Towards better Institutional Justice

The Kerala High court building is an amazing structure. However, it is not the building, but what happens inside the building that matters. We have some hardworking dedicated judges. We have several outstanding lawyers who try to keep the great legacy of the profession.

But the court as an institution is not meant for judges or lawyers alone. Ultimately the court is meant for the people.

The efforts of the judges to facilitate mediation and conciliation over disputes deserve appreciation. But the primary function of the court is adjudication and not mediation. Again, while facilitating mediation, peaceful atmosphere conductive to bilateral discussions and deliberations should be ensured. There should be preventive vigilance against any possible untoward incident during mediations. The alleged mental harassment of a woman in a sexual harassment case (The Hindu dated July 17, 2013) is a matter to be taken note of seriously. To quote Dr. Cyrus Das: “Justice is a consumer product and must therefore meet the test of confidence, reliability and dependability like any other product if it is to survive market scrutiny. It exists for the citizenry ‘at whose service only the system of justice must work.’ Judicial responsibility, accountability and independence are in every sense inseparable. They are, and must be, embodied in the institution of the judiciary.

(Judges and judicial accountability by Cyrus Das, Common Wealth Law Association, 2000. Quoted by T R Andhyarujina).

The principles equally apply to the process of mediation as well. It should rest on sound principles of tolerance, peace and institutional responsibility.

The litigants who want to contest and mediate should be equally accommodated. Their rights should be protected and safety ensured. There should not be any room for complaint from persons who are issued notices to attend the mediation. They should be treated as guests. There is a need to safeguard the interest of women particularly, for we live in bad times.

To quote Justice Dorab Patel (Pakistan) –“In the long run, the manner in which the judges and lawyers discharge their duties can build up public opinion and public opinion is better safeguard for the independence of judges and lawyers”-(Quoted by Fali S Nariman – “Before the Memory Fades”- Hay house, 2010, Page 86)- A lesson for us to learn and a slogan to carry on.

(The author is a lawyer at Kerala High Court)