Justice According to Law with Reference to Concept of Justice in

Indian Legal System

JUSTICE ACCORDING TO LAW

WITH REFERENCE TO CONCEPT OF JUSTICE IN
INDIAN LEGAL SYSTEM

Submitted to :

Ms. Anukriti Mishra

Submitted by :

Shivanshu Bais
Semester - V, Section - B

Roll No. 152

Date of submission 16thAugust 2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY, UPARWARA POST,

ABHANPUR,
NEW RAIPUR - 493661 (C.G)

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 Justice According to Law with Reference to Concept of Justice in
Indian Legal System

ACKNOWLEDGEMENTS

First & foremost, I take this opportunity to thank Ms. Anukriti Mishra, Faculty, Jurisprudence,
Hidayatullah National Law University, for allotting me this challenging and enlightening topic to work
on. She has been very kind in mentoring me and providing inputs for this work, by way of suggestions
and by giving his precious time for discussions and providing me resource of his vast knowledge of the
subject which helped me to look at the topic in its very broad sense.

I would also like to thank my friends and classmates in the University, who have helped me with fruitful
suggestions about this work and were also a source for constant motivation and moral support hence
being a guiding force for me in making of this project.

Last, but not the least I thank the University Administration for equipping the University with such good
Library and IT lab.

My special thanks to library staff and IT staff for equipping me with the necessary books and data from
the website.

Shivanshu Bais

Roll No. - 152

Semester- V

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 Justice According to Law with Reference to Concept of Justice in
Indian Legal System

CERTIFICATE OF DECLARATION

I hereby declare that the project work entitled Justice According to Law with Reference to Concept

of Justice in Indian Legal System submitted to Hidayatullah National Law University, Raipur, is

record of an original work done by me under the guidance of Ms Anukriti Mishra, Faculty Jurisprudence,

Hidayatullah National Law University, Raipur.

Shivanshu Bais

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 Justice According to Law with Reference to Concept of Justice in
Indian Legal System

Contents
ACKNOWLEDGEMENTS ............................................................................................................ 2

CERTIFICATE OF DECLARATION ........................................................................................... 3

Introduction ..................................................................................................................................... 5

Research Methodology ..................................................................Error! Bookmark not defined.

Review Of Literature ................................................................................................................... 7

Scope of The Study ......................................................................................................................... 7

Objectives of the Study ................................................................................................................... 8

Methodology ................................................................................................................................... 8

Justice according to law .................................................................................................................. 9

SalmondJustice according to Law ............................................................................................ 10

Critical Analysis............................................................................................................................ 11

Advantages: ............................................................................................................................... 11

Applicability in Indian legal System............................................................................................. 13

Conclusion .................................................................................................................................... 16

BIBLIOGRAPHY ......................................................................................................................... 17

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 Justice According to Law with Reference to Concept of Justice in
Indian Legal System

INTRODUCTION

The term justice is as old as man. The minds of the masses, the oppressed, the down-trodden and
the slaves are yearning for justice. Justice is a legal, ethical and ontological term. It is a common
and living concept. The question of justice is a perennial one.
The primary aim of this paper is to examine some conceptions of justice. For a good
understanding of what justice means, a proper analysis and understanding of what it means from
the perspective of different schools and philosophicat periods (from classicial, medieval, modern
to contemporary periods) will be attempted. Though this may not be an exhaustive analysis of
the concept of justice, it will at least analyse some propositions about the concept.

The enterprise of the analysis and elucidation of the concept seems to me to be a very difficult
one beacuse of cluster of varying notions of it. Aristotle, an ancient Greek philosopher, saw the
ambiquity and the cluster of meanings associated with this concept. He says, Now it appears
that the words justice and injustice are ambiguous; but as the different senses covered by the
same name are very close to each other the equivocation passes unnoticed and is not
comparatively obvious as to where they are far apart1. It is really difficult to arrive at a universal
understanding of the concept. Justice talk is a talk about fairness in relation to human beings,
rights and liabilities. In other words it is a societal issue or question. In every society, people
have conflicting claims and interests. It is in the attempt to settle and reconcile these conflicting
claims and interests that the issue of justice arises.

Some major formulations of justice are based on formal equality. A considerable analysis of
justice is also based on considerable social ideals like merit, work, need, rank, legal entitlement
and others. Some see justice as synonymous with law or lawfulness or fairness. David Hume,
J.S. Mill and others contended that justice presupposes conflict of interests.2 They construe it as
being different from benevolence, charity and generosity because it presupposes pressing claims
and justifies them by rules and standards. Justice from this perspective arises from individuals
competing interests and claims. According to Edward Allen Kent, Justice seems to entail the
1
Aristotle Ethics cd. Betty Radice, (Pengui Books 1948), p. 172
2
Plato, Republic ed. Francis Macdonald Comford, (London, Oxford Univeristy press, 1941), p. 1.

