Allow concept of ‘palm tree justice’

by Saurabh Malik

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The courts need to allow the concept of “palm tree justice” to grow and branch out in different spheres of law.

In a justice delivery mechanism that largely runs on interpretation of the statute and the rulings passed by superior courts, judgments tend to replace justice in at least some of the cases with the courts inflexibly insisting on adherence to the technicalities or working well within the set boundaries of law.

For a mechanism, almost any mechanism, to run smoothly, it is fundamental not just to stick to the mechanics of it, but also for a discerning mind handling the system to assimilate the finer technical aspects of it for its better functioning.

But justice delivery mechanism is not just another instrument. It is certainly not a mechanical function that churns judgments. To reduce it to the same would mean permitting justice to be lost in flow of judgments.

A democratic setup certainly does not encourage “To do a great right, do a little wrong” concept of justice. But the system has the scope of ignoring little harmless wrongs, primarily technical in nature, for doing a great right principally when the courts are dealing with not just public interest litigation, but also social legislation.

The ultimate objective of any law, ruling or legislation is justice. It, in fact, requires more than just interpretation of laws within the parameters set by the law. It essentially means application of mind that may, at times, require detachment from the technical and established aspects of the legal apparatus to come out with more than just rulings for the purpose of achieving justice.

The powers of the courts are well defined under the Code of Criminal Procedure and the judges cannot act beyond the four corners of law. But the judges sometimes need to transcend the boundaries they have set up for themselves through laws and legislations for doing exactly what the laws and legislations were enacted for. This is precisely the reason why 

the concept of palm tree 

justice needs incorporation in the legal system.

The concept more often than not is dismissed by legal luminaries as capricious, subjective and unprincipled variety of justice brought about by excessively liberal application of legal principles. The notion, perhaps, has its root in its etymology. The dictionary meaning of the phrase suggests the concept comes from old Arabic or Jewish idea of a wise man dispensing justice under a palm tree.

But it is not arbitrary application of rules of law to justify a predetermined end. It is, rather, a practical and realistic move towards justice that is wholly discretionary and has the unending capacity to travel beyond legal rights or precedents. It helps the court to come out with orders that in its considered opinion are fair and just in the given circumstances of the case.

To say that a judge has travelled beyond the scope of the petition while ensuring welfare of the deserving by transcending the set parameters would mean demeaning the concept that aims at providing justice beyond law.

The concept projected itself in the Indian legal system only recently, when the Punjab 

and Haryana High Court allowed a man to provide rice, ghee and clothes to wife as maintenance. The man, who had lost his job, had told the High Court that he could not provide monetary assistance to his estranged wife and submitted he was ready to provide foodstuff and garments. The Bench then directed the petitioner to provide the articles to the wife within two days.

Any insistence of providing monetary assistance alone at that point of time would have meant binding the husband down to provide something that was not within his means at that stage. The courts need to be liberal to construe law, not as it is, but as it ought to be.

Law and Order

Not-so-friendly neighbours? Call police

The Punjab and Haryana High Court has come out with directions that would enable people in Punjab, Haryana and Chandigarh not just to sleep peacefully, but also carry out daily daytime routine without noise adding to the din of existence. Among other things, blowing of horn has been banned in the residential areas between 10 pm and 6 am. A blanket ban on the use of loudspeakers 15 days before and during the course of annual examinations has also been ordered. Harassed residents now have the option of calling up the police for action against their not-so-friendly neighbours.