Law without Justice is a wound without cure

ABSTRACT

We often come across the saying that with needs, come inventions so is the case with law. It evolved when conflicts arose in the society so that balancing of interests could be friction-less. Although serving justice was not the only purpose of law however, over a period of time it got associated with justice so closely that it gave rise to the popular narrative that a law which is not capable of serving justice is no law. Thus, much of it’s meaning now rests in its capability of serving justice. The article disscuses the significance of law as a means to achieve justice and will specially focus upon the non-implementation of the Directive Principles of State Policy which forced the Indian judiciary to take an active role towards their realization by shaping them into fundamental rights although it wasn’t it job but that of the legislators to do so.

INTRODUCTION

The terms “law” and “justice” are often used interchangeably, however, both the terms have different meanings as well as significance. “Law” on one hand could be officially promulgated rules of conduct, backed by state-enforced penalties and “Justice” on the other is rendering to each person what he or she deserves.[1]Thus, both could not be equated although there exists a close relationship between law and justice and the main thing which connects them is the very foundation of law which originated to serve justice.[2] But, by virtue of this popular narrative only it happens that any law which fails to serve justice falls into poor light.Many great jurists have defined law in terms of justice. Salmond has emphasized upon the importance of justice by defining  law as “the body of principles recognized and applied by the State in the administration of justice”.[3]Therefore, it could be said that justice serving which was one purpose of law has gradually turned into a scale to measure the validity of a law. In this article the author will put special focus on the importance of justice as well as the non-implementation of some of the Directive Principles of State Policy which is an instrument for economic and social justice.

IMPORTANCE OF JUSTICE

Justice is of central importance to political theory. In defending or opposing laws, policies, decisions and actions of government, appeals are made in the name of justice.[4]In the words of Prof. Sidgwick, “in determining a nation’s rank in political civilisation, no test is more decisive than the degree in which justice as defined by law is actually realised in its judicial administration. Lord Bryce wrote that, “there is no better test of excellence of a government that the efficiency of its judicial system.[5] George Washington said: “Administration of justice is the firmest pillar of government.[6]

The Constitution of India also gives first priority to securing of social, economic and political justice for all its people.[7]The spirit represented in the Preamble is enshrined in the chapter of Fundamental Rights and Directive Principles of State Policy as well with a purpose to promote social welfare. [8] Furthermore, the word Socialist was introduced in the preamble by the 42nd Amendment to the Constitution strengthening the ethos of social and economies justice.[9]Thus administration of justice is the most essential function of a State.

ROLE OF INDIAN JUDICIARY IN DISPENSING SOCIAL JUSTICE- DIRECTIVE PRINCIPLES VIS-À-VIS FUNDAMENTAL RIGHTS

As discussed above, no law can be fruitful unless it is given effect to benefit the society for whom it has been formulated. However, until now there are various constitutional aspirations in the form of Directive Principles of State Policy which remain unfulfilled till date.

In the Constituent Assembly debates there was detailed discussion on fundamental rights and directive principles and various prominent personalities expressed a view that fundamental rights and directive principles both are important. Prof. K. T. Shah expressed his view[10]that directive principles must be made justiciable and the State must be obliged to implement social and economic rights of society. He felt that directive principles must be enforceable in court. If it is kept as non-justiciable then it would become as piece ornament.

Despite all this Directive Principles were made unenforceable probably because India did not possess the adequate resources to enforce all the Directive Principles of State Policy, and thus, it was left to the future Governments to follow them voluntarily.

Thus, whenever the issue of the Directive Principles of State Policy has come up before the Indian judiciary ithas stressed upon the importance of them time and again.[11] Moreover, it took an active role in shaping Directive Principles of State Policy as Fundamental Rights in order to get them enforced even when the same isn’t its job but that of the legislators. Some significant examples in this regard include, the case of Olga Tellis v. Bombay Municipal Corporation,[12] where the divide between policy and principle got blurred when the Court read a Directive Principle into a Fundamental Right by declaring the “right to livelihood as an important facet of right to life because no person can live without the means of livelihood.” Another example where special importance was attached to the Directive Principles vis-a vis the Fundamental Rights was in the case of Unni Krishnan v. State of A.P[13] where  the court following Article 41[14] and 45[15]held that every child /citizen of the country has the right to free education until he completes the age of fourteen years.

