ORIGIN OF JUSTICE SYSTEM CREATION OF STATE AND ORIGIN OF RIGHT
The life of native man in the state of nature is full of freedom and liberty. There is hardly any hindrance over his physical and mental abilities to acquire property or enjoy pleasures of life by any external authority. Thus physical and intellectual might is the order of the day. In such a scenario, the life of weak is deplorable and it is no better than a slave, if not living death. This uncontrolled state of life and unregulated desires of native man either towards property or sex made man’s life a state of unrest and constant insecurity. The native man with increasing time being witness to the danger of survival for a weak human being and fallibility of human being physical powers with increasing age coupled with his passion towards his progeny felt for a powerful system which could effectively safeguard life, liberty and property of individual and eliminate state of unrest in the state of nature. Thus native man in association with his fellow man formed institution called society, which later evolved into a state. This association entrusted few amongst them with duty to protect and preserve their life, liberty and property by rewarding them with honour, remuneration and obedience. It must be noted that native men entrustment of power to few is not negation of his very life or liberty rather it is a consideration he acquired for certain recognized benefits granted by society or state. These are called as recognized benefits as in the event of threatened violation or violation of such benefit he is rescued with appropriate remedy. This advantage man gained consequent to creation of society is called as right. Thus the concept of right is a dividing line between native man and society and fellow human beings.
Creation of Justice System: Mere creation of rights and duties doesn’t guarantee their existence especially when the state itself is encroacher and violator of citizen rights. Hence, the idea of necessity of independent and impartial dispute resolution was felt. This further raises a question what shall be the values of such dispute resolution system. The values of this justice system are:
Values of Justice System:
- a) Determination of right or liability
- b) Due opportunity to party either side c) Adversarial method of justice system
- d) Rule of law e) Judicial review f) Atleast one appellate forum
Determination of right or liability: One can approach court only if his right is violated and someone who has liability towards fails to discharge it. Such party shall report the grievance and place evidence and prove the case. If same is proved court would grant either preserve the right or redress it through appropriate remedy in case of violation of right. Thus duty of the court is not creating right but determining rights. It is also evidence definition provided for decree under S.2 CPC,1908 and S.101 of Indian Evidence Act,1872.
Due opportunity to party either side: It is improper to punish anyone or act against any one without affording any opportunity. Hence, before acting against the interest of other especially pertaining to life, liberty and property due opportunity must be given either to refute or disprove it. To this end there is prescribed process and often called as adjudicatory process. Originally we have from time immemorial kinds of adjudicatory process. One is Criminal Justice system and the other is Civil Justice system. The term System means a procedure or process or method for obtaining an objective.
Adversarial method of justice system: The adversarial system (or adversary system) is a legal system where two advocates represent their parties’ positions before an impartial person or group of people, usually a Judge who attempt to determine the truth of the case. As opposed to that, the inquisitorial System has a judge (or a group of judges who work together) whose task is to investigate the case. Thus, in adversarial method of justice system the central figure is lawyer as great amount burden is rest upon the lawyer to collect evidence and frame the case properly and convince the judge. However, with the increasing time there is an increased tendency towards inquisitorial justice system. The adversarial system is generally adopted in Common law countries. An exception, for instance S.304 B IPC and S.118 NI Act.
Rule of law: Rule of law implies that every citizen is subject to the law. In order to conclude that exist a rule of law in a country or society it must fulfill fowling three conditions:
1st Condition: A uniform body of laws to regulate all human conduct in the State. In India we have a uniform body of laws which governs our society and regulates all human conduct within our country.
2nd Condition: A citizen should be able to approach courts for redress against the State like any other private individual for violation of his rights. There shall not be any prior permission of the state to sue it. It is provided under Constitution by A.300.
3rd Condition: The determination of disputes must be by regular courts manned by independent judges. In India we have independent and integrated Judiciary with its own administrative and regulatory mechanism. The appointment of Judges is also made in consultation with the Chief Justice of the High Court concerned, the Governor of the State and the Chief Justice of India. This method of appointment guarantees that judges appointed to the H.Court would be persons of ability, integrity & independence. If the Government–be it State or Central–did not carry out the decisions of the Court. The answer to this question is there in Article 144 of the Constitution which inter alia says that all civil authorities in the territory of India shall act in aid of the Supreme Court.
