Law and Common Man

In our democratic set-up, all laws are made for all men, — common or uncommon. By common man, in common parlance, we understand — a man on the street. A man who may not have any status, office, post or rank in society. He is only a human being an Ordinary citizen with expectations of a just and human order. He may be a Tom, Dick or Harry Ram, Rahim or Shyam. The expression includes a cobbler, sweeper, baker, butcher, a priest, or a soldier. A person of whatever name and nomenclature known in the society. A legal system and its effectiveness has to be gauged or measured by the extent of its usefulness to the common man. In our Constitution, the preamble begins with the expression "We the people of India". This word 'we' does include also the wealthy, powerful and highly placed but the Constitution envisages therein a common man who may have no status or rank in society, he may be from amongst 'lowly and the lost' for whom national poet Ravindra Nath Sang. That is the suffering human race which stirred and inspired Gandhi, the father of the Nation. The question is whether our legal or judicial system has been able to reach this common man. This will require examining the system and face some of its bitter truths with a view to achieve improvement. I will put the subject in three parts:  the law-making in relation to the common man. its application through the legal profession. the dispensation of justice through the judges. Based on the legislative entries in the Constitution and the Directive Principles of State Policy contained therein, host-of laws have been enacted to uplift the lot of so-called commonman in India who is sometimes recognized as a member of weaker section of the society —a scheduled caste or a tribe, a labourer, a. farmer and socially and educationally backward citizen including woman. With Constitution, first came the laws removing untouchability, avoiding caste considerations in the governance of the country, equality of man and woman, just remuneration and human working conditions to labour release from indebtedness of farmers, grant of soil to the tiller, dowry abolition and upliftment of women to achieve them larger participation in all branches of the State. If we look back, all these laws have only remained on statute books for two reasons.:  want of social awakening; and moral education. The failure of law for common man is due to no change of heart or outlook of other fellow beings who are privileged and have a better status in the society. There has been no emotional integration between haves in the society and haves not. The society cannot be improved by laws. Social reforms are done not by laws but by leaders in the society who are virtuous, wise and of high moral character. Before making the laws or along with them, no attempts have to be made on behalf of the State or their agencies to spread moral education to encourage science with spirituality. The spirituality and science alone can rule the world including the Government based on democracy. In the absence of any effort in proper direction, the common man is deprived of the benefits of the laws enacted for him which do not reach him due to inefficient bureaucracy and mal administration.  Next comes the question of application of such laws meant for a common man in our legal and judicial set-up. Justice seems still to elude common man in the present set-up. When a common man desires justice, there are two dreadening hurdles — first, heavy expenses which he may be required to incur through the legal profession and second — Laws' delays. So far as the legal profession is concerned, it has ceased to be justice oriented. Lawyers are pure professionals. They have no time to devote for free legal service to the poor and the needy. Competent lawyers are too busy and so prohibitive to be in accessible, to the common man. They, there fore, serve only the wealthy, affluent or the powerful. Poor and hardpressed, therefore, prefer to suffer injustice rather than to enter into a course of litigation — highly expensive and indefinite which is sure to ruin them. One civil litigation or criminal involvement finishes them and their families. The best legal advice is that is given in the serman on the Mount — "If someone sues you, come to terms with him promptly when you are both on way to court." The famous Judge learned Hand was the wisest of judges in confessing that "he would as litigant dread a law suit beyond almost anything else, short of sickness and of death." Dickens said of the Court of Chancery that there is not an honourable man amongst its practitioners who would not give, who does not often give the warning — 'suffer any wrong that can be done to you rather than come here.' These opinions of learned man accurately reflects the mood of a common man towards the present judicial system. The learned man in the profession indulge in law only as a means of earning with little pity or concern for the lot of the common man. Lawyers are, as Swift explained, "a society of men brought up from their youth in the art of proving by words multiplied for the purpose that white is black and black is white according, as they are paid." They have ceased to be a 'counsel' within the true literal meaning of the word which suggests that they act as a friend or confident rather than in merely professional capacity.  The free legal aid movement has failed before it could start in full swing because of the half-hearted government petronage and no corresponding cooperation from the members of the legal profession. Unless the lawyer stake the profession as a means of doing service to the community, no relationship can be established between the Court and the common man who has to daily suffer injustice because courts are inaccessible to him. Michael Zander has studied the legal system of Britain to suggest law reforms and records with satisfaction in his book 'A matter of justice that in Britain, a large number of competent senior barristers are busy in acting as Amicus Curie a in courts and in providing legal aid to the poor for which they are paid by the State.The situation in India in just the reverse Our members of legal profession are required to inculcate the spirit of dedication to the cause of justice and for community service.  