Blog by Arvind Srinivasan: January 2005

(From my collection)
Of Courts, Justice, Law and Law makers

Note: All of the legal terms here are entirely as interpreted by a layman. The author does not guarantee the validity of these interpretations.

Recently judicial system in India has taken proactive interest about all topics in India. This really seems to have started a lot of group-discussionsamong both legal & non-legal experts alike. The primary point of speculation being, what exactly is the judicial system responsible for. Are they responsible for upholding the constitution, upholding the implied and derived laws,upholding the implementation of laws,uphold control over creation of new laws,managing the government,running the government or acheiving zero contempt
cases

Whew, that was a long list.

Upholding the Constitution.

Constitution , describing the basic framework of responsibilities and rights ofentities of any given country, has also a mechanism of safeguarding the same;the mechanism we now call as Judicial system. It is a given thing that justiceis the primary objective of the mechanism.

This term 'justice' opens up a box, from which the points (listed above for discussion) start showing up one by one. I guess we all agree that there is nothing perfect in this world, which appliesto the definition of term 'justice'. Any fair interpretation or a look at thedictionary will define 'justice' as - being fair, honest, upholding morals/ethics.

This is where all the controversy starts. What is fair and honest today, might not have been fair yesterday and might not remain fair tomorrow. So will be the case with morals/ethics as well. And what is moral in one mind might not be moral in another. A socialistic system will say it is moral to steal from a rich guy to feed poor guys while on the other hand a capitalistic system will say it is not.

So are judges expected to be above all of this while delivering their judgementsor is it humanely possible to deliver judgements rising above such views ?

What we are imposing on judges, is to be non-personal, which is almost impossible. Rarely do decision-making process not depend on emotions. How else can one explain a lower-court ruling the same case in one-way while a higher-court rules in another way and benches of judges rarely agree on any judgement ?
The most talked about elections in USA (2000), ended by the bench of 9 judges, 7 voting in favor and 2 against. Does that mean, the same case heard by another set of judges might bring about a different result. One would not rule out the possibility.

Well, the same applies to the case being handled by different set of lawyers. People may argue that, jury system is a good alternative. Well it actually does not make the situation any better, primarily because, the fate of the accused entirely lies in the collective emotion of the jury members. The same argument of different set of jury members can/might produce a different result still applies. The point that is being made here, is justice is subjective as well. That being the case, can such a subjective decision cause capital punishments like death?.

So is there a way out ?. One would say there can be no perfect solution. Considering which, capital punishments should not imposed at all.

Upholding the implied and derived laws

Implied laws are very controversial. Take the typical example of the "lawbanning conversions" in Tamilnadu. People who oppose the argument say this.

Article 25 of the Constitution grants to citizens the right to freedom of religion and adds that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. The right to interpret these terms rests with the judiciary. Additionally, the exercise of these rights is limited by the demands of public order, morality and health concerns. The right to freedom of religion does not include the license to build a temple in the middle of a public thoroughfare or to run down another religion

So what does the article 25 of Indian constitution say ?

"Freedom of conscience and free profession, practice and propagation of religion"

The term that is ambiguous is , what exactly does the founding fathers of the constitution mean by the term "propagation". Well, even themselves, when asked couple of times, might reply differently. On one-hand it can be said that freedom to propagate includes, freedom to convert. That to me is a very sound argument. On the other hand, Supreme court of India, in a landmark ruling...

Chief Justice Ray said, ``We have no doubt that it is in this sense that the word ``propagate'' has been used for what the Article grants is not the right to convert another person to one's own religion but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that Article 25 (1) guarantees ``freedom of conscience'' to every citizen and not merelyto the followers of one particular religion and that, in turn, postulates that there is no fundamental right to convert another person to one's own religion because, if a person undertakes the conversion of a person to his religion as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the freedom of conscience guaranteed to all the citizens alike.

But, as often as they do, the constitution has additional clauses, that states can create their own laws to impose secularism. Well, that I guess brings us back to square one.

Now, where does that leave us ?.

