 "No justice without the rule of law")
A conversation with a senior fellow financial sector lawyer last week went thus. "What one-sided pieces you write," he admonished, although with unconditional affection. The obvious reference was to recent editions of this column that criticised how the rule of law is readily broken by law enforcers when dealing with cases that seem to shock the conscience of society. "The rule of law is all fine, but justice too should be done. Violaters should not get away easily," he reasoned.
"The rule of law can be a controversial subject. We do have a Constitution after all..." I ventured. "The Constitution itself is out-dated and deserves to be revised," he retorted. "But until the people politically mandate a new Constitution, what we have needs to be adhered to," I shot back. Our conversation abruptly moved to which court rooms we were proceeding to -- ironically, we were going up the stairs of the Supreme Court.
The conflict between law and justice is an age-old one. Delivering justice is indeed the objective of law, but it is only adherence to the rule of law that can ensure that justice is best done. By definition, notions of "justice", without a rule of law to deliver it, can be individualised, and plastic. Like a piece of art, the very same judicial outcome could be regarded as heavily unjust by some, with as much vigour as others may consider it just. Laying down the rules of the game for delivering justice, and adhering to it, is what the rule of law is about.
Indeed, to render judgment to cater to the ends of justice as perceived, judges, of course they are human beings too, end up bending the law. Legislation lays down the rules of the game. Disputes over how the legislation should be interpreted are what the courts have to resolve. Their interpretations of law bind not just the parties in dispute, but also the rest of society. Disputes may travel through the appellate path all the way to the Supreme Court, and ultimately conclude with a ruling from the apex court, which is always right, because it is final. Or so one thinks, all adherents to the rule of law would believe.
For example, it is a judge's notion of justice that led the Supreme Court to rule that that arbitrations by even-numbered arbitral tribunals are valid (against the teeth of a new arbitration law that explicitly outlawed such tribunals). Just as it was another Supreme Court judge's notion of justice that led to his ruling that "keeps" cannot benefit from the outlawing of domestic violence (although the law did not really support that position, and indeed, the case before the bench had nothing to do with domestic violence). Likewise, it was the notion of justice of over-zealous tax officials and finance ministers that led to retrospective amendments being introduced to deny the fruits of the Supreme Court's rulings to Vodafone (income-tax) and from ITC (excise), thereby changing the rules of the game after it had been fully played out.
Indeed, it was the notion of justice at play when a man convicted in a trial held to be unfair by the apex court, was sentenced to death by that very court. As indeed, when the President of India secretly refused to grant him mercy, and the Indian Republic rushed to hang him overnight, so that his family's right to challenge the President's decision could be frustrated.
Indeed, even in the business regulatory space, lawyers defending infractions of the law by law-enforcers argue that their clients were justified in not passing formal orders because the accused would have otherwise been able to challenge their decisions, and thereby defeat their objectives.
It is such notion of justice that supports hiding evidence from an accused that would help him establish innocence. In a nutshell, each of these examples furthers someone's individual notion of justice, but quite evidently compromises the pursuit of truth, and thereby, real justice.
When the law is broken in the name of justice, there would be no moral force left in -- in short, the real victim would be the very concept of justice. If the rule of law were to become a mere "nicety" that is good to have but is not essential, society would have to be very worried -that would be fertile ground for anarchy.
"The rule of law can be a controversial subject. We do have a Constitution after all..." I ventured. "The Constitution itself is out-dated and deserves to be revised," he retorted. "But until the people politically mandate a new Constitution, what we have needs to be adhered to," I shot back. Our conversation abruptly moved to which court rooms we were proceeding to -- ironically, we were going up the stairs of the Supreme Court.
The conflict between law and justice is an age-old one. Delivering justice is indeed the objective of law, but it is only adherence to the rule of law that can ensure that justice is best done. By definition, notions of "justice", without a rule of law to deliver it, can be individualised, and plastic. Like a piece of art, the very same judicial outcome could be regarded as heavily unjust by some, with as much vigour as others may consider it just. Laying down the rules of the game for delivering justice, and adhering to it, is what the rule of law is about.
Indeed, to render judgment to cater to the ends of justice as perceived, judges, of course they are human beings too, end up bending the law. Legislation lays down the rules of the game. Disputes over how the legislation should be interpreted are what the courts have to resolve. Their interpretations of law bind not just the parties in dispute, but also the rest of society. Disputes may travel through the appellate path all the way to the Supreme Court, and ultimately conclude with a ruling from the apex court, which is always right, because it is final. Or so one thinks, all adherents to the rule of law would believe.
For example, it is a judge's notion of justice that led the Supreme Court to rule that that arbitrations by even-numbered arbitral tribunals are valid (against the teeth of a new arbitration law that explicitly outlawed such tribunals). Just as it was another Supreme Court judge's notion of justice that led to his ruling that "keeps" cannot benefit from the outlawing of domestic violence (although the law did not really support that position, and indeed, the case before the bench had nothing to do with domestic violence). Likewise, it was the notion of justice of over-zealous tax officials and finance ministers that led to retrospective amendments being introduced to deny the fruits of the Supreme Court's rulings to Vodafone (income-tax) and from ITC (excise), thereby changing the rules of the game after it had been fully played out.
Indeed, it was the notion of justice at play when a man convicted in a trial held to be unfair by the apex court, was sentenced to death by that very court. As indeed, when the President of India secretly refused to grant him mercy, and the Indian Republic rushed to hang him overnight, so that his family's right to challenge the President's decision could be frustrated.
Indeed, even in the business regulatory space, lawyers defending infractions of the law by law-enforcers argue that their clients were justified in not passing formal orders because the accused would have otherwise been able to challenge their decisions, and thereby defeat their objectives.
It is such notion of justice that supports hiding evidence from an accused that would help him establish innocence. In a nutshell, each of these examples furthers someone's individual notion of justice, but quite evidently compromises the pursuit of truth, and thereby, real justice.
When the law is broken in the name of justice, there would be no moral force left in -- in short, the real victim would be the very concept of justice. If the rule of law were to become a mere "nicety" that is good to have but is not essential, society would have to be very worried -that would be fertile ground for anarchy.
The author is a partner of JSA, Advocates & Solicitors. Views expressed herein are his own. Email: somasekhar@jsalaw.com