top of page


by S.D. Dave

The State

This series of essays is an effort to understand and appreciate the concept of a Sympathetic Justice Delivery System (JDS).

The JDS of any democratic country ought to constitute five components:, the State; the Law; the Judges; the Lawyers and the Litigants, working in their own fields, discharging the duties cast upon them, each different from the other whilst ultimately creating a cohesive machinery capable of dispensing justice. Each must function in tandem and with regard and respect for the other in order to ensure cohesion and continuity.

None of the five components can be undervalued or bypassed with a lesser understanding of it. Whenever they have been found acting in such an exclusive culture, their actions are found to be coupled with the disjunction of the institution of which they are a part.

In this four-part series, the focus will first be upon the State as a component of the JDS. The preference for purposes of study must first be allocated to the State for a variety of reasons. A democratic Country following the Doctrine of Separation of Powers in spirit, without saying so, is an important limb saddled with multiple obligations in a number of fields. It is within the responsibilities of the State to retain its integrity and sovereignty in the midst of competing claims being made by other powers and to provide its people with a stable and self supporting governance and ultimately to secure for them, a living and progressive society, less and less amenable to conflicts and insecurities. The State has to strive for better life living for the citizens and to secure the socioeconomic development of the country. Furthermore it is the State that provides support, help and administrative assistance to the other components. These are some of the justifiable reasons for dealing with the State as a component, before others. A final aspect on the matter of prioritizing the discussion on the State is with regard to the role of the State as the ultimate protector of the rights of the rights of the people and the maintainer of peace and equality in the society. All the prosecutions are in the name of the State and at the same time, the State is always under a statutory obligation to provide for the legal assistance to the persons being prosecuted by the State itself, before the Courts of Law.

Formation of the Three Institutions

Aristotle (384 – 322 B.C.) in ‘The Politics’ describes the three organs as the Elements. They are Deliberative, the Official and the Judicial. Thomas Hobbs (1588 – 1697) appears to be propounding the very same theory, though not in clear and easily appreciable words, in his three works ‘The Elements of Law’ (1640); ‘Decive’ (1642); and ‘Levithan’ (1651) where there is a Sovereign, and the Public Ministers meant for general as well as special administration, but some Ministers while in their Seats of Justice, representing the Sovereign, would decide the controversies of Facts or Law by their Judgments. John Locke (1632 – 1704) speaks of two powers, only the Executive and the Legislature.

