MISCARRIAGE OF JUSTICE – By Janvhi Rastogi

Justice is one of the most important moral and political concepts. The word comes from the Latin word jus meaning right or law. The concept of justice has been a dynamic process. It has been revolutionised from ancient Greece to the present days. The definition of justice varied even more. Hence some scholars having diametrically opposite views to others. Indian concept of justice has also seen many changes due to change in the thinking and the mindsets of the individuals and the scholarly people. The concept of justice revolves around moral rightness based on law, ethics and rationality.

The Greek scholars related justice to ethics and values.  Cephalous believed that justice relates to the truth and the repayment of debt. Polemarchus defines it as to repay the society what it deserves. However the Sophist philosophy relied on the right of the mighty. Plato criticized all these concepts of justice and his ideology was that there is a natural inequality among men and introduced the system of class system and divided people into four categories: the ruling class, the military class, the producing class and other craftsmen. Every man has a specific function to perform and he should abide by it. . Aristotle, though influenced by Plato, differed from him in many ways. According to him, “Justice is a social virtue which is concerned with relationships between persons.”Justice alone is the good of others, because it does what is for the advantage of another’ Renaissance and Reformation were the two movements which have put emphasis on the realisation of justice. The Hindu legal system is embedded in Dharma as propounded in the Vedas, Puranas, Smritis and other works on the topic The word Dharma is used to mean justice (Nyaya), what is right in a given circumstance, moral, religion, pious or righteous conduct, being helpful to living beings, giving charity or alms, natural qualities or characteristics of properties of living. Justice or Dharma stood for the Varna system. This concept of Varna system is similar to Platonic concept of justice to some extent.

Everybody would agree to the point that justice plays an important role in our lives; but no doubt there is a flaw; hence it becomes important to find a system; all together a mechanism of justice so that the society function properly. Heaven will fall on the earth if the judicial system is able to handle all the cases.

In today’s world justice can be differentiated into 4 major parts basically- SOCIAL JUSTICE- many scholars conceive the term justice as social justice as it simply means that all people in the society are equal. There is no distinction on the basis of caste, creed, sex, religion etc. It means to relate each and every human action to morality. Untouchability, apartheid system have been scrapped as they are against the principle of social justice. ECONOMIC JUSTICE- it means that all the people have the opportunity and the means to earn their livelihood. The gap between the rich and poor should be diminished. Same salary or wages should be offered for the same work. Political justice means giving equal political rights and opportunities to all citizens to take part in the administration of the country. Citizens should have the right to vote without any discrimination on the basis of religion, colour, caste, creed, sex, birth or status. Every citizen should have an equal right to vote and to contest elections until and unless they have any criminal background or are of unsound mind. Legal justice has two dimensions-the laws formed should be just and then to do justice according to the laws. While making laws, the will of the rulers is not to be imposed upon the ruled. Laws should be based on public opinion and should adhere to the needs of the society.  Social values, morality, conventions, the idea of just and unjust must be always kept in view.

Of course when we have a solution to a problem then it has some pros and cons to it. Same is in the case of the mechanism of justice. Providing justice to the thousands of people in the nation has always been a tedious task as it requires a near to perfect system which is actually impossible to achieve. Since the subject of justice is very huge and diverse in itself proper division is necessary to allocate a solution. Hence the scholars dealing with the subject of justice have divided issues of justice into three broad categories. These categories are the following: DISTRIBUTIVE JUSTICE. It relates to the fairness of the distribution of something among several people or groups. Whatever is distributed or divided can be a benefit—such as pay for work, the right to speak or vote or to pay for taxes, household chores, or homework. CORRECTIVE JUSTICE. It concerns the fairness of the response to a wrong or injury to a person or group. Common responses include making a person who has wronged or injured another suffer some form of punishment i.e. to pay for damages. PROCEDURAL JUSTICE. Issues of procedural justice concern the fairness of how information is gathered and how a decision is made. For example, a person suspected of a crime might give information through careful, unbiased investigation or by torture. People making a decision might hear from all people interested in an issue, or make their decision without such a procedure.

Another grievous problem related to the mechanism of justice is miscarriage of justice. Justice, in a sense means that the good reap rewards and the bad reap punishment. Justice in loose terms can be defined as something like being “punished for a crime that was committed” and what if being punished for a crime not even committed by one? That is what can be understood as miscarriage of justice.

“The term ‘miscarriage of justice’ generally applies when a person is convicted of a crime but later their case is re-opened and their conviction is found to be ‘unsafe’. It occurs when a person is convicted and punished for a crime that he or she did not commit” (CATIE JUKES). Miscarriage of justice is a grievous fault in the judicial proceeding which can alter the life of the convict. It is not only limited to wrongful conviction but also include wrongful arrest, wrongful charges or inducements and wrongful sentences. They can also include harassment both physically and mentally by a law enforcement officer, an attorney failing to file a timely appeal or timely release of the prisoner after his sentence has been completed. However some miscarriages can be intentional while other can be unintentional or accidental as well. They are committed by sincere officers who are just performing their duties. While others can be venal in order to fulfil some personal and professional agendas.

This open bias of the criminal justice system is most visible in mob lynching. One of the examples of this is the decision of the Jharkhand police to write down the crime of the lynch mob that attacked Tabrez Ansari from murder to culpable homicide. Another instance that can be cited is the unlawful hanging of the terrorist Afzal guru. Afzal was hanged when he was unfit for hanging which is grave injustice. Moreover, he was hanged without even informing his family. The credit for this lapse can be given to the authorities whom you may call as the government.

Miscarriage of justice can be seen in both criminal as well as civil cases. But this is not the case. These kinds of errors take place and can ruin the lives. A wrongful finding of liability can lead to bankruptcy, ruined marriages, delayed retirement, and severe psychological problems. It can lead to wrongful removal of children from a parent. Conversely, it can lead people to live their lives in relative poverty or with a substantially diminished quality of life.

There’s no magic answer to this vexing problem. We must have some finality and certainty in disputes. It would involve a massive change to procedures involving expert witnesses. Judges must become better gatekeepers, for example, the lawyers should have more training for cross examination. Experts must be confined to give testimony only within the sphere of their expertise. By avoiding false and overzealous expert testimony, we’ll go a long way towards curbing miscarriages in civil litigation. But that’s not enough. We need to make a revolution in the whole judicial proceeding system to ensure speedy justice.

                                          

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