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 Justice According to Law with Reference to Concept of Justice in
Indian Legal System
conflict of competing claims and not infrequently the clash of powerful social interest with the
right of individuals ensured from time to time in the mechanism of reason detate 3. The history
of philosophy, embracing ethics, politics and jurisprudence has shown that no particluar analysis
of justice seems to suffice without qualification and exceptions.

Philosophers age-long interest in the concept of justice and the attendant formiliations of the
concept does not mean that we human beings do not have our individual intuitive, a priori
knowledge of what justice is all about. However, philosophers interest could be accounted for
on the basis of their desire to explore and search for a universally consistent criterion or standard
of justice. For example, John Rawls theory of justice and welfarism are a reconstruction of
liberalism which has complete trust in man while democratic socialism is a reconstruction of
marxism which does not trust man, but regards him as a species which needs to be tamed and
controlled. It is the desire to set the criteria or standard of justice that led to the recent
formulations of what is called procedural justice. This consists in employing correct methods to
develop rules of conduct, to ascertain the facts of a particular case, or to devise a total
dispositive judgement4. In recent times, judicial procedure has undergone noteworthy reforms
in terms of the formulation of due process of lawin United States and other democracies. The
requirement of the process is that no one must be accused of violating a rule of behaviour
unless he could have ascertained the existence and meaning of the rule before he committed the
challenged acf5.

Salmond and Roscoe Pound have emphasized the importance of justice in their definitions of
law. They have defined law in terms of justice. According to Salmond, "Law may be defined as
the body of principles recognized and applied by the State in the administration of justice."
Roscoe Pound observes: "Law is the body of principles recognized or enforced by public and
regular tribunals in the administration of justice."

3
Edward Allen Kent, Law and Philosophy, Readings in Legal Philosophy (New York Meredith Corporation, 1970), p.
464.

4
Stanley, I. Benn Justice in The Encyclopaedia of Philosophy, Vol. 3 & 4, (New York Macmillan Publishing Co.
1967, p. 343.

5
Ibid., p. 343.

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 Justice According to Law with Reference to Concept of Justice in
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Review of Literature

Literature Review is the documentation of a comprehensive review of the published and

unpublished work from secondary sources of data in the areas of specific interest to the researcher.
It is an extensive survey of all available past studies relevant to the field of investigation. It gives
us knowledge about what others have found out in the related field of study and how they have
done so.

After an extensive survey of available past studies relevant to the field of investigation. It has been
tried to accumulate the knowledge about what others have found out in the related field of study
and how they have done so. They have helped immensely in gaining background knowledge of the
research topic, in identifying the concepts relating to it, potential relationships between them and
identifying appropriate methodology, research design, methods of measuring concepts and
techniques of analysis. And also in identifying data sources used by other researchers.

Thus, the following literature has been reviewed:

Prof. Dhyani S. N. , Jurisprudence & Indian Legal Theory, Ed. 4, Central Law Agency,

Allahabad

Mahajan V. D. , Jurisprudence & Legal Theory, Ed. 5 , Eastern Book Company,

Lucknow

N.V. Pranjepe, Sudies In Jurisprudence and Legal Theory

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 Justice According to Law with Reference to Concept of Justice in
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Scope of the Study

The paper intends to conceptually and critically analyse the term hard cases and their relevance in the
judicial evolution. It basically deals with the Indian Judiciary and the power conferred upon the judges
under Article 142 to exercise their discretion if and when needed. It doesnt attempt to go beyond India
except to study the evolution of the concept and deals with majorly Indian case laws to prove and draw
conclusions.

Objectives of the Study

The main objectives of the present study are as follow:

1. To study the concept of justice according to law.

2. To critically analyse the concept of justice according to law.
3. To examine the concept of justice in Indian Legal System

Methodology

The method of research adopted is analytical in nature. I have referred sources on the internet as well as a
few books on jurisprudence available in the university library besides adding my personal views and
knowledge of the topic. Books and other references as guided by the faculty of jurisprudence have been
primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have also been
referred.

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 Justice According to Law with Reference to Concept of Justice in
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Justice according to law

In modern times, what is given by the courts to the people is not what can really be called justice
but merely justice according to law. Judges are not legislators and it is not their duty to correct
the defective provisions of law. Their only function is to administer the law of the country. They
are not expected to ignore the law of the country. It is rightly said that "in the modem Slate, the
administration of justice according to law is commonly taken to imply recognition of fixed
rules.

