Saturday 21 May 2011

TORTURE AND PREVENTIVE MEASURES

Torture is widely spread across all continents but the methods adopted by the States are different. Some common forms of physical and physiological torture are: isolation, electric shocks, pulling out of teeth, burning with cigarettes or red hot iron bars, mutilations, sexual torture, mock execution, letting detained torture each other, pharmacological torture, etc. Torture is done to criminals, innocent people trapped by law enforcement agencies, spies, prisoners of wars, refugees, opposition leaders, journalists, leaders of ethnic minorities and others including their family members, both adult and children.[1]
          The Convention Against Torture and other Cruel, Inhuman or Degrading treatment or Punishment defines ‘torture’[2]as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or, other person acting in official capacity. It does not include pain or suffering arising only from, inherent or incidental to lawful sanctions.
          Torture is an atrocious violation of human dignity. It dehumanizes both the victim and the perpetrator. It is a crime against humanity.
Incidents of torture

          Torture is widely spread in the prisons across the country. The latest event of the torture and death of a PWD engineer Manoj Kumar Gupta by a MLA[3] in Uttar Pradesh is just the tip of the iceberg.
          Torture was widely practiced during the 1975 emergency.
          Custodial violence and torture are frequently practiced in prisons as well as the police lock ups.
          The National Human Rights Commission in its annual report of 2001-2002 recorded 1307 instances of custodial deaths in India, 165 of these took place in police custody and the rest in judicial custody.[4]
          Peoples Union for Democratic Rights, a Delhi based NGO, reports that a number of cases don’t have a record of arrest (arrests made without warrant) and in cases of custodial deaths, the body is disposed off denying detention.
          Torture is done to criminals, innocent people trapped by law enforcement agencies, spies, prisoners of wars, refugees, opposition leaders, journalists, leaders of ethnic minorities and others including their family members, both adult and children by those in power. It is used as a political weapon for obtaining confessions and sometimes for destroying evidence.
          Torture is often justified by saying that there exists a public emergency or an order of the superior officer by those who resort to it. But torture and other cruel treatments are inhuman in nature and cannot be justified on any ground.

Preventive measures


          The various steps taken at both international and national levels to curb torture are as follows:
(a)  International
A number of international instruments gave protection to all people from torture and all other forms of cruel, degrading and inhuman forms of treatment and punishments.
(1)  The Universal Declaration of Human Rights, 1948
Article 5 of the Declaration provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
(2)  The International Covenant on Civil and Political Rights, 1966
Article 7 of the covenant gives protection from torture. It states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Further it states that in particular, no one shall be subjected without his free consent to medical or scientific experimentation.
(3)  The Convention Against Torture and other forms of Cruel, Inhuman or Degrading Treatment or Punishment
The General Assembly adopted the Convention on December 10, 1984. It came into force on June 26, 1987.
Article 1 of the convention defines torture.
In its various provisions the Convention lays down the obligations of the State parties to prevent torture.
Article 2 Para 1 provides that each party shall take legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
Article 2 Para 2 provides that torture cannot be justified even in exceptional circumstances whatsoever, whether there exists a state of war or a threat of war, internal political instability or any other public emergency. An order from a superior officer or a public authority may not be invoked as justification of torture.
Article 3 provides that the state shall not expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subject to torture.
Article 4 Para 1 provides that each state Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitute complicity or participation in torture.
Article 4 Para 2 provides that each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
Article 5 provides that each state party shall take measures as may be necessary to establish its jurisdiction over the offences committed in any territory under its jurisdiction or on board a ship or aircraft registered in that state. States shall establish their jurisdiction over the alleged offender when he is a national of that state or when the victim is a national of that state if that state considers it appropriate.
Article 7 provides that the state party in the territory under whose jurisdiction a person alleged to have committed an offence is found shall submit the case to its competent authorities for the purpose of prosecution.
Implementation procedure
(1)  Committee Against Torture
Article 17 provides for the establishment of a committee consisting of ten experts of high moral standing and recognized competence in the field of human rights. It was established in 1987.
(2)  Inter state Communication system
             Article 21of the convention lays down the procedure for the inter state communications in cases of torture.
(3)  Individual’s communication system
Article 22 of the convention provides for the individual’s communications.
A special rapporteur on torture was appointed by the Commission on human rights in 1985.
Optional Protocol On Convention Against Torture
An optional protocol on convention against torture was endorsed by the Economic and Social Council to the General Assembly on December 18,2002.
(b)  National
The various preventive measures at national level are:
(1)  Legislative measures
(i)                The Constitution of India
Article 21 provides that no person shall be deprived of life or personal liberty except for in accordance with the procedure established by law.
Article 22 lays down various measures to be taken in cases of arrests. Clause (1) to Article 22 states that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
 Clause (2) to Article 22 states that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary  for the  journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the set period without the authority of a magistrate.
Article 300 lays down the provisions of the tortuous liability of the State.
In Rudul Shah v State of Bihar[5], the Supreme Court awarded Rs. 35000 as compensation against the State of Bihar to the petitioner because he was kept in jail for 14 years after he was acquitted by a criminal court.
In Saheli v Commissioner of Police[6], the state was held liable to pay compensation to the mother of the deceased who had died because of police beating and assault.
In Nilabati Behera v State of Orissa[7], the court awarded damages in case of police custodial death.
(ii)             The Evidence Act, 1872
Section 25 of the Evidence Act provides that no confession made to a police officer, shall be proved as against a person accused of any offence.
(iii)           The Code of Criminal Procedure,1973
(a)Right to know the grounds of arrest 
Section50 (1) provides that in cases of arrest without warrant the arresting officer shall communicate the grounds of arrest
Section 75 provides that the police officer or other person executing a warrant of arrest shall notify the subject of it to arrested and if required show him the warrant.

