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Juneja Legal Says..

THE IDEALS OF JUSTICE, LEGALITY AND FAIR HEARING

August 26, 2012

JUSTICE has been defined in many ways by different authors. But these definitions are just notions as justice cannot be defined in some particular pattern. You cannot identify the justice by some color, caste, creed, race, religion, region, method or otherwise. It is just to be “JUST” and to be “JUST” is to appear “RIGHTEOUS” and “EQUITABLE”. So Justice is an appearance, and as other appearances, you may like it or not, it exists in different ways.

We say one person is just if it appears to us that what he has done is done rightly and in fair manner. So the word justice is relative term and is dependent on the perceptions of the AUDIENCE for whom or before whom it is done. The Courts, The Judges, The Arbitrators, The Parents, The Teachers, The Authorities, The Siblings, The Friends they all do justice or injustice and these changes with time. Their actions once seemingly UNJUST become JUSTIFIABLE and consequently JUST.

Therefore, when we pass our judgment on some action or some inaction of a person, friend, child, student or litigant etc. We need to be sure that our audience will perceive what we are doing as righteous and equitable.

The Constitution of India in its preamble gives us an idea of justice and this ‘Idea of Justice’ is very wide; it can be social, economic and political and has to be coupled with equality of status and opportunity. The Legality may be different from justice. Something which may be legal may not necessary be just, This is why we have many laws being set aside or modified with the passage of time. So the whole movement of the mankind is for justice, which in this movement itself is changing with time. This actually gives the whole movement buoyancy and takes it further high.

The Laws are meant for assisting in the process of justice and not to do the justice themselves, because no one else but the mankind itself can do justice for itself. The Legal Order of the day may not always be the Order for life and therefore the legality is also ever changing. Legality may not be the standards of Justice. Morality also changes with time. But from the two, morality has more to do with Justice. In Ancient India when the Kings ruled the kingdoms they were guided by the principals of “DHARMA” and this used to be their guiding force for deciding what is just and what is not. The times changed and we had rulers from different regions ruling the nation and molding the character of the nation of India. We then had British ruling us for over 200 years and they gave us the modern legal system. The codified laws at that time came as a solution, as it took away the discretion from the ruler to decide what is just and what is not. Then came the freedom and we went on with the same legal system with some modification and with new aspirations and morals.

Then the laws which were meant to decide what is legal and illegal were found to be ineffective tool for justice. The changes were therefore made in the laws. The laws were made more rational with the times passing. Earlier the Secrecy was the part of the LEGAL ORDER, then came in transparency, The democracy also showed its dynamism,  and therefore the definition of justice changed with times.

The Moral linen of the Society has a great impact on the Idea of Justice. The thoughts of the society at large with regard to the politics, economy and society itself changes with the time and this brings in the changes in the ideals of justice.

One thing which has never changed radically with the times is the principal of “FAIR HEARING” this principal being part of fundamental human character, has played an important role in the modern society. The principle of “audi alteram partem” (hear the other side) which came to us as part of the laws of Natural Justice have brought in the dynamism in the society. Think of the situation that if we were not required to HEAR? What will be our situation then? Will we have more ideas? The answer to that will be a sure NO. Unless we hear others, we cannot have new ideas, our brains will not develop, our thoughts will be stagnant, the brain will be useless. And by hearing others we try to understand the situations, the times, the needs, and the reasons and thus we keep growing as a humanity and this principal of justice is naturally coming from times unknown to the humanity.

FAIR HEARING has been naturally accepted as a way of ACCESS TO JUSTICE.  The justice is actually done following the natural and innate sense of what is right and what is wrong. The laws have developed processes by which the justice is to be done and all the processes have generally accepted the principle of Fair Hearing. For determination of the civil, constitutional or fundamental rights of any person it is required that hearing is given to the person. FAIRNESS of Hearing can be established after following the bare minimum ingredients which are; Firstly, reasonable opportunity of being heard; Secondly, equal treatment to all parties before the courts and authorities; Thirdly, opportunities to the parties to have access to all the evidence and to cross examine the evidence; Fourthly, providing unbiased judge who does minimum interference during the course of proceedings and considers the rights of the parties and their pleadings and after hearing the parties passes an order on the case.

The Ideals of the Justice have been legality at times, but it also depends on the morality of the time; Fair Hearing has been an Important Ingredient for equality and gives the appearance of justice. The society has been constantly in conflicts on the issues of policy, politics, economy, rights and other related issues. These issues generally give the appearance of the justice done by the government to the governed.

 

Punit B Juneja

Juneja Legal (The Law Firm)

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