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The Term Justice Is A Noun And The Duty Of The Court Is To Transform It Into A Verb

Science is a journey from impertinent questions to pertinent answers. Likewise, the court is a site of a journey from anger to peaceful resolutions. Although, we are disturbed with certain facts that originated from the corridors of constitutional courts, but still, the constitutionalism and constitutional morality will be best preserved by the courts when the state and the market, the two most powerful organs of a democracy, keep themselves distanced from the community and leave it alone to exercise it freedom of choice.

Although some intellectuals claim that the term State includes judiciary but I respectfully differ with them on the score that in a country like India courts are absolutely independent in terms of its unique Nature of power conferred by the supreme Law of the land i.e., The Constitution of India, and such power is to act as a trustee of people's fundamental rights.

The Court doesn't exist to disturb the government but at the same time it is under no obligation to please the government, because all courts are working under the constitution and not over it.

When we talk about justice, we by necessary implications indicate the mindful consideration of legal principles which are required to be fitted as per the factual matrix of each case. Attendant circumstances and elements of different biases are also relevant considerations. How it works is beautifully analyzed by a Nobel laureate Professor Daniel Kahneman in his celebrated work "Thinking fast and slow".1

These principles are basically a result of logical conclusions by assimilating and analyzing large samples of data and by implementing statistical analysis and methods, as such, the same ought to be discussed and if required utilized in the curial combats.

Law is what law does. Our judges are not unmindful of their times, they are innovative but careful. The letters of law never ensure justice. It is the courage, upbringing and wisdom of a Judge which ensures the justice. The Majesty and cerebral alacrity of the Constitution of India is brilliantly expressed in the Preamble which inter alia says that justice is social, economic and political. Justice Iyer had said that,

'A society is judged by the quality of Justice it delivers to its citizen. Preamble is a part of the basic structure and thus concept of mutation is unknown to it. In fine, I say that.'

In this context, it is pertinent to highlight the vibrancy of Justice V.R Krishnaiyer, while His Lordship had invested a lot to trace out the luminosity of the expression 'Social justice' in Rajendra Prasad etc. vs State of Uttar Pradesh.2 The question before His Lordships' hands was, what is 'social justice'? In order to frame an answer His Lordship has referred the contention of Justice Balakrishna Iyer, in Sridharan Motor Service, Attur v. Industrial Tribunal, Madras and Others3, which was as follows:

'Concepts of social justice have varied with age and clime. What would have appeared to be indubitable social justice to a Norman or Saxon in the days of William the Conqueror will not be recognized as such in England today. What may appear to be incontrovertible social justice to a resident of Quebec may wear a different aspect to a resident of Peking.

If it could be possible for Confusius, Manu, Hammurabi and Solomon to meet together at a conference table, I doubt whether they would be able to evolve agreed formulae as to what constitutes social justice, which is a very controversial field.... In countries with democratic forms of Government public opinion and the law act and react on each other.'
Therefore, it is logically deducible that, the expression, 'social justice' cannot be achieved by any straightjacket formulae.

In State of Haryana v. Darshana Devi, 4 Justice Iyer dismissed the special leave petition filed by the State of Haryana and observed that:
'…….Here is a case of a widow and daughter claiming compensation for the killing of the sole bread-winner by a State Transport bus; and the Haryana Government, instead of acting on social justice and generously settling the claim, fights like a cantankerous litigant even by avoiding adjudication through the device of asking for Court fee from the pathetic plaintiffs.'

In a neoteric way, the Hon'ble Rajasthan High Court has specifically stressed on the duty of the State to provide ration to every person residing in the State and further the Hon'ble High Court directed the State Government to make sure that ration is made available to the Pakistani minority migrants, residing in various districts in the State.5

The Bench of Justice Vijay Bishnoi and Justice Rameshwar Vyas further directed the State Government to specify regarding vaccination of those persons who are not having the prescribed identity cards including Pakistani minority migrants. This is what can be cited as a true achievement of 'social justice'.