(b)Information regarding the right to be released on bail
Section 50(2) provides that where a police officer arrests without warrant he shall inform the person arrested that he is entitled to be released on bail
(c)Right to be taken before a magistrate without delay
Section 56 provides that the arrested person should be taken before a magistrate having jurisdiction in the case without any unnecessary delay
(d)Right of not being detained for more that 24 hours without judicial scrutiny
Section 57 provides that the arrested person must be brought before the magistrate or court within 24 hours
(e)Right to consult a legal practitioner
Section 303 provides that any person against whom proceedings are instituted under this Code may of right be defended by a pleader of his choice.
(f)Right to be examined by a medical practitioner
Section 54 gives the accused the right to have himself medically examined to enable him to defend and protect himself properly.

(2)  Law reforms
The Law Commission of India in its 113th Report on “Injuries in Police Custody” published in 1985 proposed amendment in the Evidence act, 1872 in the form of addition of a new section, section 114-B, providing for the court to take into consideration the injuries on the body of the accused and his statement as to how they were produced and the period of custody.[8]
(3)  Judicial approach
The Supreme Court of India as well as the various state High Courts have taken an active part in protecting the rights of the arrested persons.
In the case of Joginder Kumar v State of Uttar Pradesh[9], the Supreme Court has held that the arrested person is entitled to have one friend,relative or other person told that he had been arrested and an entry to be made in the diary as to who was informed of his arrest.
In the case of D.K. Basu v State of West Bengal[10] , the supreme court has laid down various precautions to be taken by the arresting authority to ensure that there is no custodial violence or torture in police lockups. The court laid down the following guidelines:
(i)The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate ,visible and clear
identification and name tags with their designations .The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(ii)That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made .It shall also be countersigned by the arrestee and shall contain the time and date of the arrest.
(iii)A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or have a interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or relative of the arrestee.
(iv)The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(v)The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(vi)An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has bee informed of the arrest and the names and particulars the police officials in whose custody the arrestee is.
(vii)The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(viii) The arrestee should be subject to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by the Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(ix) Copies of all documents including the memo of arrest, referred to above, should be sent to the ilaqa Magistrate for his record.
(x) The arrestee may be permitted to meet his lawyer during interrogation.
(xi) A Police Control Room should be provided at all districts and State Headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
(4)  Role of human rights commissions
The human rights commissions were established under the provisions of the Protection of human Rights Act, 1992. The Act provided for commissions at national, state and subordinate levels to study and monitor the instances of human rights violations. The commissions have played an important role in filing cases against the various authorities in order to prevent custodial torture. The national Human Rights Commission has also published its report on the instances of torture in the police custody.

Conclusion

          Every human being has a right to be treated with respect and dignity whether he is a free individual or one detained under any criminal law. However, the incidences of torture across the country and continents are very common.
Torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person; (b) the intentional, substantial curtailment of the exercise of the person's autonomy (achieved by means of (a)); (c) in general, undertaken for the purpose of breaking the victim's will.[11]
A number of steps have been taken at both the national as well as the international levels to curb the menace of torture and cruel treatment meted out to the prisoners. However, it can be seen that these measures have not been very useful in their object.
The prevalence of torture in numerous military, police, and correctional institutions throughout the world has taken place notwithstanding that for the most part it has been both unlawful and opposed by the citizenry.[12]
Torture is one of the most inhuman forms of treatment and there is need for curtailing it all levels and opposing it at every possible instance. It is required that more stringent provisions are made and implemented in order to curb this evil treatment.
Suggestions

          Though a number of provisions have been laid down the incidences of torture are still widespread across the nation as well as continents. In order to make these more effective the following steps may be useful:
(1)    The basic awareness relating to human rights and the knowledge that torture is the grave violation of individual’s rights and dignity should be spread widely.
(2)    The role of the various non government organizations in the control of torture should be recognized as well as increased.
(3)    At the national level, the policies laid down by the Supreme Court in the case of D. K. Basu v State of West Bengal[13] should be given legislative strength.
(4)    The various legal provisions providing for the human treatment of prisoners should be strictly implemented.
(5)    Committees at different levels should be established to look into the matters of human rights violations of the prisoners.
(6)    Strict penalties should be awarded to those resorting to torture and inhuman acts and treatments. Courts should also decide these cases rapidly.


