LAW VS. JUSTICE

By P. KODANDA RAO, M.A.

(Servants of India Society, Bangalore)

My views are those of a layman who had no systematic education in law and no professional experience of law courts. They have no expert value. They are only those of a social worker who has been in public life for over thirty-five years and is more interested in the philosophy, rather than the practice, of the Rule of Law and who is more competent to raise questions than furnish answers.

The International Commission of Jurists defined the Rule of Law as “those rules, procedures and institutions which have proved necessary to protect the freedom of the individual within the framework of an organised society.” What, in perspective, is the extent of individual freedom in an organised society? Individual freedom is not absolute; it is limited by a variety of societies, ranging from the domestic to the national, and now the international. The individual is hemmed in and conditioned by social controls practically from his birth right up to his death. Most of the thinking and doing of most individuals most of their lives is in conformity to social conditioning. The few who assert their freedom and question conformity in some respects are, however, content to conform to other social controls without question and often without understanding. Individual freedom seems to be small compared with social conformity, perhaps a ripple on the surface of the ocean of social conformity due to ubiquitous social control.

Even democracy, which places a high value on individual freedom, tends to reduce it. Democratic legislatures pour out a continuous stream of laws, each one of which, by and large, commands the citizen to do something or refrain from doing it, and thus steadily attenuates the diminishing freedom of the individual. If this process continues indefinitely, individual freedom may taper off to zero!

Individual freedom, such as it is, is of the highest value since it permits change and reform and progress. Social control, which is restrictive of individual liberty, is coercive. Non-conformity is penalised by painful sanctions like social disapproval, ostracism, boycott and persecution, fine, imprisonment and decapitation. Voluntary conformity is very often due to potential sanctions, though most people, being habituated to it, are not conscious of it, even as they are not conscious of the weight of the atmosphere they carry. Restrictions on individual liberty find justification in promoting social justice, namely, equality of opportunity to individuals for economic advancement, social acceptability, religious freedom, artistic fulfilment and political responsibility. Traffic regulations, which restrict the freedom of the individual to meander at will on the public road, are justified to ensure the safety of all individuals who use the road, including the individual restrained. Taxing the rich to provide amenities to the poor finds justification in social justice. If young men are conscripted to risk their lives in war, their individual freedom is restricted to safeguard the freedom of their nation. But if an individual is restricted in the expression of his opinion, without incitement to violence, it goes against social justice. The problem of individual liberty in an organised society is to promote maximum social justice with minimum restriction on individual liberty.

The chief institution for securing this balance is the State, the organ of the political society. It regulates the relations between individual liberty and social justice by means of laws. It penalises non-conformity by sanctions like fine, imprisonment and, finally, death. It makes laws through its legislature, operates them through its executive, and interprets them through its judiciary. To enable it to function effectively, without fear or favour and with complete impartiality, the judiciary is made independent of the other two organs of the State. It has been the high responsibility of the judiciary to interpose its authority to save individual freedom from unwarranted encroachment by the executive, and even in some cases by the legislature, if subordinate to a Constitution. Hence the separation of powers.

Curiously enough, the Lord Chancellor in England combines in himself all the three functions. He is the head of the judiciary; he is a member of the Cabinet; and he is a member of the House of Lords. Separation of functions is absolute in the United States of America on the theory of “checks and balances” and of law subordinate to the Constitution. Nevertheless, it would seem that individual liberty is protected as effectively in England as in America, if not more so. On the other hand, the American system seems anomalous in some respects. For instance, the American Constitution postulates freedom of speech in absolute terms. Nevertheless, the American Supreme Court, which took the oath to uphold the Constitution, violated it by abridging absolute freedom of speech by inventing the theory of inherent police powers, which was not expressively sanctioned by the Constitution. The abridgement may be justified by commonsense and the impracticability of the Constitution. The remedy for it is the appropriate amendment of the Constitution and not its judicial violation.

The presumption that an independent judiciary is needed to protect individual freedom from invasion by the executive seems largely to be a hang-over of the political past when there was an unbridgeable distinction between the ruler and the ruled. The King was the sovereign, who was born to his station and exercised autocratic powers and could be removed only by death or assassination. Often he lived high and apart from his subjects, conscripted them and levied taxes for his luxury in peace and his glory in war. The interests of the ruler and the ruled were not necessarily identical in all respects. The difference was further widened when the two were divided by race, religion, language and country of origin, as in the case of imperial ruler over colonial subjects. They were antagonistic to each other.