Judicial review: Power of High courts and Supreme Court to declare acts or laws of legislature or executive null and void if they are in violation of violation of fundamental rights or basic structure of constitution.
Atleat one appellate forum: To err is human, further, to ensure accountability and transparency in the actions of the lower tribunal appeal is the best course. The court in which issue is first alleged and tried is called original court or jurisdiction and forum where matter is heard on appeal is called appellate jurisdiction
OPERATIVE TOOLS OF LAW
Rights and Duties: It is evident from above discussion that that the relationship between State and its subjects and inter-se is governed by law and law is nothing but distribution of rights and obligation amongst them. Infact all modern legal systems are constructed on the edifice of this principle only and it is necessary to delve further into the concepts of right and liability.
General meaning of term Right and duty: Right means advantages, benefits a person can enjoy. Obligations on the contrary are duties or charges imposed on a person, who is under the obligation to full-fill them. Synonyms of right are: Liberty, Power, Privilege, and Immunity. Synonyms of duty: Liability, Disability, no right.
Relationship between Right and duty: Rights and obligations though distinct and opposite, they are no manner different as one cannot exist without other. They are simultaneously same in origin. There cannot be a right in favoour of one person without there being corresponding obligation on another. However, it is expressed as right at one place and duty at another place basing on the context. To illustrate, a person in settled peaceful possession of property has every right to continued to be in possession of the property without the interference of another and there is an obligation on the whole world to respect the same. If we read the same from penal law perspective, it can be said that no one shall commit trespass into possession of property in the hands of another. Thus penal law converts obligation on part of individual into offences. Penal law creates an offence either by way of positive command or by a prohibition. Thus civil law is in fact only another aspect of penal law and to establish right means prohibition on another and vice-versa.
With the above back ground now let us see what is the legal meaning given to the term right? Legal Meaning of term Right: According to Salmond: “A legal right is an interest recognised and protected by a rule of legal Justice – an interest the violation of which would be a legal wrong done to whom whose interest it is and respect for which is a legal duty”. It means something that is due to a person or governmental body by law, tradition, or nature. In essence right refers to something which others are due to a person and it is a claim recognized by state and enforced through process of law. It can also be said that to call something as legal right there should be a remedy. Otherwise, it is not a right. Ubi jus, ibi remedium – The maxim was first recorded in the laws of England some 700 years ago by King Edward I.
In this connection it must also be mentioned that violation of right is the only pre-condition to seek for redressal of court but not quantum of damage sustained. This can be better explained with the aid of two famous cases: Ashby v. White (1702)2LD Raym 938 and Gloucestor Grammar School Case.
In Ashby v. White (1702) 2LD Raym 938 – Plaintiff is a legally qualified voter. The defendant, returning officer, maliciously prevented the plaintiff to exercise his franchise. The plaintiff sued the defendant even though the candidate, to whom he intent to vote was declared elected. Holt C.J held the defendant liable on the ground that the plaintiff’s legal right was infringed.
In Gloucestor Grammar School Case: The defendant started a school and collected reduced fee from students. As a result, the students in plaintiff’s school transferred to defendant’s school. Consequently, the plaintiff suffered loss and sued the defendant. Hankford J. held that plaintiff’s suit is not actionable on the ground that his legal right is not infringed by the defendant.
BASIC PILLARS OF JUSTICE SYSTEM
RIGHT, REMEDY AND REDRESSAL FORUM
The message of previous chapter is that one can seek the aid of the court only if there is an invasion or threat to invasion of right guaranteed by law. Therefore a robust understanding of some of the most basic and relevant rights is very much necessary. In this chapter we are going to study various kinds of legal rights an individual can claim. The laws that deal with rights and obligations are called substantive laws. For convenience sake and insightful understanding they are studied under following heads: – 1) Fundamental rights 2) Public rights 3) Personal rights 4) Customary rights 5) Contractual rights w.r.t property rights.
- Fundamental rights: Right to Equality, Freedom of speech and expression,
Right to life and liberty, Right to practice religion, Cultural and educational rights,
Right to approach court
- Public rights: 1) Right to free legal aid, 2) Right to information, 3). Right to work, 4). Rights under Penal Laws
III. Personal Rights: Right to marriage Right of divorce Right to adopt , Right to seek maintenance, Right to will property Right to inherit
- Customary rights: Property right of Coparcener Right to marriage by Muslim:
- Contractual Rights: Any person who fulfills conditions laid down under S.10 of Indian Contract Act, 1872 can enter into contract. In view of such contract they acquire rights and duties one against other and vice-versa.
