The purpose of the present paper will be to diminish the understanding that the court of law provides justices to the people and for which we call them “The Court of Justice” as well as the understanding of law as a tool or mechanism of providing justice to the people.
At the very outset, I want to make it very clear that the court law never provides justice to the people but at the very best in a good judicial system where all the necessary elements are present it can provide ‘Remedy’ to the people affected (e.g. where the judges are not corrupted, cases are disposed of without delay so on and so forth).
Now let us examine the case of Rylands v/s Fletcher for the purpose of substantiating what I have said. In this case, Ryland employed independent contractors who were apparently competent to construct a reservoir on his land. In the course of the work the contractors came upon old shafts and passages on Ryland’s land. They communicated with the mine of Fletcher, a neighbor of Rylands; but no one suspected this for they appeared to be filled with earth. The contractors did not block them up and when the reservoir was filled, the water from it burst through the old shafts and flooded Fletcher’s mines. It was found as a fact that while Rylands had not been negligent the contractors were negligent. When Fletcher sued Rylands the House of Lords held the defendant Rylands liable. The court brought out the principle that the rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril and if he does not do so is prima facie answerable for all the damages which is the natural consequences of its escape.
Again let us have a look at the decision of the Indian Supreme Court. In the case of M.C.Mehta v/s Union of India, the Supreme Court was dealing with claims arising from the leakage of oleum gas from one of the units of Shriram Foods and Fertilizers Industries, in the city of Delhi, belonging to Delhi Cloth Mills Ltd. As a consequence of this leakage, it was alleged that one practicing advocate had died and several others were affected by the same. The action was brought through writ petition under Article 32 of the Indian Constitution by way of public interest litigation. The court held in this case as under:
We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.
In reaching its decisions the courts devised various ways in order to provide remedy to the persons concerned but not justice. The mature of remedy may change from time to time depending on the multifarious factors and we have witnessed a shift from strict liability to absolute liability but on the contrary the nature of justice can never be changed which the so called courts of justice cannot provide.
Take few more examples to further illustrate the point. When a person is illegally detained for a long period of time without any cause and as a consequence of that a writ petition of habeas corpus is filed before the court and the court awarded a compensation of 50000 rupees apart from setting the man free. Or Mr. ‘X’ was murdered by ‘Y’ and the family members of X brought a criminal complaint and in furtherance with that the court found Y guilty of committing murder and accordingly convicted him. The question is whether these are justice? The answer is in the negative. Justice could have been better secured had the person not been arrested or had the person not been murdered. In this case what the person got is only remedy. Remedy cannot be equated with justice. Some jurists may argue it as remedial justice but they argue wrongly and without material consideration of justice. Justice cannot be equated with merely remedy consideration.
Justice and law:
Law as an instrument can never provide justice. My argument is not on the line of the Marxist one where he has shown the inherent capitalist’s interest in law nor is my argument based on the line of critical study movement where law has been shown as superstructure. My argument is simple and specific. The best kind of laws can provide only remedy not justice, setting aside the matter of bad laws because a bad law cannot provide appropriate remedy whether general or particular. Apart from law and morality debate, a bad law can be looked at from the angel of uniformity and universality as well. Let us take an example of a tribal woman in India who has been following a particular practice form the time immemorial and which she inherited from her ancestors. Now if suddenly the government comes with a law prohibiting that practice following the pattern of western world to maintain uniformity whether justice will be secured? On the contrary if the practice like ‘Sati’ is allowed to take place ignoring what is going on in the other countries whether justice will be secured? So my contention is the concept of good law or bad law can be looked at from the point of view of uniformity.
Law mainly provides remedy in general which has to be applied in specific situations depending on the facts and circumstances of each case like breach of contract, in which if established the defendant may be directed to pay a certain sum as remedy for the breach.
Remedy and justice:
The concept is justice is as vague as due process of law but it is true that no society can sustain itself properly without those two. On the contrary the concept of remedy is more specific embodied principally in good laws or the good judicial creations as well as doctrines. The concept of right does not provide justice but the concept of duty does. One may think that as the violation of rights-duty correlation. Take the example of one Mr.’Sen’. Like all other human being Mr. Sen has also right to life and similarly others are duty bound not to infringe it. Now, if Mr.Sen is murdered by anybody that implies the violation of one’s duty. From the right based approach, the murderer should be punished and even if the murderer is punished then also it is not justice it is merely remedy. Justice could have been better secured had one performed one’s duty of not killing anybody. In that sense justice is also different from due process of law. Due process is the means of securing remedy but not justice for which no due process is required.
