Khorakiwala on Judicial Iconography and Access to Justice in the Bombay High Court

Rahela Khorakiwala, Max Planck Society for the Advancement of the Sciences/Max Planck Institute for European Legal History; Jawaharlal Nehru University, has published Judicial Iconography and Access to Justice in the Bombay High Court at 7 Südasien-Chronik/South Asia Chronicle 351 (2017)

In this paper I argue that certain aspects of the judicial iconography of the Bombay High Court and its practices hinder access to justice. The idea of access to justice that I refer to, is the physical accessibility of the court building which is read through Franz Kafka’s parable on Before the Law. Further, the article focuses on the public interest litigation that has been filed in the Bombay High Court for the creation of a new high court building. Based on my ethnographic study, I look at the restrictions through the visual in the form of the dress worn by judges and lawyers and the ban on photography in court premises. In conclusion, I discuss the idea of law as heritage and how the Bombay High Court deals with its iconography in relation to its heritage and eventually, how this affects the process of access to justice.

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Sekhri on Police, the Third Degree, and Indian Courts: 1861-1961

Abhinav Sekhri, Delhi High Court, has published From 'Bully Boys' to 'Willing Servants': Police, the Third Degree, and Indian Courts: 1861-1961. Here is the abstract.

This paper examines the development of India's statutory and constitutional rules to forestall improper police practices designed to compel self-incrimination. Focusing on the period between 1861-1961, it describes how the judiciary consistently limited the potential of this legal framework to police the police. This was due to the choice of interpreting the rules as a means to ensure reliability of evidence, rather than as safeguards for defendants against police abuses. These widely-held judicial attitudes in colonial courts influenced the interpretation of independent India's constitutional ban against compelled self-incrimination as well. This paper attempts to explain why the Supreme Court chose to adopt a restrictive view of that protection, contesting its legal sufficiency but suggesting that, perhaps, that choice was forced upon a nascent Court which had to pick its battles.

Download the article from SSRN at the link.

Achieving Social Justice

De Somnath has published Right to Social Justice. Here is the abstract.

By social justice I mean the creation of a society which treats human beings as embodiments of the sacred, supports them to realize their fullest human potential. The concept of social justice is taken in its most comprehensive sense- the legislative, the administrative and the judicial. It is true that the preamble to our constitution uses the term "social justice" and Article 38. And in wider sense various fundamental rights somehow protects the concept of social justice in India. But beyond this neither the constitution nor any subsequent legislation provides the key to precise connotation of expression "Social Justice". So as right to social justice only some fundamental rights with the judicial pronunciation comes into picture. The Preamble declares and secure to all citizens justice, social, economic and political. The concept of social justice is a revolutionary concept which provides meaning and significance to life and makes the rule of law dynamic. In Keshawanand Bharti Case Supreme Court held that preamble is the part of the Constitution. The Constitution inscribes Justice as the first promise of the Republic, which means that State Power will execute the pledge of Justice in favour of millions who are the Republic. I mean to say Social Justice is People’s Justice where the tyranny of power is transformed into democracy of social good. The idea of welfare state is that the claims of social justice must be treated as cardinal and paramount. Social justice is not a blind concept or a preposterous dogma. It seeks to do justice to all the citizen of the state. In the Directive Principles, however, one finds an even clearer statement of the social revolution. They aim at making the Indian masses free in the positive sense, free from the abject physical conditions that had prevented them from fulfilling their best selves…. The essence of the Directive Principles lies in Article 38. In reality, the cry for "social justice" is a call for the State to do something to fix economic and relational inequities without any regard to a universal principle of justice. By describing justice in social rather than legal terms, our attention is immediately drawn to national problems that can only be fixed by a civil government with enough power to enforce its policies. So then, advocates of "social justice" believe that the State plays the major role in rectifying so-called social problems because they are national in scope. Justice and social order had a genetic role in moulding the Indian jurisprudence and notion of justice.If the rule of law and rule of life run close together, a jurisprudence where man matter will bourgeon there. The springs of social justice will arise then - only then.

Download the paper from SSRN at the link.