A few illustrations may be given to show what we understand by justice according to law. A
creditor has to realise some money from a debtor. However, he files a suit after the lapse, of
three years. Equity may be on his side, but his suit must fail on account of the law of limitation
which demands that a suit must be filed within three years. Likewise, a person may have actually
committed a murder. He may confess his guiltbefore a police officer who is an honest man.
However, he does not make a confession before a magistrate. If he is convicted on the basis of
his confession before the police officer, his conviction has to be set aside as it is opposed to the
law of the country. Even if a guilty person escapes, judges are not bothered about it. They do not
play and are not expected to play the role of legislators. If law is defective, it is the duty of the
people to demand from their legislators to alter the same. However, so long as a particular law is
on the statute book, the same has to be enforced unmindful of the consequences.

Law may be blind and therefore justice becomes blind, but there is no help for it. Judges are
expected to give justice according to the law of the country and not according to what they
consider to be just under the circumstances. Thus justice according to law is based on the
conception that the judicial system of a country is required to dispense justice or decide matters
beased on the statutory law of the country only irrespective of the fact that it provides effective
justice or not. But in contemporary period it is seen that through a variety of process like judicial
activism, judicial review, PILs , etc judiciary has adopted a proactive role in justice dispensation
mechanism.

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 Justice According to Law with Reference to Concept of Justice in
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SalmondJustice according to Law

Salmond defined justice in terms of established legal rules and procedure. Justice as such cannot
be achieved without or outside the rules of law. In other words justice can be achieved only
within the four walls of law. According to Salmond justice cannot be established without law.
On the contrary Markby says justice can be administered without law. He says, 6'All that the
judge requires is authority to settle all disputes that come before him'. It means judges can decide
a dispute without law according to their hunches, discretion or whims irrespective of the merits
of the situation. What is necessary is authority vested in judges. However, this type of justice
cannot be described legal justicecall it executive justice or fiat or arbitrary justice like that of
Court of Star Chamber and Court of Equity in England and of Allaudin Khilzi or Jehangir or
Ranjit Singh of Punjab in India. Salmond, however, endeavours to make justice strictly
impersonal and certain leaving no chance for judges' whim or hunch. Accordingly justice
according to law is possible in a politically stable society where the people have established
political organs to achieve the desired ends of the community through law and law courts. The
administration of justice according to law, therefore, implies the recognition of fixed rules and
predetermined principles which are called laws. It further implies the exclusion of whims,
dictates and untrammelled discretion of judges. Justice according to law means that people
should be treated alike unless there is reason for treating them differently. It means all persons
are subject to the same law and legal procedure irrespective of their status or position. A varying
but similar concept is found in the British, U. S. and Indian Constitutions which provide the
concept of equality before law. In the Indian Constitution particularly in Articles 20, 21 and 31
the individuals' fundamental rights to person and property are secured against arbitrary executive
or legislative justice. In essence predetermined law and legal principles established for the
administration of justice through courts of law is a sine quo non of justice according to law.

Viewed from above aspect the existence of wide and absolute discretion in the administration of
justice and the absence of fixed law and procedure is a negation of the concept of justice
according to law. As such legal justice was wanting in England during the times of Tudors when
the Court of High Commission and the Court of Star Chamber had absolute discretion to
administer justice without law.
6
Quoted by Patterson, Jurisprudence, 105 (1954)
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 Justice According to Law with Reference to Concept of Justice in
Indian Legal System

Critical Analysis

Advantages:
Salmond has brought out clearly the advantages of justice according to law. According to him it
ensures uniformly and certainty in the administration of justice. It also guarantee impartially
against individual errors. Professor Pound has listed six advantages of the administration of
justice according to law. These are :7

(1) Law makes it possible to predict the course w ic t e administration of justice will take ;

(2) law secures against errors o individual judgement (i.e. of the individual judge);

(3) law secures against improper motive on the part of those who administer justice ;

(4) law provides the magistrate with standards in which ethical ideas of the community are
formulated ;

(5) law gives the magistrate the benefit of all the experience of his predecessors ;

(6) law prevents sacrifice of ultimate interest, social and individual, to the more obvious and
pressing but less weighty immediate interests'.

Dean Pound further supports the idea of justice according to law on the ground of its being
successfully excluding the personal equation on all matters affecting life, liberty and property.
He says 'the most striking characteristic of United States Public Law of the last century was the
completeness with which the executive action was tied down have legal liability and judicial
review .