Last comes the examination of our judicial system manned by judges. In his much talked of books in the legal circles, 'JUDGES' David Pannick has given a very interesting account of outlook of a layman or a common man to lawyers, judges and courts. By quoting several instances, the learned author says that judges are common men, are high snobs, highly ritualistic and technical in their performance and behaviour so much so as they seem to be totally apathetic to the miseries of the common man. The Judge survives in literature and in popular belief, if not often in Courts; as "that evil old man is scarlet robe and horse hair wig whom nothing short of dynamite will ever teach what century he is living in but will at any rate interpret the law according to the books and will in no circumstances take a money bribe." Layman or a litigant appearing as a party or a witness finds a Judge extremely cold and less responsive to his woes and tragedies. On the excuse of huge vacancies in the bench, heavy load of work and lengthy procedure of hearing, they have become extremely harsh and insensitive to the lot of the common man who happens to approach them occasionally with grievance at huge cost and trouble. It is not uncommon for a Judge to insist a common man appearing before him with his own case unaided by a lawyer, to engage one because it is a botheration to a judge to understand his complaint. As a witness when he appears to assist the court, he has usually to suffer rebukes and sometimes insults and humiliation both from the members of the bar and the Bench. Judges and lawyers talk in a foreign language and in terms so technical that a common man is unable to understand whether his case is properly placed and understood or not. David Pannick in his book writes that avert from laws delays and cumbersome procedure 'What irritates amongst them beyond endurance is the ridiculous habit of lawmen dressing up for the occasion in the wig and gowns and using language that layman cannot understand'.  After lengthy arguments, which are heard after three or four years of the institution of cases, more after he has to wait for months to know the decision and yet another few months to understand it through someone, and yet, another few months to get on executable writ, decree or order. Thereafter to get ultimate relief based on that decision sometimes is a starting point for another course of expense and trouble. Thus, we have not been able to make our courts easily accessible forums for giving justice to common man. His expectations from this institution have already been belied and those who are per force approaching it get totally disillusioned. A method has yet to be evolved where the process of obtaining justice is less expensive, cumbersome and reasonably quick. Laws' delays have become proverbial right from the times of Shakespeare who ranked the laws 'delays' amongst the whips and scorns of time'. "Being involved in a law suit is like being ground to bits in a slow mill it is being roasted at a slow fire; it is being stung to death by single bees, it is being drowned by drops; it is going mad by grains.  Legal Aid Movement and Lok Adalats have failed to satisfy him because if at all they dispense justice that is of a sub-standard quality. How justice through a fair procedure, less expensive and quick can be administered is still the problem facing all associated with this institution. Less expensive, less technical, less formal, cheep and quick — that is sort of justice a common man looks for. It is not impossible to achieve.  A few suggestions need consideration:  To bring law and justice closer to common man, he should be provided with a forum created by the State for getting legal advice on easy terms. All registered lawyers should be held as duty bound to devote some time in a week, month or year for free legal aid through the State forum. The legal service for the poor should be free or reimbursed by the State. The Judges should be appointed in good number. At least no vacancy should be allowed to remain unfilled for an unreasonably long period of time. The Judges should administer substantial justice and avoid too technical approach. Hearing, if possible, should be in the language which the litigant understands, Attempts should be made to secure his presence when deciding his case. Even if arguments are lengthy and points intricate, Judges should be allowed to deliver final result or conclusion at the earliest and the reasons for decision may follow later within prescribed time for eventual appeals; The writ or order or operative part of the decision of a judgment be communicated to the party and certified copy be supplied to him by post on an approximate expenses charged at the time of institution of cases. The judges should, if claimed by the parties, grant hearing to the parties themselves. Open criticism of the merits of the judgment should be permitted without fear for contempt. Davit Pannick in his book comments, to aid understanding to the judicial branch of the Government, Judges should themselves be prepared to take off wigs and explain their decision to the public.' Slowly but gradually, public understanding of the legal system should be improved. Judges have a public duty to speak out on matters concerning the administration of justice because the judiciary enjoys a security of tenure rightly denied to politicians and unique amongst public servants. It is especially important that the judges should be subject to free and open criticism of the performance of their duties. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary man. An enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion and contempt much more than it would enhance respect. Like other public servants, judges, should accept criticism as an occupational hazard, Legal sanctions, even if rarely used, will inevitably deter plain speaking. Those with something valuable to say may well be scared into silence.  Former Chief Justice of M. P. G. P. Singh suggested a few legal reforms:  So far as civil courts are concerned, they should be allowed to entertain plaints drafted in the prescribed forms, even filled, signed and filed by an ordinary litigant. Evidence of witnesses duly recorded through exchange of correspondence by the parties or lawyers should be allowed to be filed as documentary evidence. Suits can be expeditiously tried as writ petitions on affidavits. Similar such law reforms may bring common men nearer to courts and thereby increase his willingness to approach the Court for justice rather than adopt some other modes outside the Court premises which are not permissible in law. A common man for the present looks at the Court as an institution which he should avoid as far as possible and prefer some other illegal means for redressal of his grievances. The attempt in the right direction has yet to be taken. Ideal should be to gradually reduce the courts and their work load for achieving a just and orderly social set up. Non-redressal of just grievance of a common man reflects a sick society suffering under injustice. In spite of all odds, the Judicial Institution continues only because as said by a great author, "it is unlikely that man and woman will ever cease to wound, cheat and damage each other. There will always be a need for judges and courts to resolve their disputes in an orderly manner."

Author Name: D. H. Dharmadhikari