Toward Better Justice as a System

I hailed a taxi. The driver asked me where I wanted to go. I said ‘Charminar!’ He said it would cost me 150 Rupees flat. I asked him to turn the meter on. He took me to my place. After getting down from the vehicle I checked the meter. But it was turned off. I never noticed it during the ride. I handed a Rupees 100 note saying that it would take care of the fare. But he reminded me that we had already entered into an agreement for Rs.150 and now I should not go back on the word.

The above is a typical legal situation we come across almost every day. The taxi driver's word is weighed against mine. Whether my silence to his proposition in the first place is equivalent to an agreement? But sitting in the vehicle for transport equals entering into an agreement according to law, for him to take me as a passenger and for me to pay the tariff. Alas, it remains a mute question about the preexisting bargain when the official meter is there.

Transaction like the above get resolved amicably or with certain amount of heated discussion, according to the circumstances and power equations as also the needs, practicality, common sense, and also the one-sided helplessness of the parties. Only in certain grave situations people tend to move courts to settle disputes. But what happens there is anybody’s guess.

Court’s adversarial justice is quite intriguing. In a typical judicial setting, if I say something, my adversary should dispute with me or my advocate in front of a judge. His or Her Majesty weighs the evidence for and against the claim, that is on the basis of evidence duly supported by arguments offered by both the parties before a judgment is delivered and it may be right or wrong to the parties or even common sense aspect in certain cases.

Who said Lady Justice is blind? She is merely blindfolded, supposedly not seeing a particular favorite among different camps. She tries to be unduly unbiased without ignoring the facts of the case. Again in law, facts are what are seen with the naked eye that is in the First Person and later as heard as hearsay (collected from witnesses) for the evidence. Facts can be circumstantial too, if no light or sound is available in the primary evidence. Thereafter whatever judgment given, the same has to be taken as just, unless the same is appealed against, if there is a provision for that either in the law or in the order.

Again justice needs to be specifically sought for, and/or prayed for - to be executed in favor of the applicant. The party presenting the case, or as presented before the court by way of warrant or otherwise, is a contestant, all because justice will only help those who seek/pursue it legally. It is also disheartening to note that justice favors only those who are vigilant and take some or other remedial action/s in their own way legally before the prescribed time lapses, that is in the earliest possible time as a prudent man in similar circumstances take normally.

Laxity in protecting oneself or one's interests will tantamount to weakening of one’s case before the court. While weighing justice in the balance, the judge sees the pros and cons and will consider the previous judgments by his predecessors in the similar cases, especially the ones by those who are one rung above (namely higher courts). The judge decides the applicability of law in one way or the other in the instant case while also looking for benchmarks or guiding beacons outside the enacted statutes/enacted laws.

Overriding all the above, there is always a sacrosanct constitution of the nation, the law of the land, torts and many other branches of law depending on the special circumstances and specializations of law in general.

Why I am presenting the above is to prove a point that justice is not what layman assumes as such, like it is shown in the films or as given by elderly patriarchs in the good old days.

So justice delivered through courts is not a straightforward solution without ambiguity, like an instant remedy (as in most cases one has to file another petition for execution). To dispense justice in the wholesale manner for the heterogeneous masses in democracies, justice of this kind is the only alternative possible. This way, about 90 percent of those guilty can go unpunished, yet it ensures no innocent persons are needlessly punished. That is perfectly democratic though not 100 percent efficient. I also believe that the present system is upholding such equity and fair play in India.

Talking of democracies, the rules are made by the ordinary people to govern themselves and also punish themselves, whether those rules are moral or immoral in common parlance. If the majority comes to power as a ruling party, the latter frames those laws for all, basing on the exigencies and morality existing in the times. Of course the lawmakers also consider the historicity of what justice used to be, and what complies with the current international covenants, etc. If there are any unpleasant factors in the above system of man-made laws, then natural justice has to develop, again naturally in the course of time.

All things considered, the courts are overburdened with cases, in tune with the growth of our population, wealth and complexities of relationships arising from diverse aspects of commercial, criminal and civil life. Even the wayside justice is handled by some functionaries in the crudest and complicated manner involving lots of costs and corruption, what with the graft and greed on the rise. Those who arrive at the doors of justice are a hassled lot, but smoothly brought there by the regulated system just keep them there, hanging in the corridors of justice waiting interminably, to be processed through the supposedly efficient justice handlers by way of adjournments and appeals to higher courts, and so on.

In the end the contestants will be duly ‘rewarded’ with sentences and decrees and verdicts and whatever - after some prolonged battles, but the verdict is mostly bereft of the original fruits of justice intended normally by the justice seekers.

Alternative systems arrived of late, after seeing all this rigmarole in huge backlogs of pending litigation. There are ways in conciliation and reconciliation involving parties concerned by putting their heads together to arrive at a simple, quick and easy solution in a via media method agreed upon mutually for a compromised adjudication. Courts and governments are coming forward to spearhead this alternate dispute redressal system to help justice in a great way and lessen the heartburn in the total litigation and thus promote peace.