Disadvantages:

However, there are some disadvantages of judicial justice.

1. Justice according to law is cumbersome and expensive with no corresponding advantage

in terms of content or public need.

7
A.D.M. Jabalpur v. S. Shukla, AIR 1976 SC 1207
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Justice According to Law with Reference to Concept of Justice in
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2. Judicial justice is not the expression of popular will or feeling. It provides very slow and
dilatory processes for quick peaceful social reform and change.
3. In modern welfare States it has been amply demonstrated that the existing law courts are
neither able nor willing to deliver social good to meet the general wants and expectations
of the community. They do not look around while deciding disputes and bog-down on
rules of procedure and defeat the real object of modern progressive social and economic
legislation. In India the Supreme Court itself took a similar attitude which has
necessitated in frequent constitutional amendments.

4. It brings conservatism, formalism and rigidity in law. Law instead of being an instrument
of social progress becomes a brake in the wheels of social development and
transformation. It fails to cover new challenges or demands and meet new emerging
situations.
5. The advent of modern administrative law and administrative tribunals for resolving
recurring conflicts in society is a proof of the failure of the law courts in satisfying the
urgent needs of the community. Justice delayed is justice denied and the cumbersome
rules of procedure and evidence which governs ordinary proceedings of ordinary law
courts have shaken the faith of social reformers and leaders.
6. Judges are sometimes too narrow or pedantic and are slow in responding to new changes
and environment and hence justice according to law is too untimely, too rigid and too
inadequate.

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 Justice According to Law with Reference to Concept of Justice in
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Applicability in Indian legal System

In ancient India law and Dharma were analogous concepts consistent with truth, morality and
justice. The ideal and object of law was to promote justice. The law was not created or made by
the King but he himself was under law and governed by law or Dharma'. In the post-
constitutional era the concept of justice according to law is enshrined in our democratic
egalitarian polity and in the Constitution itself. Even prior to the Constitution, the alien rulers too
followed the concept of rule of law and justice according to law. With the establishment of the
supremacy of the Constitution incorporating basic and invaluable fundamental rights of the
citizens along with limitations on the powers of the Parliament, government and lower tribunals
the Supreme Court and the High Courts have the power to review judicially the acts of these
bodies with a view to establish the rule of law and administer justice according to law. That is
why we say that in a government by-laws and not of men the executive branch bears the grave
responsibility of upholding8- and obeying the judicial verdicts and orders. If the Constitution is
the cornerstone of the Nation9 justice10 is its signature tune and the Supreme Court is the living
voice of the Constitution. This is the will of the people expressed in the Preamble, Parts III and
IV of the Constitution which holds the value of justice, rule of law and supremacy of the
Constitution aloft. Likewise in the Preamble 'justice, social economic and political is given the
first place which the courts ensure executive free from discrimination and tyranny. In this
context the Court observed:11

"Under the Constitution the ultimate authority is given to the Courts to restrain all exercise of
absolute and arbitrary power, not only by the executive and by officials and lesser tribunals but
also by the legislatures and even by Parliament itself."

The notion of justice according to law, the rule of law and independence of the judiciary are
different sides of the same coin envisaging the philosophy of equality before law and that law is
no respecter of the person however high he is.

8
Mohd. Aslam v. Union of India, AIR 1995 SC 548
9
As described by Gramville Austin
10
State of Haryana v. Darshna Devi, AIR 1979 SC 855
11
J.K. Iron & Steel Co. v. Mazdoor Union, AIR 1956 SC 231
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 Justice According to Law with Reference to Concept of Justice in
Indian Legal System
The Supreme Court has observed:12

"It is our constitutional duty which requires us to make this order, to uphold the majesty of law
and justify the confidence of the people, that no one in this country is above the law and
governance is not of men but of the rule of law'. It is unfortunate that this action has to be taken
against a person who happens to be the Speaker of a Legislative Assembly, but that does not
permit us to apply the law differently to him when he has wilfully and continuously driven the
court to this course. We must remind ourselves that the rule of law permits no one to claim to be
above the law and it means be you ever so high the law is above you It was said long back : 'to
seek to be wiser than the law, is forbidden by law'."

In effect justice according to law symbolises rule of law and not rule of men. It is no respecter
of despotic justice which is generally described executive justice or even of legislative justice
which is extra- judicial, political tempered by personal considerations. This is evident from the
verdict of Justice Jagmohanlal Sinha of Allahabad High Court in the Indira Gandhi Election case
which was declared void but validated by Parliament through a constitutional amendment in
1975. This amendment was struck13 by the Supreme Court as contrary to basic structure of the
Constitution. The Court remarked 'it was a case of Parliament assuming the role of a Judge and
performing judicial function by means of legislation in relation to election petition filed by Raj
Narain against Indira Gandhi.'