The relation loses much of its validity in a modern democracy, particularly with adult franchise. The ruler and the ruled are one and identical. Sovereignty vests in the whole body of adult voters, who constitute the political society. Because their numbers are too large to function as the legislature, they elect a manageable number of representatives to make laws. The legislature is thus a committee of the electorate, and is its agent. Since the legislature is too large to function as the executive, a sub-committee of it, the Cabinet, functions as the Government. The relation is comparable to that of the general body, the managing committee, and the executive officer of a service organisation, like a co-operative society. There are occasional disharmonies between the several links in the chain. But there is no inherent antagonism between them. They have identical interests, and their mutual relations are more co-operative than conflicting. The problem in a modern democracy is not so much the protection of individual liberty from attack by the State as of subordinating individual liberty just enough to serve the ends of social justice and no more. The approach is, or should be, vitally different.

The State seeks to promote social justice by means of laws, procedural and substantive, and by institutions, the courts of justice, presided over by judges or magistrates. Generally, there is a hierarchy of courts, from the village court at the bottom to the Supreme Court at the top, and other courts in between. The judges, except at the village level, have all at least the minimum qualifications of a degree in law and some legal experience. The main difference between the different grades of judges is that, apart from individual excellences at all levels, those of the higher courts have generally longer experience, receive higher salaries and have a higher social status and perhaps greater judicial independence. But all courts, from the lowest to the highest, have a common function: to render justice.

Every dispute has at least two parties. Both of them cannot, in the nature of things, have justice on their sides. The judge must decide in favour of one and against the other. While the winner generally claims that justice has been done, the loser is not likely to grant it. If the judge has rendered justice, both the parties should be able to acknowledge it. When several judges, sitting as a bench, give two different judgments, is one just and the other unjust? None of the differing judges may be discounted as ignorant, perverse or bent on injustice. It sometimes happens, as in the case of the American Supreme Court, that four judges take one view and three take another. Not unoften, the minority judgment appeals to the public as just.

The majority judgment prevails, but only because both opposing judgments cannot be made effective simultaneously. But the majority-minority procedure is more political than judicial. It seems odd, all the same, that justice should be decided by a majority vote, as in a legislature.

Further, it often happens that the judgment of the lower court is, on appeal, reversed by the next higher court. The appellate judgment may, in turn, be reversed by the next higher court, and so on. The judgment of the Supreme Court may be reversed if there were a still higher court to appeal to. To arrive at some finality, the number of appeals is limited, though the limitation is arbitrary. Now, which of the reversing judgments was just? If any of them was just, why was it reversed on appeal, instead of being confirmed?

What is the justification for appeals at all? Is it to be presumed that the judge of the Lower court is capable of a Lower quality of justice, than a judge of a higher court? Since appeals cost money and take time, most losers in the lower court have to be content with the presumably lower quality of justice, which seems unjust to them. Since the results of appeals are unpredictable, they become a speculation, often ruinous to the clients concerned, and take long for the final result, justifying the criticism that “justice delayed is justice denied.” The only individual who stands to gain anyway is the lawyer.

The present system is like a pyramid. The great majority of litigants, who are poor and cannot afford to appeal, get the lowest quality of justice from the more numerous lower courts at the bottom. Higher and higher justice is available to fewer and fewer litigants, who are rich and richer, while the richest, who are fewest, get the highest justice, as it were.

The system seems to be essentially unjust. Justice must be justice, and not a hierarchy. Nor should it vary with the purse of the litigant. Nor should justice be determined by majority votes. If justice be graded, the poorest should have access to the highest grade. There should be democracy in justice: equal justice for all by the best judges available. There should be no need for appeals, much less speculation in appeals. Nor should justice be a source of revenue to the State.

If appeals are justified and be permitted as second best alternative, there may be just one appeal from a single first judge to a panel of two appellate judges, or from a bench of two judges to a single appellate judge. If the three do not agree, the judgment of any two might prevail. This reform is likely to expedite justice and reduce speculative appeals and ruinous costs to the parties.

