by Jayram Daya, R. Srinivasan and Naresh Jotwani

In a few previous posts, we have discussed harmony of mind, body and spirit (here), harmony with nature (here) and — somewhat indirectly — harmony in a society (here). On the last point, harmony in a society, clearly the legal system also plays a big role. The ideal, of course, would be that the legal system adds to societal harmony. But can this ideal ever be attained, given human nature and the working of a modern society?

The legal system is a practical, administrative necessity in a modern society. Without a proper legal system, a modern economy cannot function. Harmony figures nowhere in the stated goals of an economist or a business titan; and only a very simple-minded person would assert that the legal system adds to societal harmony.

Thus we have a seemingly unavoidable tradeoff here between two goals — economic performance and societal harmony — both of which are desirable for a society. Three views are presented here to get you thinking!

Part 1: by Jayram Daya

View from South Africa

Over the long periods of colonization, invaders and colonizers established judiciary systems which protected their interests. In recent centuries, this strategy has been employed by colonizers from the west, who see themselves as making up the so so-called ‘Judeo-Christian’ civilization. These colonizers viewed all others who did not share their faith as enemies, and as being lower than them – while, of course, being partial towards people of their own kind.

In 1948, the National Party became the ruling political party in South Africa. Afraid of black activism and motivated by racism, they passed laws legalizing oppression of the black races. This discriminatory legal system was called Apartheid. During Apartheid, political activists in South Africa were severely mistreated and victimized by an unchallengeable legal system. Section 29 permitted indefinite detention, blatantly violating the basic tenets of law. The Apartheid law disregarded personal freedoms, denying arrested individuals access to lawyers and a fair trial.

The Apartheid regime created a legal system specifically designed to protect themselves and their rabid supporters, particularly the white population. Many such legal systems around the world are based on so-called ‘Judeo-Christian’ traditions; such systems exhibit a bias against the natives of the respective lands, and also against other religious and ethnic minorities. Directly or indirectly, western countries supported the Apartheid regime despite its cruel and flagrant violations of human rights.

This is the major reason that legal systems fail to deliver judgments which are fair and equitable. In simple words; ‘The inequity in the system is not a bug; it is a feature’.

Apartheid ended in the early 1990s. Today, South Africa is a constitutional state, with a supreme constitution and a bill of rights. All laws must be consistent with the constitution. South Africa has a mixed legal system – a hybrid of Roman and Dutch civil law, English common law, customary law, and religious personal law.

While the legal system has made great strides in South Africa, it will take many years for the ruling party to overcome decades of corruption and the legacy of Apartheid. A revision of the criminal law is necessary, especially as it pertains to government ministers, bureaucrats and white-collar workers.

I narrate two cases to demonstrate how the laws and legal system affect the average person in South Africa today.

Case 1. Although Apartheid has ended, corruption, illiteracy, and poverty remain the country’s greatest enemies. One of my garden helpers became well-known in our household. One night, I learned he had been found dead in a gutter on a rainy night. He was poor, from a broken family, and a habitual drinker. The theft of his TV and expensive goods raised suspicions. The murder was reported by witnesses, which led to the arrest of the alleged perpetrators. Despite no direct evidence of murder, indirect evidence and other pending cases would have led to life sentences. In fact, why these persons had not already been punished for their earlier crimes puzzled me. The reasons point to systemic corruption, stolen case dockets, bribed cops, intimidated judges, and low-income victims unable to afford attorneys. Once again, however, these well-known criminals were released due to ‘insufficient evidence’; corrupted forensics falsely claimed that the death was caused by rain. The legal system failed to bring peace to the township, as the perpetrators continue to terrorize the community.

Case 2. Women in Zulu culture may have relationships with men, whether they are married or unmarried, and children may be born before women are legally married. An old employee of ours, who supported his children well, married his partner due to pension fund requirements. After they separated, his wife started seeing another man. He stopped giving her money, but continued to educate their children. Lately, he received a court notice demanding family support, as his wife wanted a substantial sum. The attorney informed my employee he must sign the divorce papers for a settlement. This included giving half his wealth to his wife and leaving his pension for her benefit after his death. For that purpose, his wife needed to produce the divorce papers, which she wanted him to sign. But he refused to sign, fearing his wife might kill him for his pension fund. The legal system is designed to safeguard women by ensuring the well-being of their offspring, but greedy women, greedy lawyers and a corrupt judiciary have hampered the system.

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Regarding specifically the legal system in India, I would like to add this note:

Justice delayed is justice denied.

This is legal idiom that highlights the need to provide legal or equitable redress to an accused party as quickly as feasible. A delay in dispensing justice is ultimately a denial of justice, because it prolongs the aggrieved party’s suffering and undermines the judiciary’s legitimacy. Timely justice is crucial for maintaining public trust in the judiciary, defending rights, and upholding the rule of law. Delays can lead to lost evidence, impaired witness memories, and prolonged anxiety, all of which jeopardize the decision’s fairness.

Part 2: by R. Srinivasan

Legal system brings disharmony  

The modern legal system has evolved, along with other democratic institutions, in societies where traditionally only a tribal order existed. As societies matured, the legal system was codified in supposedly unambiguous language. However, in this process, the very objective of dispensing fair justice was compromised, since prolonged interpretation of words became the primary basis of dispensing justice. The role of lawyers and others associated with the huge legal bureaucracy became more important than the actual issues faced by citizens, issues which called out for justice in the first place.

