Justice 038; society: Philosophy 038; practice

Discussion of judicial reforms has figured in public debates, but no concerted efforts or a coherent strategy has so far emerged. The complex findings of law commissions address many procedural issues. Justice Ministers, sometimes agile and well-intentioned, have predilections and pre-occupations of their own. Much wider debate and consensus is needed since it affects almost every segments of society.

So what does justice mean?

Conceptually, justice might mean some visions of society8217;s obligations to its members. But what8217;s the theory of justice? The theory of utilitarianism that held sway for a long time was based on the principle that it allows rights of some people to be sacrificed for the greater benefit of others as long as total happiness is increased.

An alternate view, however, comes from John Rawls8217; Theory of Justice: a just social contract would be that which we would choose if we did not know in advance about our financial situation, race, creed, and religion, state of health or any other aspect of our condition. The resulting vision is based on two principles of justice:

8226; Each person would have the most extensive system of rights and freedom, which can be accorded equally to everyone 8212; freedom of speech, action and democratic rights.

8226; The second principle is that economic and social inequalities are only justified if they benefit all of society, especially its most disadvantaged member.

This theory in turn has its own critics. Michael Sandel and communitarian critics suggest that ignoring the conditions of life will lead to skewed results if it overlooks gender and race.

Other comments from eminent philosophers such as Robert Nozick are also relevant. This view is that justice rests on three sets of rules: how property not possessed by anyone may be acquired; how possession can be transferred from one person to another, and third, what must be done to rectify injustices.

Practically, justice means the institutions that society has created to ensure that justice is done; whether judicial system is functioning, whether there is equal access; whether it is impartial. Also, whether it should be impartial 8212; this is a common goal of 8216;8216;justice8217;8217; systems, but not necessarily the only one.

In terms of our society, the contextual questions are:

8226; Is income inequality just; whether within or across segments?

8226; Is it just if some members have no access to infrastructure, education, health and others?

8226; What should society public and private do to combat these injustices?

One has to ask how to adopt the justice system to evolving realities. For example, what is the role of justice system in the investment climate, transfer of property, mergers and other transactions in the modern global economy? How is the traditional justice system in terms of family, village norms and inter-personal coflicts getting addressed as societies increasingly become more and more integrated?

As intellectually stimulating as abstract philosophy may be, in the end, the practice is what matters. There are several critical steps.

The over-burden of pendency in various Courts needs drastic reduction. The government unfortunately is the biggest litigant. Reducing government litigation involves assuring officers administering various Acts and Statutes that bonafide decision not exhausting all legal remedies and appellate process will be respected by the authorities. This involves trust and culture change.

Second, the current ratio between cases and judicial officers is absurdly low. A phased programme to substantially improve this ratio is critical.

The process of appointment of judges needs to be put on auto-pilot. The vacancy position in many Courts is alarming. Several procedural changes like adjournments, additional affidavits being filed etc., will speed up the process, as suggested in a recent Supreme Court ruling in the Salem Advocates Bar Association case.

Four, mechanisms for alternative dispute settlement, particularly commercial litigation, need greater credibility.

Finally, a holistic view on how to make our judicial system respond to the changing economic and social dynamics need to be addressed by a broad-based national commission.

Managing rapid economic changes while preserving social cohesiveness is predicated on our institutions adapting to these changes. Reversing neglect of judicial reforms deserves priority.

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