like the United States of America, United Kingdom, etc that are powerful in every sense of the term need to use their power in a just manner which is beneficial to both its citizens and the less developed countries. In case, they misuse their power in a despotic manner trying to crush or dominate the weaker nations, their power does not serve any purpose.
This discussion on justice and power being complementary to each other can go on and on. It is not restricted to the executive, the legislature or the judiciary. It is always a big risk to confer absolute and unrestricted power in the hands of an individual or an institution. Even, the Fundamental Rights, which are the most sacrosanct and significant rights of an individual are subject to restrictions. No right is absolute and restricted. Every right comes with a corresponding duty. All these clearly reflect it is a understood fact that unrestricted privileges and powers are prone to misuse.
The very purpose of conferring powers in the hands of an individual is to empower him to perform his functions in an efficient manner. However, when he uses this power in an unjust and arbitrary manner it always produces negative results. John Emerich Edward Dalberg Acton, the historian and moralist, said that power corrupts and absolute power corrupts absolutely. History is full of examples of revolts against unjust rulers and tyrants. We have observed in the past that whenever the ruler or the people in power misused their power, they had to face the wrath of the people. A leader like Indira Gandhi who was adored by millions of Indians was also voted out of power when she abused the power which was given to her by imposing the Emergency.
At the same time, one ought to realise this fact that institutions and individuals who have been entrusted with or are willing to participate in justice dispensation and other welfare activities needs to be empowered in a manner so that they can produce the desired results. Many organisations, viz. the NGO's, human rights organizations, etc are formed with a noble objective, but they unable to achieve the desired results because of inadequate power to make an impact in the society. Even the concept of rule of law does not demand elimination of discretionary power, but that the law should be able to control its exercise. Parliament constantly confers upon public authorities powers which on their face might seem absolute and arbitrary. However, it is the duty of the judiciary to weave such restrictive principles which requires statutory powers to be exercised reasonably and in good faith, for proper purposes only, and in accordance with the spirit as well as the letter of the empowering law.
It can be easily concluded that power is an essential means to achieve the goal of justice. Until and unless power is conferred, no individual, or organisation or government or any other body will not be able to carry out any justice dispensation and other developmental functions in an efficient way. However, there should be a mechanism in every system to ensure that this power is exercised in a just manner or else it will result in the oppression of innocent people. William Pitt, the 1st Earl of Chatham has very rightly observed Unlimited power is apt to corrupt the minds of those who possess it; and this I know, my lords, that where laws end, tyranny begins.
# Constitution of India
# Justice V.R. Krishna Iyer, Legally Speaking, Universal Law Publishing Pvt. Ltd., New Delhi (2005)
# Justice V.R. Krishna Iyer, Off the Bench, Universal Law Publishing Pvt. Ltd., New Delhi (2005)
# Patrick Olivelle , Manu's Code of Law, Oxford University Press, New Delhi (2006)
# Soli J. Sorabjee, Law and Justice – An Anthology, Universal Law Publishing Pvt. Ltd., New Delhi (2006)
# Shilja Chander , Justice V.R. Krishna Iyer on Fundamental Rights and Directive Principles of State Policy, Deep & Deep Publications, New Delhi (1995)
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