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Published : November 05, 2017 | Author : apslex
Category : Miscellaneous | Total Views : 438 | Rating :

  
apslex
Aishwarya Pratap Singh -. Civil Judge Lucknow U.P.
 

Social Context Adjudication-Relevance For Trial Courts

Object
The object of this article is to examine and emphasize the relevance of social context adjudication for trial courts and magistrates. "Social context"must not be ignored in adjudication, especially in an adversarial system where the judge is not an active participant of the judicial proceedings. India being unique in terms of diversity is also unique in terms of the inequalities prevalent in all systems: caste, religion, gender to name a few. It is in this context that "social context" judging or adjudication becomes all the more important.

The ‘ Preambular promises’ ofjustice, liberty, equality and fraternitygive the blue print of the type of society which ‘We the people of India’ resolved to give to ourselves. The Constitution provides a roadmap by weaving a pattern of rights and duties for establishing an egalitarian society based on the principles of fraternity and social justice. The statute books are replete with social justice legislations giving concessions to special classes and protection to the vulnerable groups, like minors, persons of unsound mind, juveniles etc. The judiciary from the top to bottom has been entrusted with the task of ensuring the proper implementation of not only social justice legislations but also social justice as a ‘constitutional norm’. While the superior Courts have admirably performed this task by pursuing ‘activism’ through PILs, writ jurisdiction, constitutional tort,the trend has to be followed and strengthened by the trial courts as well,as these are the courts of first instance and the foundation of the entire judicial hierarchy.

‘Social context’ must be used as a tool of adjudication by the trial courts, and their approach must be guided by the social realities, not ignoring the sex, financial status and the strata of society to which the parties belong. The Magistrates or Civil Judges can be termed as the‘captains’of the judicial system as litigants normally have their claims decided by these first level courts and sometimes by Special Courts constituted under special legislations, presided over by District/Additional District Judges. The beneficial approach and constructive interpretation of the Constitutional Courts must inform and illuminate the approach and attitude of the trial courts as well. The judges must be‘sensitive’and‘compassionate’to the problems of the vulnerable and disadvantaged sections of the society, especially in an adversarial system like ours. Prof. Madhva Menon describes it eloquently:

"It is therefore, respectfully submitted that social context judging is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before Courts where unequal parties are pitted in adversarial proceedings and where Courts are called upon to dispense equal justice. Apart from the social –economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the judge has to be not only sensitive to the inequalities of the parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication."

The inherent inequalities in the adversarial system can be moderated to some extent if the judge is socially sensitive to the special needs of the vulnerable sections of the society. To illustrate:
§ While dealing with the applications of maintenance of destitute wives or hapless children or parents underS.125 CrPCor awarding monetary relief underS.20 Domestic Violence Act, 2005, the Court is dealing with the marginalized sections of the society. In such casespurposive interpretationmust inform the approach of the Court, and the Courts must be guided by the Constitutional vision of social justice, and be positively inclined towards such marginalized sections. The Courts must be pro active in their approach and such applications must be expeditiously dealt with.

§ The cases pertaining to senior citizens must be taken up on a priority basis, and their special need must be felt by the presiding officers, and there must be a genuine endeavor to decide such cases expeditiously.

§ If an extremely aged or ailing witness or an extremely poor witness (who would lose his/her daily wage) is to be cross examined on a particular date, then the Courts must take special care to ensure that they must not be sent back unexamined, and if at all due to extraordinary reasons the other party moves an adjournment then realistic costs must be imposed by the Courts mentioning the disability or special condition of the witness. This would ensure the confidence of the vulnerable classes in the Courts, that they are taken care of and not forgotten by the system.

§ Realistic costs must be imposed when adjournments are allowed, considering the losses suffered by the other party: lawyer’s fee, typing expenses, commuting expenses etc.
It is the duty of the trial courts throughout the country to translate the Constitutional vision of ‘social justice’ into reality by social context judging and being alive to the needs of the marginalized and vulnerable sections of the society. Society does not always demand changes in the law, or new laws, the need of the hour is change in attitude, approach and mindset of the judges.

End-Notes
Prof. Madhava Menon, on "Legal Education in Social Context".




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