Property rights:
1) Right of ownership 2) Right to possession of property
3) Right to receive the title deed of the property 4) Right of Mortgage 5) Right to Lien
6) Right of Hypothecation 7) Right of Pledge 8) Right of Charge 9) Right to Lease
10) Right to License 11) Right of Exchange 12) Right to Gift Right 13) Right of Actionable claim 14) Right of Easement
Remedies: Any person who’s right is violated or who has an apprehension that his right may be violated can approach the court to protect his right or to prevent its violation or for remedy provided under law for its violation. The Law basing on the kind and nature of violation of legal right sets-out certain remedial measures. It must be mentioned that in democracy wedded with rule of law aggrieved or victim upon violation of his rights can’t demand for enforcement of a remedy which is not recognized by law. To put straight one cannot demand a remedy from court which he opines correct. Ex: If eye is lost due to hurt caused by accused, victim can’t demand removal of eye of the accused unless it is recognized by law.
The following are the major remedial measures provided under various laws.
Constitution provides following kinds of remedial measures for protection or enforcement of violated of fundamental rights. They are: (a) Writ of Habeas Corpus,
(b) Writ of Quo Warranto, (c) Writ of Mandamus, (d) Writ of Certiorari, (e) Writ of Prohibition.
Specific relief Act,1963 provides following remedial measures for protection or enforcement of violated of Civil rights.:- (a) Specific performance (b) Injunction, (c) Declaration, (d) Recovery of possession (e) Cancellation, (f) Recession.
The other reliefs available under Civil law are: (a) Damages (b) Maintenance, (c) Mesne profits, (d) Partition (e) Grant of succession certificate.
Indian Penal code & other penal laws provide followings kinds of remedial measures for violation of duties prescribed under them. It is also known as punishment.
a) Death b) Imprisonment for life c) Imprisonment, which is of two descriptions, namely:—
(1) Rigorous, that is, with hard labour (2) Simple
d) Forfeiture of property e) Fine Court can also award compensation. It’s also a remedy.
Redressal of right: The Court in order to grant any remedy, it is necessary for it to ascertain the existence of such right which is being claimed. As such, it is imperative for court to follow uniform and effective procedure for ascertain the existence of such right and enforce the remedy in the event of allowing the claim. Thus apart from right and remedy, the procedure for reporting the grievance and its adjudication, enforcement is also equally important. In order to look after these affairs basing upon kind, nature of right and remedy sought for certain laws are enacted. These laws are called procedural laws. Some of the most important procedural laws are: (a) Constitution of India and Writ rules b) Civil Procedure Code and Civil rules of Practise, (c) Criminal Procedure Code and Criminal rules of Practise (d) Limitation Act, (e) Suit Valuation and Court Fee Law, (f) Stamp and Registration Law, (g) Indian Evidence Act, (h) Legal Services Authority, (i) Arbitration and Cancelation Act 1996, (k) Consumer Protection Act.
In a Democracy wedded with rule of law the concept of fairness must embrace in every action of state both apparently and inherently especially in adjudicating a claim which has large scale implications on the lives of citizens. Therefore, based on above public policy considerations and administrative convenience or limitations of adjudicatory forums following principles or rules are scaled out and organized accordingly with the aid of above mentioned laws. In fact these are the basic principles on which any civilized adjudicatory forum operates. The principles are: Principle of Locus standi, Resjudicata, Admissions, Estoppel, Jurisdiction, Law of Limitation, Stamp Act, Registration Act, Suit Valuation and Court Fee Law, Principles of Pleadings, Summons, Fixing up disputed question, recording of evidence, adjudicating claim or judgement, Appeal, Enforcement of judgement.
The following are the major dispute resolution mechanisms wherein we find the operation of these principles with minor variations here and there:
1. WRIT court 2. Civil Court 3. Criminal Court 4. Legal Service Authority 5. Mediation and Arbitration forum 6. Consumer Tribunal 7. Debt recovery tribunal 8. Wake Tribunal 9. Administrative tribunal 10. Leland grabbing court 11.Revenue court.