chapter 5: Concept of justice

Justice: Access to Fair Justice and Fairness of Procedure

Article 20 – Rights Relating to Justice (Constitution of Nepal)

1. No one shall be detained without being informed of the reason for arrest.
2. Arrested persons have the right to consult a legal practitioner of their choice and to be defended. This consultation is confidential. (Exception: not applicable to citizens of enemy states)
3. Arrested persons must be produced before a judicial authority within 24 hours, excluding travel time. (Exception: preventive detention and enemy state citizens)
4. No one shall be punished for an act that was not illegal when committed, nor receive a harsher punishment than applicable at the time.
5. Everyone is presumed innocent until proven guilty.
6. No one shall be tried or punished for the same offence more than once.
7. No one shall be compelled to testify against themselves.
8. Everyone has the right to be informed of legal proceedings against them.
9. Everyone has the right to a fair trial by an independent, impartial, and competent court.
10. Indigent parties have the right to free legal aid according to law.

Article 21 – Right of Victims of Crime

1. Victims have the right to be informed about case investigations and proceedings.
2. Victims have the right to justice, social rehabilitation, and compensation according to law.

Distributive vs. Corrective Justice

• Distributive Justice: Involves proportional equality and distribution of goods based on merit, desert, or need. It's multilateral and applies to societal structures (e.g., taxes, property).
• Corrective Justice: Focuses on bilateral relationships, rectifying harm done by one individual to another, restoring the victim’s original position, and preventing wrongdoers from benefiting from their actions.

Key Distinctions:

• Corrective justice applies even if the victim’s prior position was unjust under distributive standards.
• Corrective justice requires the wrongdoer to restore the harm, even if others are wealthier or more capable.
• Corrective justice is about responsibility and rectification, not redistribution.

Application in Nepal:

• Distributive Justice involves legal frameworks addressing systemic inequalities.
• Corrective Justice is best handled in courts via bi-polar litigation for specific harms.

Existing Legal Framework for Distributive Justice in Nepal

Fundamental Rights

• Article 18: Special provisions for marginalized groups.
• Article 20(10): Free legal aid for indigent parties.
• Article 21(2): Right to social rehabilitation and compensation for victims.
• Article 25(2): Progressive taxation.
• Article 31: Right to education – free basic and secondary education, special rights for disabled and economically indigent citizens.
• Article 42:
  1. Right of marginalized groups to participate in State bodies based on inclusion.
  2. Special benefits in education, health, employment, etc., for indigent/extinct communities.
  3. Citizens with disabilities have the right to dignity, identity, and public service access.
  4. Farmers' rights to land, traditional seeds, and agro-species.
  5. Rights of martyrs’ families, conflict victims, and others for priority in essential services.
• Right to Social Security: Guaranteed for the helpless, disabled, children, single women, and endangered tribes.

Directive Principles

• Policies related to development, basic needs, social justice, and inclusion.

Judicial Activism

Definition: Judicial decision-making guided by personal views or public interest, often expanding the court's role beyond traditional interpretation.

Broad Definition: Judiciary actively protects fundamental rights and checks executive/legislative actions.

Theories:

1. Vacuum Filling: Judiciary fills voids left by legislative/executive inaction.
2. Social Want: Judiciary addresses unfulfilled social needs and the problems of the oppressed.
3. Separation of Powers (Montesquieu): Ensures liberty by keeping judicial, legislative, and executive powers separate.

Judicial Self-Restraint:

• Judiciary adheres to the text and legislative intent, and respects precedents.

Origins:

• Term by Arthur Schlesinger (1947), in Fortune Magazine.
• Marbury v. Madison (1803) established judicial review.

Key Case Laws in Nepal

1. Radheshyam Adhikari v. Cabinet Secretariat (2047 B.S.)
   • Locus standi requirement emphasized.
   • Public interest alone isn’t sufficient unless there’s a substantial interest.
2. Bal Krishna Neupane v. PM Girija Prasad Koirala
   • Recognized that all citizens have a stake in national economic and environmental matters.
   • Allowed broader public interest litigation.
3. Advocate Meera Dhungana v. HMG & Others
   • Recognized marital rape as a crime under the National Code.
   • Emphasized human dignity and bodily autonomy.
4. Yogi Narahari Nath v. PM Girija Pd. Koirala
   • Government’s lease of sacred land quashed.
   • Emphasized environmental protection as part of the right to life.
5. Surya Prasad Dhungel v. Godawari Marble Industries
   • Recognized the environment as integral to human life and established precedent for environmental rights.

Merits of Judicial Activism

1. Judges possess expertise for judicial review.
2. Judiciary acts as guardian of the Constitution.
3. Courts are less biased than legislatures.
4. Fundamental and minority rights are protected.
5. Preserves limited, accountable government.
6. Checks legislative/executive overreach.

Demerits of Judicial Activism

1. May violate separation of powers.
2. Can disrupt representative government processes.
3. Delays necessary policy implementation.
4. Turns judiciary into a “super legislature.”
5. Decisions by narrow majorities may impact the nation.
6. Risk of conservatism and inflexibility in changing times.
7. Judges may ignore the spirit of law, becoming overly rigid.