law is not always a restraining force. It has positive contents and there are human elements in administration of justice. It is heartening to note that a number of legislations like the Juvenile Justice Care and Protection Act, Dowry Prohibition Act, SC and ST (Prevention of Atrocities) Act, Protection of Civil Rights Act, Industrial Disputes Act and Protection of Women from Domestic Violence Act contain human elements and have been enacted for societal needs.
Being welfare legislations, they carry the social ethos designed to benefit particular sections of society. Matrimonial laws like the Hindu Marriage Act, Special Marriage Act, law relating to maintenance, alimony and the Family Courts Act contain requirements of conciliation for settlement of matrimonial discords at the first instance.
The legislative intent of the Family Court Act backed by its counselling system is to make an earnest endeavour and give a human touch while trying to put an end to misunderstanding between the spouses to possible extent. So far as theory of punishment is concerned, the swing now is more in favour of reformation of the offender which forms part of the sentencing process excepting serious offences. The object of punishment is rehabilitation and reintegration of the offender in the mainstream of social life and the judicial process has to satisfy this societal need.
In criminal justice system it is worthwhile to note that the Supreme Court has held that public hanging is ultra-vires of the constitution in the case of lachhma Devi versus Attorney General of India. The court also held in the case of Mithu versus State of Punjab that compulsory death sentence for murder committed by a life convict is unconstitutional. This has been struck down as violation of articles 14 and 21 of the constitution which is an example of judge-made law with human consideration of justice, conscience and fair play. Now the concept of “Plea bargaining” has been added to the Code of Criminal Procedure (CrPC) for settlement of criminal cases where punishment prescribed is below seven years by way of conferencing between the accused, victim, public prosecutor, investigating officer and the judge, provided the accused agrees to giving fair and reasonable compensation to the victim of crime. If he does so out of his free will, the accused would be let off with a lesser punishment. This is a changing dimension of criminal justice on humanitarian ground.
Grant of compensation for unjustified detention in custody by the Supreme Court in the case of Rudal Sa versus State of Bihar, compensation for torture and death in police custody in the case Sahali versus Delhi Police Commissioner and the case of Nilabati versus State of Orissa are new dimensions giving a healing touch to the victims of custodial violence. These are significant aspects of just-icing process. In the case of Sher Singh versus State of Punjab, the Apex Court commuted the death sentence on the ground of unjustified delay in the execution of order of hanging. The recent recommendations of the Malimath Committee to bring about reforms in the areas of criminal justice are based on human consideration, principle of natural justice and the concept of a fair trial.
The committee has suggested that henceforth in the criminal justice system, quest for truth shall be the function of the judge and the preamble of the code of criminal procedure should be changed accordingly. Regarding protection of the rights of arrested persons, the Supreme Court has held that immediately after arrest of a person, his friend, family and the local legal Service Authority has to be informed besides news about the arrest in the media. So, Articles 20, 21 and 22 of the constitution stand as sentinels to protect the interest of an accused facing a criminal charge as well as the interest of a detune under the Preventive Detention laws like National Security Act etc.
The Supreme Court has also directed the State for creation of a suitor’s fund for payment of cost imposed on a defeated party by the court who is economically weak. Hearing on the question of proposed punishment after conclusion of guilt of accused is mandatory according to Section 235 (2) of CrPC. The court has to take into consideration the antecedents, social status, financial condition and other extenuating factors before awarding sentence which are exercises on humanitarian grounds.
Significantly, some special statutes like the Family Court’s Act and Industrial Disputes Act provide inbuilt mechanisms for settlement of disputes by way of conciliation and mediation or through the instrumentality of lokAdalat by way of alternative dispute resolution (ADR) method in preference to conventional trial.
In the case of Visakha versus State of Rajasthan, the apex court laid down guidelines and directed the State to check sexual harassment of women at workplaces which is an example of judge-made law. Now a full-scale legislation has been enacted closely on the heels of these guidelines. In another case, the Supreme Court intervened for proper functioning of a municipality with a direction to remove public nuisance by the Executive Magistrate of the area. This exhibits another example how the judicial process is forging new tools for public benefit based on justice, conscience and fair play. The court has also taken a proactive role to ameliorate the life of bonded labourers and for their rehabilitation. The judgements in the PIl cases by the Supreme Court and High Courts are basically meant for the benefit of vulnerable groups of the society.
In some other cases, the Supreme Court has virtually expanded the ambit of the concept of “right to life” under Article 21 which includes right to live with dignity. The court emphasised that “right to life” is not restricted to mere physical survival or animal existence, but it means something more by which life is enjoyed and for a qualitative existence. Therefore right to speedy trial is implicit in the guarantee under Article 21. In another case, the Supreme Court showed concern for the liberty of the under-trial prisoners. The court said, “We fail to understand why our justice system has become so dehumanised that lawyers and judges do not feel a sense of revolt at caging people in jail for years without a trial.” Grant of bail to the accused pending investigation or trial is also based on humanitarian consideration. If the investigation is not complete or chargesheet is not filed within 120 days and 90 days in relation to an offence punishable with death or imprisonment for life or imprisonment for a term of less than 10 years as the case may be, from the date of arrest, the accused shall be released on bail which is mandatory and the court shall offer him bail. In the case of Hussainara Khatoon versus State of Bihar, the court for the first time directed for release of the undertrial prisoners on bail on easy terms of security without monetary consideration as they were languishing in jail custody for years without trial.
In conclusion, law is not divorced from morality. Systemic improvements in justice, conscience and fair play are the basic tenants which now greatly influence the decisions of both judicial and quasi-judicial authorities. Therefore, observance of principles of natural justice or “Audi-alter-am partum” is an inspiring feature in the just-icing process. law has become an instrument of social engineering and its object is social solidarity. Now, the State has to take affirmative action where there is violation of fundamental rights of a citizen.
Morris R Cohen in his autobiography A Dreamer’s Journey has said, “law deals with human affairs and it is impossible to legislate or make any judgement with regard to them without involving all sorts of assumptions or theories. The issue, therefore, is not between fixed laws on the one hand and social theories on the other, but between social theories unconsciously assumed and social theories carefully examined and scientifically studied. It is in the light of this dynamic character of the function of law that one has to consider the role of Judges in a democratic State”.
(The writer is former special judge CBI, Bhubaneswar and Professor of law, lal Bahadur Shashtri National Academy of Administration, Mussoorie)