As regards the executive discretion which was exercised without any procedure that does not
meet the test of justness, fairness and reasonableness is contrary to Articles 14 and 16 of the
Constitution. The Court observed14 : In a system governed by rule of law, discretion, when
conferred upon executive authorities, must be confined within defined limits. The rule of law
from this point of view means that decision should be made by application of known principles
and rules and, in general, such decision should be predictable and the citizen should know where
he is.' The Supreme Court has further reiterated15 that, for a Rule of Law to prevail, judicial
independence is of prime necessity.... An independent, non-political judiciary is crucial to the
sustenance of our chosen political system.. and the great values of liberty and equality are all

12
I. Manilal Singh v. H. Borobubu, AIR 1994 SC 505
13
Smt. Indira Gandhi v. Raj Narain, AIR 1975 SC 2299
14
Delhi Transport Corpn. V. D.T.C. Mazdoor Union, AIR 1991 SC 101
15
Subhash Sharma v. Union of India, AIR 1991 SC 631
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 Justice According to Law with Reference to Concept of Justice in
Indian Legal System
16
dependent on the tone of judiciary.' This tone of the Court is evident in Bhajan Lal when
Justice Ratnavel Pandian prefaced his remarks as The King is under no man but under God and
the law was the reply of Chief Justice of England, Sir Edward Coke when James I once declared
Then I am to be under the law. It is treason to affirm it.' We would like to quote and requote
those words of Sir Edward Coke at the threshold and remarked Justice Pandian in our democratic
polity under the Constitution based on the concept of Rule of Law which we have adopted and
given to ourselves and which serves as an aorta in the anatomy of our democratic system THE
LAW IS SUPREME'. And further the law or Constitution is what the Supreme Court declares or
says it is. It only envisages the supremacy of rule of law and justice according to law which
strengthens the Constitution, the Legislature and democratic way of life. This view is once again
upheld-17 by the apex Court as Chief Justice Venkatachaliah observed18:

"The historic phrase a government of laws and not of men epitomizes the distinguishing
character of our political societyCompliance with decisions of this Court, as the
constitutional organ of the supreme law of the land, has often throughout our history, depended
on active support by State and local authorities. It presupposes such support. To withhold it and
indeed to use political power to try to paralyse the supreme law, precludes the maintenance of
our federal system as we have known and cherished it for one hundred and seventy years."

16
State of Haryana v. Bhajan Lal, AIR 1992 SC 604
17
Mohd. Aslam v. Union of India, AIR 1995 SC 548
18
Ibid., 552.
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 Justice According to Law with Reference to Concept of Justice in
Indian Legal System

Conclusion

Of course, justice according to law has advantages and disadvantages together. The question is
how far this concept can help society in improving the social and economic condition of its
people. In highly developed societies of United States of America and England this concept has
almost been accepted as the sheet anchor of social change and ideological basis for counter-
acting the totalitarian tendencies from the Communist world. Perhaps in these countries this
concept has established its deep roots in the political ideals and social values due to mature
public opinion, representative system of government and competitive way of life. However, in
the developing countries of Africa, Asia including India in the face of steep poverty, mass
unemployment, illiteracy and the absence of democratic traditions the governments in these
countries are faced immediately with the problems of planning, social justice and economic
development that ideal like justice according to law appear more as a shadow or dogma than a
constructive functional ideal for resolving human conflicts. Some government in these countries
may even like to secure justice to its people even without law for they are prepared to follow the
old maxim that for forms of government let fools quarrel. A good government is one which
governs best. However, in the Indian context19 an attempt is underway for reconciling legal
justice and social goals of the Indian community within the framework of the Constitution which
embodies both the concepts of justice according to law and the ideal of socialism, welfare state
and social equality including human rights especially of women, children, the aged, the disabled,
etc.

19
Ahmedabad Municipal Corpn. V. Nawab Khan Gulab Khan, AIR 1996 SC 152
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 Justice According to Law with Reference to Concept of Justice in
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BIBLIOGRAPHY

Prof. Dhyani S. N. , Jurisprudence & Indian Legal Theory, Ed. 4, Central Law Agency, Allahabad

Mahajan V. D. , Jurisprudence & Legal Theory, Ed. 5 , Eastern Book Company, Lucknow

N.V. Pranjepe, Sudies In Jurisprudence and Legal Theory

17