Morality versus utilitarianism

No second word is needed to admire country’s judicial structure. Most of it is of historical inheritance. Constitution of independent India went a long way in embellishing the judicial system. Yet there is no finality to any concept. Despite comprehensiveness of the system, the dynamics of social development and the corresponding demands of social justice are increasing at rapid pace. The law of the land has to keep step with this change. As such, the process of legal reforms remains a new phenomenon that caters to the evolving of new Indian society with economic, political and social justice as its essential requirement.
Prime Minister’s address to a very distinguished assembly of legal luminaries in connection with the concluding ceremony of sesquicentennial celebrations of the Bombay High Court, was more or less, an interpretation of judiciary as an organ of the state and as looked upon by the executive. We have been noting for some time that the judiciary has been called upon to perform tasks that normally should have been performed by the executive. Some may call it the sense of deference on the part of the executive to be demonstrating its full length cooperation with other organs of the state especially the judiciary. But at the same time, others consider the phenomenon a political compulsion arising out of Westminster type democracy practiced in a country with nearly 35 per cent illiteracy and equal percentage of below poverty line population. This does not make the task of either the executive or the judiciary easier. Yet the manner in which the judiciary in the country has carried its responsibility and responded to the delivery of justice is commendable. Encomiums exuded by the Prime Minister in the case of Bombay High Court with short sprinkling of historical interludes are well placed. However, in an overall estimation this has been the case with the entire judicial structure that we depend upon. The Prime Minister is very right in stating that the Bombay High Court had demonstrated time and again that the judicial process was “neither cold nor impersonal” and through creative and dynamic interpretations worked for the continuing relevance of laws to the realities of the present times. This has been true of other High Courts of the country as well. Maybe Bombay High Court adjudged some crucial cases of national interest and in special branches of law such as intellectual property, cyber laws, securities and banking law; corporate laws and international commercial arbitration that had vastly enriched the understanding of evolving legal regime in these areas. It is a patent chapter in the history of legal system in the country. Without stirring the hornet’s nest, the Prime Minister, more as a statesman than as one holding academic authority on matters of legal dimension, desired full cooperation among all the three organs of the state essentially for reducing pendency of stockpile of cases in country’s courts and more importantly for delivery of cheap justice to the supplicants. But delivery of justice, timely and inexpensive, is the crux of issue. The Prime Minister, on his part, stated that the Government was seized of the issue and had taken some steps like the formation of Law Commission which would be looking how our legal system and judicial institutions can be streamlined. He noted that the executive and the judiciary had to coordinate their efforts in this behalf.
Though the Prime Minister’s address was laced with the elegance of astute statesmanship, he did peep through the keyhole at the seamy side of things when he stated that, “While interpreting the Legislative will it has attempted to fill the gaps in law and supplied omissions to correct legal uncertainties. That is not to say that there have been no dilemmas, no contradictions or no aberrations.” It fell to the lot of the Chief Justice of India, Justice Kapadia to do some small plain speaking on the historic occasion. His statement that in a case where the content is political and a legal standard to dispense on the case is not available, it would be advisable to keep the doctrine of deference in mind and refer the case to the executive or the legislature for a just decision. Hindsight will show that in recent years such occasions did arise and now the guideline has been set forth. But the most crucial part of Chief Justice’s statement was epitomized in his pithy remark that “the turf war between the judiciary and the executive arose because the judiciary is guided by morality of law while the executive is guided by the philosophy of utilitarianism.” Which of the two should supervene? The Chief Justice did not touch upon. Thus the civil society in this country will have to take up the discourse sooner than later.

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