The primary objective of a good legal system is to ensure fairness and order in a multi- dimensional society, where various opposing interests would otherwise lead to conflict and the disturbance of peace. In reality, however, we see that the legal system, instead of resolving conflicts, prolongs the same, going back and forth on issues, only to increase disharmony in the society.

Any law, whether criminal or civil, has its role only within the constitutional framework of the country. No law can be legislated which violates the basic structure or articles of the constitution. However, depending on the prevailing contingencies, laws are sometimes passed based on the perceived issues and the urgent need to address them. Sometimes such laws are challenged as violating the basic tenets of the constitution. Even then, interpretation of the laws varies from the lower courts to the higher ones, leading to time delays and high costs for those caught up in the process.

In theory, there is equality of all before the law. However, in every country, the rich and powerful somehow manage the legal system to their advantage. Ordinary citizens find that the lawyers they hire take them for a ride, cynically betraying their duty and trust reposed in them. This tragic game continues when cases are adjourned by judges at the behest of lawyers, seemingly unmindful of the need to dispense justice in timely manner.

For example, the disproportionate assets case of Jayalalitha, former CM of Tamil Nadu, dragged on for over sixteen years. By the time the Supreme Court gave a verdict, she had died; her accomplice Shashikala was convicted and was eventually jailed – but for a mere four years. As opposed to such VIP cases, a low level government employee, charged with taking a bribe, is sentenced within a very short time.

A huge backlog of cases is pending in the courts; hundreds of thousands of under-trials languish in jails for periods longer than the time they would serve if convicted. A middle-class person avoids getting involved in even a civil case, because of the inordinate delays and the waste of precious time waiting for the case to come up for hearing.

Judgements are based on interpretation, and judges may disagree in their interpretations. But nobody is held accountable for erroneous judgements, which are later reversed in a higher court. Ugly ground level reality increases the sense of alienation among ordinary citizens.

Due to the general sense of disaffection with the system, there are some instances of ordinary people taking the law into their own hands, so as to dispense instant justice. This is clearly a reflection of disharmony created by the legal system.

In many cases even a well-intentioned law is misused by the powerful or the corrupt. This is revealed after many trials, and much suffering over a long period of time – adding greatly to societal disharmony. The rule of the law is supposed to ensure peaceful coexistence, but in reality the law is weaponized in such cases to achieve unjust ends.

The question that needs to be addressed is this: Can a society today provide a fair and equitable legal system to all?

In my opinion, for several reasons, expecting this to happen is wishful thinking.

• Man by nature is a political animal when he is part of a group, and the natural tendency of any group is to find ways to obtain power over others. As long as this behaviour does not change, any legal system will eventually create disharmony due to the adversarial nature of relationships it promotes through misuse. Further, group behaviour percolates down to the individual level, and one sees that individuals belonging to the group in power misuse the law.

• It is argued that the problem is not with the legal system, but with the behaviour of the individuals within the system. This argument misses the key point, that finally it is the individuals who participate and play their role within the legal system. Therefore this argument does not absolve the legal system from the charge of betraying the true cause of justice.

• Anyone with the authority to reform the system does not even attempt to do that, since the present system suits him. For example, politicians cry foul when in opposition; once in power, the same people, using the same legal system, make their opponents cry foul. Lawyers are the happiest, since they make money either way. Judges may plead for reform, but do they really want to reform the judicial system, given that the system gives them positions of enormous power?

Part 3: by Naresh Jotwani

मन एव मनुष्याणां कारणं बन्धमोक्षयोः।

Many years ago, while chatting with a young lawyer, I asked him innocently:

‘Suppose a potential client comes to you, requesting that you take up his case in a legal dispute. He explains his position in the dispute, and you see at once that he has no chance of winning the case. Would you tell the potential client that he has no legal case and that he should drop the idea?’

No doubt a more experienced lawyer would have given me a very polished and lengthy ‘professional’ reply. But the young lawyer, not being so experienced, gave me a direct, simple and honest reply:

‘Come on, Uncle! If I were to do that, how would I ever establish my practice?’

The young man must by now be a fairly successful lawyer, but surely his attitude would not have changed. The legal system in our country must have millions of such people working in it in various capacities, earning their living and – like everybody else – facing the many pressures of modern life.

Would it not be extremely naive – even ridiculously naive! – to expect that the majority these people would be motivated by the pure spirit of bringing true justice to their clients and to the long-suffering citizens of our country?

Clearly, one cannot expect that such a system would engender harmony in a society. Perhaps the best one can hope for is that it would not add too much to societal disharmony.

Speaking of harmony, it is appropriate to cite the following line of ancient Indian wisdom:

मन एव मनुष्याणां कारणं बन्धमोक्षयोः।

In essence, this line says that, for any individual, the only true source of harmony is his innermost being. Expecting to find harmony from the working of a huge bureaucratic system is like expecting to squeeze water out of a rock. Seeing clearly the issues involved, if one can persuade even a single friend, relative or neighbour from taking the path of misguided or vengeful litigation, that should count as a good deed done.

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We trust the reader has found much food for thought in these three points of view. We will be happy to hear from readers their own well-considered points of view, based on their own varied experiences in life. Shorter messages may be posted as comments, but we will also consider longer messages as possible posts on the blog.

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