However, if we consider the implementation of the Directive Principles of State Policy in today’s context, we can find that still government is facing financial problems in implementation of various directive principles in India. For example, the Right to Education, right to work, right to health requires more attention but yet not fully implemented even after 70 years since the adoption of the Constitution. Thus, the ideals of a welfare state remained to be an unfulfilled principle.[16]

CONCLUSION

Keeping in mind the primary purpose of law i.e. delivering justice to the society, it is hereby concluded that any law which does not have a justice serving aspect could not stand as a good law for much time. Not only this but any law even if it is made for the societal good but is not implemented properly is nothing more than a black letter law confined to paper. Similar is the case of Directive Principles as discussed by the author which were adopted with the primary purposeof establishing a welfare state but due to non-availability of resources were made non-justiciable at the time when the Constitution was adopted. However, even after 70 years of its adoption much of these principles remains to nothing but a dead letter as it only guides the exercise of legislative power but do not control it.[17]

Apart from this, it is found that the relationship between the Directive Principles of State Policy and Fundamental Rights has caused difficulty and the judicial attitude gradually transformed towards this over a period of time when it started reading these principles into Fundamental Rights in order to implement them after realizing that the law-making body is keeping a blind eye towards the same. This also tells us that law must not only be brought but should also be realized and this will happen only when it will be implemented to achieve its full objective which is in the form of justice as “law without justice is a wound without cure”.

REFERENCES

Books

  • M P Jain The Indian Constitutional Law 1058 (8th ed. 2018).
  • V.D. Mahajan, Jurisprudence and Legal Theory, 26, (Eastern Book Company, 5th ed., 2017).

Statutes

  • The Constitution of India,1950
  • 142nd Constitutional Amendment Act, 1976.

Cases

  • Olga Tellis and Ors v. Bombay Municipal Corporation and Ors, (1985) SCC 3 545.
  • Unni Krishnan v. State of A.P, (1993) SCC 645.

Online Journals

  • Ahmad, S. Waseem, and M. Ashraf Ali. “SOCIAL JUSTICE AND THE CONSTITUTION OF INDIA.” The Indian Journal of Political Science, vol. 67, no. 4, 2006, pp. 767–782. JSTOR, www.jstor.org/stable/41856262.
  • Anthony D’Amato, On the Connection Between Law and Justice, North western University School of Law, a-damato@law.northwestern.edu, (2011).

Web Sources


[1]Anthony D’Amato, On the Connection Between Law and Justice,North western University School of Law, a-damato@law.northwestern.edu, (2011).

[2]Id.

[3] V.D. Mahajan, Jurisprudence and Legal Theory, 26 (Eastern Book Company, 5th ed., 2017).

[4]www.yourarticlelibrary.com, Last Retrieved on 21/05/2020.

[5]V.D. Mahajan, Jurisprudence and Legal Theory, 55 (Eastern Book Company, 5th ed., 2017).

[6]Id.

[7] Preamble, The Constitution of India, 1950.

[8]Ahmad, S. Waseem, and M. Ashraf Ali. “SOCIAL JUSTICE AND THE CONSTITUTION OF INDIA.” The Indian Journal of Political Science, vol. 67, no. 4, 2006, pp. 767–782. JSTOR, http://www.jstor.org/stable/41856262. Accessed 22 May 2020.

[9] 42nd Constitutional Amendment Act, 1976.

[10] Constituent Assembly Debates.

[11] http://logos.nationalinterest.in/2014/07/constituent-assembly-debate-on-directive-principles-of-statepolicy/

[12] Olga Tellis and Ors v. Bombay Municipal Corporation and Ors, (1985) SCC 3 545. 

[13]Unni Krishnan v. State of A.P, (1993) SCC 645.

[14] Art. 41, The Constitution of India, 1950.

[15] Art. 45, The Constitution of India, 1950.

[16] shodhganga.inflibnet.ac.in, Last Retrieved on 22/05/20.

[17] Justice JastiChelameswar, Justice Dema Seshadri Naidu, MP Jain, Indian Constitutional Law, 1469 (8th ed., 2018).

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