Democracy of Judicial Remedies

“The Judiciary is bound to shape the processes of law to actualize the constitutional resolve to secure equal justice to all”.

THE DAWN of the modern era of human rights culture was signaled by the Proclamation by the General Assembly of the United Nations of the Universal Declaration of Human Rights in 1948. They include not merely the fundamental freedoms sans which human dignity and personal liberty suffer eclipse but also the right to fair and speedy justice through independent tribunals. And as John Marshall expressed it, “it is emphatically the province and duty of the judicial department to say what the law is” The bite of the law is enforcement and so the judge is oath-bound to execute curial decisions. Remedial jurisprudence is integral to judicial justice and courts are the custodians of citizen's rights. The key player in the administration of justice is therefore the institution of the robed brethren. The judiciary is part of our democracy and all its implications must be imported into the judicial process. Once we accept the proposition that in a democratic society the court system plays a crucial role in seeing that neither license nor absolutism becomes dominant, the difficult tasks of the court vividly stare us in the face. As Chief Justice Burger has noted: "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; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; 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 work, and on the public streets".

In a democracy, the courts belong not to the lawyers and judges but to the `citizen', as Jerome Frank wrote. “Once we accept this democratic dimension of the Judiciary, the rule of law gains a philosophical elevation”. “The highest is not above the law; the humblest is not beneath the law”. The true conception of the administration of justice is that the lowly concern of the least person is of the highest consideration to the state and the court. The judges have a dynamic role in the dispensation of justice, a complex operation that is wide-ranging and capable of specific and general application, and includes interpretation of law and assessment of facts. Social sensitivity makes all the difference, economic philosophy pours invigorating wine into verbal vessels and radical activism moulds relief, departing, if need be, from traditional patterns. Judges are social engineers.

It is the function of our courts to keep the doctrines up-to-date, tuned to the progressive mores of the community. This is judicial legislation, and the judge legislates at his peril. Nevertheless, it is the necessity and duty of such legislation that gives to judicial office its highest honour; and no brave and honest judge shirks the duty or fears the peril. The Bench and the Bar together have a grand task. They have to strive to ensure that justice is delivered to society, not only to individuals with their grievances but to the larger community of victims of injustice. Only a judicial culture which has social justice, human dignity and egalite woven into it can make the judicature in a Third World country, based on a socialistic democratic order, functional and professional. A dynamic jurisprudence invigorated by a developmentally driven judicial process is the challenge of our age.

The great divide between the individualistic colonial legal system and the value-laden jurisprudence of the socially sensitive Constitution must be grasped if we are to apprehend the prospects of judicial development which has manifested itself as social action litigation and public interest litigation in India. This quantum leap from the colonial to the radical is implicit in the refreshingly creative Article 39 A of the Constitution which mandates that the state shall secure that the operation of the legal system shall promote justice, on a basis of equal opportunity and shall ensure that opportunities for securing justice are not denied to any citizen. The Judiciary is bound to shape the processes of the law to actualise the constitutional resolve to secure equal justice to all. A people who are illiterate by and large, indigent in no small measure, feudal in their way of life, and tribal and backward in large numbers, need an unconventional cadre of jurists and judges, if equal justice under the law is to be a reality. If there is breach, judicial power must offer effective shelter. Even if a legislation hurting or hampering the backward sector is passed, the higher courts have to declare the statute void, if it be contra-constitutional. In sum, the judicial process, in its functional fulfillment, must be at once a shield and sword in defending the have-nots when injustice afflicts them. And this must be possible even if the humbler folk, directly aggrieved, are too weak to move the court on their own and a socially sensitive agency advocates the cause. Judicial compassion has a versatile jurisdiction with a good Samaritan jurisprudence.

That is its fiat justicia mandate. This is the rationale of public interest litigation which goes to the aid of the disabled and the deprived, the alienated and the marginalized. In a feudal milieu and primitive cosmos, fundamental freedoms become a casualty and the battle for social justice then belongs to the court. For the socio-economic `deprived' abounding in India, social justice is constitutional cant and judicial justice a rope of sand unless enforceability is easy and the forensic process is committed to emphatic realism through grant of judicial relief. The Supreme Court and the High Courts, under solemn oath, swear to do justice, using the legal process as a means towards that end. If the judges take the Constitution seriously, they are bound to accelerate the process of forensic perestroika geared to the goal of affirmative relief within the reach of everyone with a grievance, personal or vicarious. Justice, in the constitutional connotation, embraces not mere adjudication between two litigants. Deprivation of human rights often afflicts people without the wherewithal to afford litigation. But there may be socially sensitive public-spirited voluntary organisations willing to fight, in court or out of court, for the preservation and protection of the common people's legal rights. They must have the right to move the court on behalf of the suffering sections, the cause of action being that of the neighbour whose injury deserves to be redressed by the court whose concern is to right a wrong and vindicate justice if it has a public dimension.

These public law operations may be a new phenomenon, not to the taste of the classical jurists. Similarly, a poor person may not be able to secure available evidence without the aid of the court. The sky is the limit if by affirmative action at the procedural and substantive levels, directed to see that justice is done, the court's conscience is activated to achieve just results. Not whim or humour but reasonable, conscionable procedure. In sum, Third World jurisprudence must inspire a result-oriented credibility in the Lazarus sector and Abel bracket. Then only will the rule of life legitimise the rule of law. It is a tribute to Indian justice system that South Africa enshrines Public Interest Litigation as the cornerstone of its Bill of Rights, and the Constitution confers standing, as a matter of fundamental right, upon public citizens who may bring action before the Constitutional Court for violation of other peoples' rights. It thus radically immunizes the standing of social action or public interest petitioners, which still remains subject to judicial whims and vagaries in the country of origin, India.