How social justice must work
Chief justice H. L. Dattu's decision to expedite cases pertaining to rights and entitlements of women, children and deprived sections of the society is laudable, but constituting a special Social Justice Bench (SJB) to exclusively deal with such cases may not be the proper means to achieve this objective.
Though the much-acclaimed decision to constitute a SJB bench (with two judges held in high esteem) may give a face to judicial activism, restricting such matters to a couple of judicial minds could hamper the development of rights of people in the backdrop of the changing social and economic order.
The hearing of social justice matters needs to be expedited, but it cannot be ignored that the philosophy and sensitivity of judges have a bearing on decisions in such cases and that such rights have developed through an interplay of opinions by various benches of the Supreme Court at different points in time. The expeditious disposal of cases should not be the main objective of policies in this regard, as orders and judgments in such cases not only resolve disputes at hand but go on to serve as catalysts for change. The views by a bench (unless overruled) is accepted as the view of the court, as silence by other benches is also an opinion when there is an opportunity to express views while dealing with similar matters. The constitution of the SJB to exclusively deal with social issues would hardly give such opportunity to other co-ordinate benches.
It cannot be denied that views of individual judges like Justice P N Bhagwati, Justice V R Krishna Iyer and others have shaped rights enjoyed by the poor and marginalised. Their orders are not just binding but also inspire confidence as the voice of the court. With other benches by and large having no opportunity to express their views — through silence or otherwise — on the subject exclusively entrusted to the SJB, its orders could be open to criticism as being the views of a bench as against the views of the court.
Some time back a Supreme Court judge criticised judicial activism and went on to observe that the courts had exceeded their jurisdiction in ordering admission in schools and treatment to the poor in hospitals on land allotted by the government. Another bench, which clearly did not agree, subsequently expressed its opinion by refusing to hear a PIL on trafficking of women and children. The controversy, however, ended with a larger bench headed by then CJI K.G. Balakrishnan tilting the balance by opining against the conservative view. Apart from ensuring a collective effort towards achieving social and economic democracy, the distribution of social justice matters among various benches for hearing on a priority basis could help serve better the purpose of expeditious disposal. With the primary aim being providing justice and not mere disposal of cases, it would be difficult for the SJB to do justice with hundreds of fresh as well as pending cases by devoting mere two hours a week. On the other hand, it would be easier for a bench having cases on diverse subjects to give priority to social justice matters without getting into the difficult exercise of choosing one social issue over the other. In fact, various benches dealing with rights of women, children, hawkers etc. in the past have given priority to such cases over other matters.
The policy unveiled by the CJI also does not give clarity on matters not initiated by any petitioner but by a bench itself taking suo motu cognisance or by enlarging the scope of a matter before it. In fact, a matter concerning improving the lot of prostitutes was initiated by a bench on its own while it was dealing with a case concerning the brutal murder of a prostitute.
Further, one should not be oblivious of the fact that there is no right to appeal against a Supreme Court order. Should we leave such a key area of law to be guided by the philosophy and sensitivity of two judges exclusively dealing with the subject? In what reflects on the seriousness with which we should view the subject, B.R. Ambedkar stressed in the Constituent Assembly in 1949 that political democracy could not survive “unless there lies at the base of it social democracy”. While the Constitution guaranteed political democracy in clear terms, Ambedkar felt that the challenging task ahead would be to “make our political democracy a social democracy as well”.
No doubt, the judiciary has all these years strived to steer the country towards the goal set by the founding father of the Constitution and will continue to do so.