Law is a means to justice. Even as language is a means to education and not education itself, so law is the means to justice and not justice itself. Judges interpret law to give justice, even as the engineer manipulates the regulators to give water for irrigation. Justice ante-dates law. Even now in the most law-ridden societies, more disputes are settled and justice rendered without recourse to law and the law courts, and by commonsense, by conciliation and arbitration, and good offices of third parties with no law degrees and no experience of law courts. Apart from such informal dispensation of justice, village Panchayats or councils dispense formal justice which is statutorily recognized. In the more sophisticated ‘higher’ courts, there is reason to believe that very often justice is subordinated to law, substance to procedure, commonsense to technicalities. Instead of procedural law being subordinated to substantive justice, it often prevails over, and defeats, justice.

A few incidents may be mentioned to illustrate the point. On one occasion, a judge of a High Court, a judge of a district court and a district magistrate agreed in saying that a judge sometimes invited the parties to a dispute to his chamber and assured them that it was not the court and asked them to tell the truth! And got it! This was confirmed on a subsequent occasion by a retired Chief Justice of the Supreme Court, two judges of the same Court in office and the Dean of a Law School!

It is shocking to a layman that a judge had to assure the parties that his chamber was not the court and then invite them to tell the truth, while it is in the court that the oath to “speak the truth, the whole truth and nothing but the truth” is administered! It would seem that law is administered in the court, and justice in the chamber! It would seem that the court has become more an arena for forensic duels between the lawyers representing the parties to a dispute with a view to win, rather than a place where justice is sought and rendered. Few take the oath seriously; coaching of witnesses to give false evidence is pretty common. The court, with its oaths and procedure and lawyers, seems to be the last place to discover justice. It may secure the rule of law but not necessarily of justice.

This unfortunate situation seems to be due very largely to lawyers and to judges who rose to the bench from the bar. Though the procedural law permits the parties to a dispute to plead their cases in person, it is rarely availed of. Most often the parties engage professional lawyers to argue their cases before the judges. In some cases, when a party engages no lawyer because of poverty or other cause, the judge assigns him a lawyer.

The lawyer is designated an “officer of the court” to assist the judge to arrive at the truth and render justice. But he is not a civil servant like the judge and is not paid by the State. Instead he is paid by his client and is expected to do his best to win for him. In so far as he is an officer of the court, like the judge, his approach should be judicial, but, as the advocate of his client, it is partisan. Rarely, if ever, does a lawyer take his duty as an officer of the court seriously, and most often he is the advocate of his client. One of the most eminent lawyers in South India discovered, to his dismay, that there was a binding decision of the British Privy Council adverse to him in a case he was defending in the High Court. His opposite lawyer had not, however, spotted it and brought it to the notice of the presiding judges. He was in a dilemma; should he tell and lose his case, or not tell and perchance win? He sought advice. A few friends pointed out that he was an officer of the court and should tell; while most others pointed out that he was the advocate of his client and was paid by him to win, and should, therefore, not tell. After much agonising introspection, he told. The judges were surprised and the lawyers were stunned. When the judges recovered their judicial composure, they paid a high tribute to him for having acted as an “officer of the court”–a rare phenomenon! It is extremely difficult for a lawyer to reconcile his duty to justice with his duty to his client. Most often the latter prevails.

Generally lawyers enquire into the merits of a case, if only to decide on the strategy to adopt in the court to win for the client. And very often they defend cases which they know to be false. They advise their guilty client to plead “not guilty”, and defend him on that basis and take the chance of winning and often win. A most clever British lawyer in India secured the acquittal of a man who, he knew, was guilty of murder, but declined to shake hands with the murderer after acquittal! As a lawyer, he defended the murderer; as a gentleman, he refused to shake hands with him! The late Sir P. S. Sivaswamy Aiyer, one of the most eminent lawyers, said: “I have known cases in which eminent advocates in the Madras Bar have had occasion to deplore the success of their advocacy from the point of view of justice, or from the public point of view, but laid the flattering unction to their souls that the responsibility had been solely with the judges.” (K. V. Krishnaswami Aiyar, Professional Conduct and Advocacy. 3rd Edition, 1953. p. 127)

A very eminent Indian lawyer related that he was asked to defend a man accused of murder who had engaged no lawyer. When approached for instructions, the accused truthfully admitted the crime. The lawyer, however, advised the accused to plead “not guilty” and defended him and left it to the prosecution to prove the guilt of the accused if it could. It was correct law and procedure, but it was not helping justice.