Charles Montesquieu (1689 – 1756), not agreeing with any of the three, propounds the theory of fear, where societies under the fear of inter se wars would recognise an Institution called ‘Government’, with a later development of the Doctrine of Division of Powers, the State being the main component. Jean-Jacques Rousseau (1712 – 1778) advances the theory of ‘The Social Pact’, where the societies under the fear of war, would bind themselves by certain Rules to be legislated and interpreted by ‘The Tribunate’. All this thinking has resulted into the formation of the three Institutions, the Executive; the Legislature; and the Judiciary. A Sympathetic JDS A Sympathetic JDS is a sine qua non for any democratic country, which believes honestly and sincerely, in upholding the Rule of Law as envisaged in its Constitution and in granting all its citizens the rights and liberties enshrined in it, without fear or favour, prejudice or bias. This objective cannot be achieved, in absence of an easy Access to Justice, which ultimately could result into a socio-economic structure of the society. But again such an access is of no avail, if all the components of the JDS are not sympathetic to each other, especially to the litigants. The term ‘Sympathy’, having its roots in Greek and Latin, a combination of two words ‘Sun’ (with) and ‘Pathos’ (feelings), means the understanding of the feelings of others. A sympathetic approach cannot be cultivated unless a person or a group thereof, understands the feelings of the other components. Understanding of the feelings of others with whom they are connected, whether in the family, in the society or in any institution where one is working, enjoys a place of priority because the society lives on with the basic principle – “Live and let others live”. History has witnessed destruction of civilizations resulting from non-understanding of the feelings of others. On the other hand, understanding and respecting of the feelings of the fellow men have been helpful in creating a peace loving polity, where despite the differences, the people have been able to coexist without acrimony and to make all the possible efforts to achieve progress in different directions. This understanding of the feelings of others is a much-needed environment for the creation of the Sympathetic JDS. Before a JDS can successfully claim to be sympathetic, its five components, the State; the Law; the Judges; the Lawyers; and the Litigants, each having a each having a sympathetic understanding of the other, in fact, acts with this wisdom. Role of the State The State, as the first component, performs more than one role. It is up to it, to establish a sound JDS not only by creating the whole order, including sufficient number of Courts with the infrastructural facilities and the appointments of the Judges to man them, who appreciate and construe the laws and make them enforceable by their verdicts, remaining within the limits as prescribed by the Constitution, which, though not expressly indicating the adherence to the Doctrine of Separation of Powers, leans heavily towards it. This would be the first step towards the establishment of a sympathetic JDS. Enactment of Laws is not as simple as it appears to be. It is the lawmakers that make the Laws, but the political which sets the machinery in motion, and to do so effectively, the State must for doing so the State must be aware of the needs of the changing society, especially when the Indian Constitution guarantees Equality before Law and Equal Protection of under Articles 14 and 15. Equal Protection implies the right to claim and achieve equal treatment, while situated in similar circumstances. The questions would be; how can you provide equal treatment to the un-equals? And would it survive the judicial scrutiny? These questions stand duly answered by the Supreme Court in Case of Reserve Bank of India v. Peerless General Finance and Insurance Company Ltd. [(1996) 1 SCC 642] by laying down that the treatment which appears to be leaning towards the un-equals is not liable to be struck down as discriminatory unless there is a simultaneous absence of a rational relation to the object intended to achieve by the law. The other related question arises out of the same thought process. Would it be open for the State; i.e. the Executive and the Legislature; to recognise a classification and to work accordingly? The Supreme Court in Budhan Chaudhary v. State of Bihar [(1955) (1) SCR 1045] has said that what Article 14 prohibits is class legislation, and not a reasonable classification for the purpose of legislation. Article 13(1) and 13(2) of the Indian Constitution, mandate that the pre-Constitution Laws would be void to the extent to which they are inconsistent with the Fundamental Rights, and that the prospective legislation should not be such as either taking away totally or abrogating them in part. The State should be aware of the fact that these constitutional essentials are required to be observed while initiating the law making process, which would ultimately help in building a sympathetic JDS. The State, as a keeper of law, is the authority to prosecute the offenders. This requires honest and sincere investigation by the authorised agencies, the ultimate aim being to penalise the guilty and to safeguard the sufferers. Here is the scope for the State to be sympathetic to both the components so as to avoid, not only injustice but unnecessary delay and hardships also, which are conspicuous at every stage. Connected therewith is the duty of the State to establish and maintain the prisons which would allow the prisoners to live with human dignity and seize the opportunities for their reformation so that, when free they can live the life of responsible citizens. The same applies equally to the duties of the State to run Remand Homes and Shelter Houses. The Probation Officers also should be discharging their duties sympathetically. All this would be a step forward. There are yet other avenues open for the State, to be sympathetic to the litigants. The State, as said by Sir Thomas Holland (Holland on Jurisprudence. 13th Edition by Universal Law Publishing Company Limited. Pages 387, 388 and 389) is a great Juristic Person having many Quasi Rights against individuals and Quasi Duties in their favour, and irrespective of the Doctrine of Eminent Domain, is a great landed proprietor having a right of servitude over the estates of the individuals, and subject to that, has to act for the benefit of such estates. Hence the State is supposed to be sympathetic to the Subjects, by not assisting the nonservitude causes. The State is one of the biggest litigants and is entitled under Section 80 of the Code of Civil Procedure (of India), to a two months notice before instituting the suit, granting an opportunity to amend the State action. The State can also be a consenting party for the settlement of disputes outside the Courts, as contemplated under Section 89 of the Code. Thus, the State by rendering just and bona fide services in time and by adhering to their statutory powers and duties can minimise litigations in the over-flooded courts, and the costs of litigation to the litigants and the State as well.


bottom of page