The Constitution of India has accepted the citizen to be in the centre-stage of the Constitutional system and focal point of all developments. This is reflected in various provisions, particularly in Chapters-III and IV containing a Charter of Fundamental Rights of citizens and Directive Principles of State Policy.
They are complementary and coexistent. The citizen’s fundamental duties in part IV-A are given primacy making him conscious of his corresponding obligations to the State.
Free legal services to the poor, needy and downtrodden at the State’s cost has become part of the fundamental rights under the mandate of Article-39-A read with Article-14 of the Constitution. The Supreme Court has emphasised on this aspect in a number of judgments.
There was public outcry that the poorer sections are priced out of justice market and justice was only meant for dominant groups, but this does not hold good today due to availability of free legal services and equal protection to the laws guaranteed under the Constitution.
For resolution of disputes, cases are now settled by a new system called Alternative Dispute Resolution (ADR) besides traditional courts and other adjudicatory forums.
Through the lok Adalats by way of conciliation and on reference to arbitration, different kinds of cases are being settled outside the court. The Arbitration and Conciliation Act, 1996 has consolidated the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral award.
Mediation is the main thrust of the new arbitration law. The new Act even enables a party for withdrawing a dispute from courts and avail opportunity to settle it with the help of domestic tribunals.
Besides, the newly added Sec.-89 in the Civil Procedure Code has also provided resolution of disputes through arbitration, conciliation and lok Adalat. The law permits to adjudicate the cases in respect of the rights, liabilities and interest of the parties pending in any court through the ADR mechanism.
The legal Services Authorities Act, 1987 is also given statutory status for settlement of disputes by lok Adalats. A lok Adalat’s decision is treated as a decree of civil court from where no appeal lies. This has opened a new vista for the people’s participation and involvement in the process of justice delivery system which is called “participatory” or “distributive” justice.
There are self-contained provisions in the Hindu Marriage Act, 1955 in Sec-23 which provides settlement of disputes at first instance through conciliation, and it further stipulates that court should make an earnest endeavour and even adjourn the proceeding for a reasonable length of time to arrive at a fair settlement. Similarly, Section-12, Sub-Sec.(2) of the Industrial Disputes Act,19947 provides conciliation of disputes by the conciliation officer which is a statutory direction. The Family Courts Act, in Section-9, also has provision for settlement of matrimonial disputes by conciliation.
The lSA Act has made provision for establishment of permanent and continuous lok Adalats for exercising jurisdiction in respect of public utility services like electric supply, sanitation, healthcare, banking and insurance sectors.
In the event of failure of disposal of such disputes in the lok Adalat, the original court shall proceed to decide the dispute on its own merit. Rules (3) and (2) of Order 32A of CPC even permits that if in any suit at any stage it appears to the civil court that there is reasonable possibility of a settlement between the parties, the court may adjourn such proceeding as it thinks proper to enable the parties to attempt an amicable settlement for speedy disposal of disputes.
There are also new provisions for settlement of disputes by arbitration or through lok Adalat besides judicial settlement in an ordinary way. The Public Interest litigation (PIl) has entered into the legal system since 1970. This litigation is intended to vindicate public interest where fundamental and other legal rights of the poor, ignorant and socially and economically disadvantageous people are not able to seek legal redress but are otherwise entitled to espouse their cause.
It is, in fact, a collaborative effort of the party and the court so as to secure justice for the weaker sections. Initially, PIl was invoked in cases connected with relief for the poor sections and in areas where there was violation of human rights as per norms prescribed in Article 21 concerning citizen’s life and liberty, but with the passage of time PIls have been entertained by the High Courts and Supreme Court in exercise of their writ jurisdiction touching upon other spheres of state activities which are in the domain of executive and legislature.
The Supreme Court in a number of decisions had held that “life” explained in Art-21 does not mean mere physical existence, but it includes within its broad matrix life for a qualitative existence which includes all the finer graces of human civilisation.
So, any administrative decision or legislation which would deprive a citizen of his fundamental right to life and liberty must answer the test of reasonableness. In other words, a decision or action of the administrative authority or a legislation, ordinance, rule, etc, must be just, fair and reasonable.
This concept found its best expression in the case of Maneka Gandhi in her passport impounding case where the principle of natural justice was amplified for the first time and the Supreme Court took a pragmatic view and humanist approach.
In this regard, the Indian Supreme Court has virtually imported the American doctrine of due process of law and principles of natural justice or Audi alteram partem bringing them within the ambit of the justice delivery system.
Judicial review of legislation and administrative action now holds the field in a big way and the Supreme Court has retrieved its lost territory after the AK Gopalan case. It is significant to mention that judicial review has now pervades over the entire Constitutional system.
The apex court in the Keshabananda Bharati case, popularly known as fundamental rights case, held that Parliament can’t amend the basic structure/features of the Constitution, and this a landmark judgment to jealously safeguard the rights of the citizens and establish an egalitarian social order based on rule of law.
Despite the fact that the burden of proof has been shifted to the accused to prove his innocence in some special laws like Prevention of Corruption Act, Foreign Exchange Management Act, Railway Property (Unlawful Possession) Act and Protection of Civil Right Act yet the court has carved out that action taken under those Acts must be based on justice, fair play and good conscience.
Similarly, in the eventuality of incompletion of police investigation or non-submission of chargesheet within 120 days as mandated u/s 167 CrPC, bail has to be granted to such person as matter of right for enjoying liberty and to prepare for his defence.
It is necessary to strengthen the witness protection so that the criminal justice delivery system could be genuinely fruitful. A victim-logical prospective, victim care and compensation for victims of crime is now recognized statutorily.
A shift of legislative emphasis has already been done handling juveniles who come in conflict with law in terms of providing care and protection as against custody. Care, not custody, should be the prime concern which is the mandate of law under the Juvenile Justice Act. 2000, which is entirely based on the UN Convention on the Right of the Child.
The Supreme Court has already shown its anxiety in the case of Sheela Bars for the care and protection of children which has opened a new door for sensitising the magistrate and police as the best interest of the child is of primordial importance.
The Supreme Court said jail is hardly a place for a child. Again, stringent law has been passed like Protection of Women against Domestic Violence Act to curb matrimonial discords.
(The writer is a former Special Judge, CBI, Bhubaneswar and a former Professor of law, lal Bahadur Shastri National Academy of Administration, Mussoorie)