The contradiction is inherent in the profession, irrespective of the personality of the lawyers. They must make their living by defending their clients and winning, if possible, irrespective of justice, which is the function of the judge who is paid by the State. But it outrages the layman’s conscience when a lawyer wins a false case, and more so, when he glories in it! But it is unfair to expect a lawyer to prefer justice to his bread and butter.

It is doubtful if lawyers are needed in the interests of justice. In the first place, even now the parties are free to plead their causes personally before the judges, without the intervention of lawyers. Even today there are categories of cases–and they are increasing–in which lawyers are excluded, and judges are expected to do justice all the same. Indeed, such exclusion is defended in the interests of justice! In the ‘inquisitorial’ system, found in France and in most European countries, the judge is regarded as an investigator; it is his job to find out the facts for himself and then apply the law to them. In the course of his investigation, he can examine witnesses and take an active part in the proceedings. It seems best to universalise the system in preference to the ‘contest’ system of England, prevalent in India today.

If the presiding judge need, the assistance of ‘officers of the court’, it is better that he should be given the services of persons versed in law as his assistants, civil servants like himself who are paid by the State and are expected to apply a judicial approach to the case under investigation and render justice, and not of lawyers paid by the clients to urge partisan views with a view to win, even at the expense of justice. Lawyers rarely give assistance to the judge with judicial impartiality. Graduates in Jaw are better employed as judges and their assistants in the civil service than as lawyers seeking uncertain fortunes by gambling in law courts and valuing legal scores above justice, promoting speculative litigation and appeals, prolonging trials, wasting the time of the judges, ruining clients and putting the State to unnecessary expenditure and the public to needless taxation, and above all, defeating justice more often than not.

In so far as lawyers are permitted to advocate the cause of their clients, the evils listed above may be mitigated considerably if the Lawyers for the losing party is obliged to pay the costs of the lawyer of the winning party, even as the losing party has to pay the costs of the winning party. As it is, whatever happens to his clients, the lawyer is sure of his fees. If he is obliged to share the risk with his client, he may be more shy in promoting false and speculative litigation.

The current philosophy underlying criminal procedure is epitomised in the dictum: Let a hundred guilty men escape but let no single innocent man suffer. It seems to overlook the fact that there cannot be a single guilty person without at least one innocent person having suffered already, and to let a hundred guilty persons escape is to let at least a hundred innocent persons suffer. It may be law, but hardly justice. In the pursuit of this philosophy, the accused is deliberately and invariably advised to plead ‘not guilty’ and the onus is thrown on the prosecution to prove conclusively the guilt of the accused, and the benefit of every doubt is given to the accused, resulting often in the acquittal of the guilty, injury to the innocent and defeat of justice by law. It promotes the manufacture of extra evidence, more helpful than truthful.

In criminal cases, the State is the prosecutor on behalf of the public. Except in rare cases, it is not motivated by antipathy towards, or revenge against, the accused. Its legal advisers, as competent as the lawyers and the judges, have to satisfy themselves that there is a prima facie case and substantial evidence against the accused before launching the prosecution. It seems, therefore, that justice is better served if the judge gave greater credence to the evidence of the prosecution and gave it also the benefit of doubt. It seems desirable that the current philosophy should be radically modified to ensure that the guilty do not escape and the innocents suffer, and that substantial justice, which is all that is possible in this imperfect world, should be preferred to an unattainable absolute justice. There may still be occasional miscarriages of justice, but they are likely to be far fewer than at present.

The current law penalises perjury; but it is rarely invoked. Otherwise, the number of cases would be numerous. Both sides to a case, particularly a criminal case, cannot be true, and no judge can give judgment in favour of both. It is obvious that he discredited the evidence of the loser, presumably because it was false. Every piece of evidence from either side which the judge discarded as false and unreliable should be punishable for perjury. Greater resort to the penalty for perjury is likely to diminish it considerably.

The “rules, procedures and institutions” current in India today have not proved effective “to protect the freedom of the individual in the organised society.” They are defective and call for reform. Neither the defects nor the remedies have been dealt with here exhaustively or expertly for want of competence in the writer. But it seems to his lay mind that the reforms sketched here will be a decided improvement on the present situation and give substantial justice, which is all that any system can give, as absolute justice is unattainable in this imperfect world. No human institution can be perfect and rise above the level of the character and integrity of its operators. No improvement may, however, be spurned because it is less than perfect.

Back