Derived laws, brings the roles and responsibilities of lawmakers to judges. That in itself adds a new dimension to the already confused roles. The lawmakers and the acts within parliament in house, does not come under the legal purview of the judicial system. Makes perfect sense ( even though it has been abused time and again by our politicians, particularly M.Karunanidhi) that law-upholding people can't oversee lawmakers. But derived laws, manifest the very thing that constitution wanted to avoid, cyclic-power-struggle. Almost any new law (except the likes of cyber crimes) ends up as an extension of existing law.

So who decides and who overrules?

Upholding the implementation of laws

This, I guess, most of us are positive that, respective governments areresponsible for implementation. However, failure of non-implementation, is simply out of bounds for them. We will discuss this along with , "Achieving zero contempt cases". Contempt Is defined as disobeying, maligning the status of the court. As evidencedby the cauvery water imbroglio last winter, the supreme court was pretty handicapped. They could do nothing more than issue threats of contempt, but outcome was nothing. Till now, the issue has not been resolved and this winter it is going to stage a comeback.

The other aspect of contempt cases is suo-moto actions by judges themselves for people causing disrepute to the judicial system. I remember a famous quote (but as always fail to remember the 'quoter' ;) "The society can/will always speculate about judgements. It is the responsibility of the system to stay free from speculations and not the responsibility of society, to not speculate".

As complicated it might sound, it is as simple as saying, do hold people for contempt of court just because they differ with the opinion of the presiding judge. It is the responsibility of judge themselves to make sure they do NOT allow room for such speculations and accusations. Recent developments tend to indicate an inclination to file a contempt petition at the drop of a hat. However people manage to by-pass the system.
Uphold control over creation of new laws This was discussed earlier along with the topic of "implied and derived laws".

To summarize, most new laws are typically an amendment to an existing law. As long as they do not violate constitutional guarantees, amendments are allowed. Can this be technically possible? Let us consider the implications. If any changes to existing constitution is to be permitted, it should not affect any other laws. But, I thought amendments were meant to do that!

If it is an entirely new law, like the One-man one-post law by Tamilnadu government what jurisdictional guidelines will the justice system follow? (I can already hear somebody say this is not a new law). How much ever unfair a law may sound, hey it is "the law". I fail to understand, the point of questioning new laws in the court.

Finally,
Managing and Running the Government Of late, every court seems to come up with observations on the lines of Why the Government chose a particular way of doing things as opposed to another.What I fail to see is, as long as both ways are legal, how does this fall underthe jurisdiction of the justice system. One would always think, that administrative decisions, as long as theyare legally valid, should not and would not be questioned by the law. Recently,in the TN-Government vs. Employee union's case, the High-court bench came up with this question.

"If the striking government servants are willing to come for negotiations, why can't you negotiate?'' When the AG said it was not a legal issue before the court, Mr. Justice Reddy retorted: ``Why not? This is not a magistrate court. This is a court of justice, not just a court of law''

Well, well, well. I beg to differ from the views of the honorable justice. The people running the Government have their own constraints to be working with. One does not see the point in questioning such government decisions. If it is perfectly legal for government to choose one-way or the other, then it is the government's prerogative. Where is the scope for discussion?

Everyone would agree that, court can agree or disagree with the opinion. But in the process of disagreement, the observations/reasons sometimes sound unreasonable.

So going by the above argument, the unions can do whatever they like, whenever they like and when they decide to negotiate, the Government have to sit with them for negotiations? That to me sounds unreasonable.

Well, arguments like, if tenant refuses to vacate rented premises, and owner initiating removing them from the premises action, would be very tough. Since, the tenant might now want to negotiate, does that mean the owner have to sing & dance to the tunes of the person holding him by ransom?

To sum up,

The role of people acting in the Justice-system is very tough and demands Superior skills than ordinary people, because they have to stand above individual preferences to deliver unbiased, unemotional judgements.

The role of people who provision such people who work for justice-system is even more tougher, because it is their responsibility to recruit people who can perform in the Justice-system, the way they are supposed to.
It would only be a jewel in the crown, if all of these people realized how precious their powers are and started channelising them for a better living & framework for the country.

Blog by Arvind Srinivasan

Wednesday, January 26, 2005

Of Courts & Justices

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