The Court's response in a situation like this is not only warranted but it reminds me of the restoration of the constitutional values which are ingrained in the Preamble to the Constitution, which starts with the expression, "We, the people of India...” The proactive role of the judiciary is essential in these trying times. More particularly, when the human survival is prevented by the reason of callous executive inertia and narrow policy, rather I must say 'narrow vision' of the person who has been at the helm of affairs and ultimately caused serious prejudices to the interest of human survival, more particularly to the 'have nots'.

In a democracy, in order to understand the concept of justice, one must first understand what rolethe people of India expect the court to play in the matter of interpreting the law and also in executing justice between parties.

If we look at Paragraph 2 of the Judgment, reported in (2019) 2 SCC 636, Ashwini Kumar vs Union of India, the Hon'ble Supreme Court has quoted the speech, delivered by the President of India in his address on the Constitution Day, with approval. In that excerpt of speech, brief definition of social, political and economic justice has been provided, which is as follows:
'In the Preamble, justice is not seen as uni dimensional. It is viewed as having implications across political, economic and social spheres. Political justice implies the equal participation of all adults in the political process and the just formulation and implementation of laws. Economic justice implies the ultimate eradication of poverty, equal opportunities to earn a livelihood, and fair wages. As such the expansion of economic, entrepreneurship and job opportunities are among examples of economic justice.

Given the diverse history of our people, and given imbalances and hierarchies that have sometimes marked our past, social justice remains a touchstone of our nation building. At the simplest level, it implies the removal of societal imbalances and the harmonization of rival claims and needs of different communities and groups. Social justice is about providing equal opportunities…..'

Now if we look at the speech as delivered by the Hon'ble President of India, then we shall find inter alia that, the Hon'ble President has said that the people of India are the ultimate custodians of the Constitution. The Hon'ble President has further said it is in them that sovereignty vests and it is in their name that the Constitution was adopted.

The constitution empowers the citizens, but the citizens too empower the constitution - by following it and by ad-hearing to it, by protecting it and by preserving to make it more meaningful with words and deeds. The constitution is nobody's preserved - but it is everybody's preserved. Now the question comes that, when the custodians of the Constitution aren't leading happy lives and are tremendously unsecured, then who will come in aid of them?

The Hon'ble President has further said that, in the Preamble, justice is not seen as unidimensional. It is viewed as having implications across political, economic and social spheres. Political justice implies the equal participations of our adults in the political process and the just formulation and implementations of laws. Economic justice implies the ultimate eradication of poverties, equal opportunities to earn livelihood and fair wages. As such, the expansion of economic entrepreneurship and job opportunities is amongst examples of economic justice.

I put this question to myself with the deepest humility and with the highest regard to the Executive head of the State: Has the desire of the President been fulfilled after 75 years of independence? If not, who are responsible for such failure? Does it in any way transpire from the health of our economy, the massive unemployment rates, the poverty, the social disharmony, the increasing crime rates, lawlessness, that people are receiving.

Whether the form and manner of social and political justice that 'have nots' are receiving are appropriate reflection of what were implanted by the makers of the Constitution?

In a democratic society, the court system plays an essential role in seeing that neither license nor tyranny becomes dominant. Chief Justice Burger has noted both the necessity and the difficulty of this task:

'A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society; that people come to believe that inefficiency and delay will drain even a just judgment of its value.'7

That people who have long been exploited in the smaller transaction of daily life come to belief that courts cannot vindicate their legal rights from fraud and overreaching;

That people come to believe the law- in the larger sense- cannot fulfill its primary function to protect them and their families in their homes, at their works and on the public streets.

End-Notes:
  1. Daniel Kahneman, Thinking, Fast and Slow, Farrar, Straus and Giroux, New York (2013)
  2. 1979 AIR 916, 1979 SCR (3) 78
  3. (1959) ILLJ 380 Mad
  4. 1979 AIR 855, 1979 SCR (3) 184
  5. Deep Mukherjee, “Rajasthan HC directs state to ensure availability of ration for Pakistani migrants”, The Indian Express, Jaipur, May 29, 2021
  6. 1983 AIR 130, 1983 SCR (2) 165
  7. American Bar Association Journal, Vol. 56, October 1970, Page No. 934

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