In the end one may wonder what prompts those who come for reconciliation. Hadn’t better sense dawned on them beforehand, the litigation would not have started. Then we are humans to fight in any argument, as it is always normal in the parliaments. What instigates one to seek justice?

In the beginning of my analysis I talked about the taxi driver’s word against mine. Sometime it could be our mutual word against the whole world, I don't mean here the private law of contracts, against family customs or own conscience even. In all these, I wonder whether silence will tantamount to an agreement, which is a eternal question haunting the civil side of humanity. However, majority of general issues (namely disagreements among people in homes, market or workplaces) are normally resolved in no time, that too in a offhand manner. They don’t need any external intervention for settlement as the power equations in the society play the role.

Also, at work are things like exigencies, practical orientation, common sense, and helplessness of one party or inclination towards compromise to settle disputes automatically. But issues that involve commerce, execution of special skills and services to the special consumers and in such other grave circumstances people will be seeking courts. But what happens in the courts is the question that is already mentioned above. Hence, evolution of justice veered toward an alternative justice delivery mechanism that can bypass most of the complexities and attendant formalities rooted in the jurisprudence while at the same time trying to be just and moral.

From Alternate to Alternative Justice:

All the above discussion clearly prompts for spread of an Alternative Dispute Resolution (ADR) systems wherever possible in the most fields. Relevant to my above first example involving taxi driver, I suggest some mobile tribunals consisting of road users, transport authorities, drivers association, et al be established by the government to arbitrate/reconcile disputes between the auto drivers and non vocal (also non local) passengers, saving on the procedures of Evidence Acts from the statues and procedures or the customary canons.

Secondly, it is also appropriate to have a Medical Ombudsman/ arbitrator to resolve doctor- patient disputes in today’s healthcare when they have become so costly to be settled and complicated in assessment. The Ombudsman can be appointed from any professional association of relevance to bring objectivity and uniformity in settlements of compensation with all their skills and also to have the effected industry or department plan better on the risk amount of damages befalling in case of claims, to enable them plan ahead and stay in business and manage for the better care of the users/customers/patients.

Electricity departments have such forums headed by a judicial officer/civil servant, electricity engineer and consumer organization to deal in the cases relating to power.

Likewise Telecom needs an Ombudsman to settle disputes regarding return of Security Deposits and excess billing, etc. in the mobile phone transactions. The grievances redressal mechanism of an average establishments is always one sided though it professes otherwise in all the right words in the citizens’ charters and visions and mission statements.

When I acquiesce to be punished or rewarded mutually between our two parties that too within the bounds of the law, it is not for the government (including judiciary) to object to our deal as long as it is legal (if not immoral).

How to bind the user and provider:

Any service the citizen takes or acquires use of on a product, he will be bound by a contract at the entry itself allowing him or her to be covered and covenanted by a settlement feature with fewer hassles and strings in case of dispute. The cost of such possible future redressal is also included in the original cost. Thus the taxpaying general public will be spared of the burden of footing the bill on account of so many people on a variety of goods and services that the exchequer pays for on this account.

HIV/AIDS Bill has a provision for establishment Health Ombudsman in all districts to help curb AID discrimination as part of it to make about 2.5 million HIV/AIDS patients in India aware of their rights and status as well as preventive education to all towards safe practices to avoid the disease.

Commercial transactions have already gained ground in getting the matters arbitrated and reconciled with the introduction of arbitration clauses. An arbitrator is a better informed person in the matters of the parties doing business and can give better opinion than the generalist judges in the civil courts. Disputes can also be resolved in other ways like mediation and negotiation but there will be some bad aftertaste of vested interest or arm-twisting to the detriment of the interests of either party.

Consumer forums, brought in to lessen the burden of the civil courts from growing commercial litigation, have themselves become hardened on procedures and backlogs equally. Banks now have Ombudsman as also insurance companies. The alternative systems came up seeing the rigmarole of normal justice system, in the form of conciliation and reconciliation by both parties putting their heads together for a compromised adjudication of a matter lying in the courts. Here also the courts are aiding such causes to lessen their burden and promote peace at the same time with the support of overworked executive branch of the government.

In the end one wonders what makes those who come for reconciliation. Again, hadn’t better sense dawned on them before it all started? Then, we are all humans to fight for the sake of our argument, as it is always normal and seen as such among our representatives in our parliaments.

Evolving Justice toward easy execution:

So the Alternative Dispute Resolution should aim at getting the litigation less demanding on the parties, as also reduce the cost and spite on the collective psyche of the society by coming forward with better corrective steps like passing orders for the wrongdoers to undertake social service and counseling others similarly involved. Let us see justice prevails come what may, through its slow evolution in peace and harmony. Then let us also hope the times have come about 360 degrees to have a God man for the layman.

It is the spirit and not the form of law that keeps justice alive – Earl Warren.

01-Oct-2012

More by : Seshu Chamarty

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