A chaos is a state of lawlessness and is inevitable in any society if its members loose respect and fear of law. Every individual is then at liberty to behave autonomously in the name of individual freedom/independence/
If a system of governance is considered to be a stream, than Legislature and Judiciary constitute two banks of the stream, so that contained between its banks stream flows smoothly.
Between the two banks lie people and executives. In any society, politicians are primarily important not so much for their legislative function, as for their executive function. Legislature can be held responsible for laying down questionable laws. But to guard sanctity of established laws and to secure their implementation is solely the function of judiciary. Since in any conflict of interest judiciary is the final arbiter and therefore character of judiciary shall determine character of people in towns and villages. Hence in the event of general lawlessness or chaos in a society, it is essentially judiciary’s failure to discharge its function for whatever reasons.
It is only when judiciary fails to discharge its function and uphold sanctity of law that people and executive get an inspiration and opportunity to act arbitrarily. People’s experience with judiciary in the course of litigation often acts as determinant of their character. Failure to uphold sanctity of law means failure of system of governance and failure of justice which would mean truncated evolution of the society as a whole. Jungle Raj or Rule of the forest is inevitable under such circumstances. In a society with failed judiciary the only law that prevails over every other law is “Might is the right”. In a chaos, existence is a matter of perpetual struggle.
Judiciary perpetuates chaos actively as well as passively. Some of its ways and means are as under:-
Judiciary stubbornly refuses to evolve to discharge timely and affordable justice in a people friendly manner. Judges listen to litigants only when it is unavoidable and apply their mind only when unavoidable and that is generally at the time of final order. This means that even for the simplest of matters, one has to face a protracted trial lasting several years even when the dispute may be resolvable at the stage of framing of charges or issues, on the basis of material on record and may be a little persuasion of litigants. The only excuse given is that this is a court.
Judges generally do not critically examine their judgments on the touchstone of reasonableness and comprehensiveness. Therefore, either the personal opinion of the judge succeeds or the better advocate succeeds. This is more likely to happen when a judge is empowered to exercise his discretion under the law or arguments advanced from both sides are incapable of being literally and mathematically-
Judiciary routinely fails to discharge its supervisory role in administration of criminal law machinery under the pretext of not interfering with investigations, effectively giving rise to rule of police instead of rule of law. Once an accused, all the human rights of the accused are in a state of suspended animation until proven innocent after a protracted trial. All the deficiencies in police investigation are just ignored.
In the name of reducing litigation, judiciary routinely promotes compromises contrary to law. Law requires that compromises must be legal and valid. This gives the strong every opportunity to prevail over the will of the weak and the sufferer.
Selective enforcement of law on one or the other pretext.
Judges often assume robes of an advocate in defending their judgments presumably delivered as speaking orders.
Justice can’t be expected to be awarded, it has to be extracted. It requires an advocate of skill and standing to secure justice for oneself. A litigant, howsoever well informed about facts and law of his case is miserably dependent on his advocate, for advocate is the only one who knows how to extract justice for his clients.
Judicial orders during trial are often passed as a matter of routine rather than after due consideration of merits of the case and the applicable law. At times even objectivity and rationality is not kept and subjective justifications are advanced in lieu of speaking orders.
Illegal and contradictory orders are passed in breach of merits of the case and law, advancing such interpretation of law and justification to which no sane person in the street would agree.
Quite often judges have a propensity to decide those issues which they are otherwise incompetent to decide such as a judge in USA decided about merits of Darwin’s Theory of Evolution which 150 years of scientific debate have not been able to decide.
Often imaginary considerations and unfounded apprehensions guide their judgment. In one case before the apex court I was verbally asked to forget about the law and previous judgments of the apex court.
In any society, judiciary is the ultimate authority in conflict resolution in accordance with law and in this capacity judiciary is the custodian of law, system and justice. In the event of its failure in discharging its designated function, chaos is inevitable.
To do justice to its designated function, judiciary should aim at conflict resolution in accordance with law in a timely and affordable manner. Judiciary should not refrain from listening to common man and should attempt to deliver effective justice at the earliest in accordance with law. An understanding of law should expedite and not delay decision making.
Author: Dr Mahesh C. Jain is a practicing medical doctor has written the book “Encounter of Science with Philosophy – A synthetic view”. The book begins with first chapter devoted to scientifically valid concept of God and then explains cosmic phenomena right from origin of nature and universe up to origin of life and evolution of man. The book includes several chapters devoted to auxiliary concepts and social sciences as corollaries to the concept of God. This is the only book which deals with origin of nature and universe from null or Zero or nothing. The book contains two chapters devoted to law and justice respectively.