[1] Human Rights by Dr. H.O. Agarwal at page 82
[2]Article 1

               [3] Times of India dated 24-12-2008
[4] http://lawcommissionofindia.nic.in
[5] AIR1983SC1086

[6] AIR1990SC513

[7] AIR1993SC1960

[8] http://lawcommissionofindia.nic.in

[9] (1994) 4 SCC260

[10] (1997)6SCC642

[13] (1997)6SCC642

THE JUDICIAL PROCESS AS AN INSTRUMENT OF SOCIAL ORDERING

    Introduction: The nature of judicial process

          The duty of the judge is to interpret and apply the law to the cases before him. When a judge decides a case, he does something more than simply applying a law, he interprets and moulds the law to fit in with the facts and circumstances of the case. According to Cardozo, while moulding the law, he may use the methods of philosophy, of history, of sociology or of analogy. He moulds the law so as to best serve the requirements of the society. The methods of philosophy, history, sociology and analogy are the tools using which a judge performs his duty. Using these methods, he fulfils his obligations towards the society which require him to give his view, his notion of law.
          The judge who moulds the law by the method of philosophy may be satisfying an intellectual craving for symmetry of form and substance. But he is doing something more. He is keeping the law true in its response to a deep seated and imperious sentiment. By the method of philosophy, the judge makes use of his own reasoning and standards of public good. Under this method, the judge makes use of his own inner sub conscious element and gives to the society his own notion of right and wrong, of just and unjust, of equality, fairness and justice.
          By the method of history, it is meant that the judge makes use of the past decisions. He follows the doctrine of precedent. He compares the case he has in hand with the past decisions and makes use of the one which most closely resemble with the one he has to decide. The doctrine of precedent is based on the principle that like should be treated alike and that there is stability and certainity in law. However, while dealing with the precedents, the judge has to distinguish between those which are liberal and beneficial for the future and those which are oppressive to the society. The judge has to choose those precedents which best serve the purpose of the society.
          According to Cardozo, the method of sociology demands that within the narrow range of choice, the judge shall search for social justice. The judge has to see that his work leads to the attainment of social order. He has to provide for the welfare of the society. The judge has keep the welfare of the society as the ultimate aim of his work. He cannot attempt an action which would not be beneficial for the society at large.
          By the method of analogy, it means that the judge makes use of the alien jurisprudences. It is a case where the judge borrows from other jurisprudences. While borrowing from other jurisprudences, the judge has to make use of the similarity in laws and prevailing social conditions of the region from where he borrows the provisions. The judge compares the case with similar problems in other regions. In the case of Bijoe Emmanuel v. State of Kerala[1], the Supreme Court of India made use of the law prevailing in other countries to decide the issue. In this case, the Supreme Court made reference of the similar cases decided by the courts in Australia and U.S.A. to deal with the special case of a particular sect.  
          For a judge, law is never static. It is dynamic and keeps changing. The judge has to mould it in accordance with the needs of the society. The judge plays a very dynamic role in shaping the law so as to best serve the society.
          The judge has to take care that the law is progressive and protects the interests of the society and is not oppressive and suffocating. The aim of judicial process is the attainment of social good. The judge has to see that the law helps the society at large and does not infringe the goals of justice and liberty.

Social order: the purpose of law


          There have been different approaches to law. According to Austin, law is the command of the sovereign. Bentham proposed his utilitarian calculus, according to which the aim of law is to bring about maximum good of the largest number. Bentham’s hedonistic calculus was based on the concept of social utility. According to Roscoe Pound, the purpose of law is social engineering. Law aims to achieve social good. The welfare of the society is the paramount consideration of law. Law aspires to end all social evils and to bring about social order.
Cardozo has stated that the final cause of law is the welfare of society. When judges are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance.
Law and society are interdependent and neither can be separated from the other. The good of the society is its greatest requirement. Law serves the role of protector of the social order. Law aims to attain the good and order in the society.
Social order is what the law aims to achieve. It is the ultimate object of all laws. Law has to provide social order in order to protect the society from disintegrating.

Role of judges in bringing about social order


          The ultimate aim of all law is to bring about social order. The judge is an important member of the legal institution. He plays an important role in shaping the law to serve the social interest. For a judge, law is never static.
          A judge is empowered to review the various provisions of law. He is an independent and impartial authority which can verify the reasonableness of a law. Being independent from the influence of the executive and the legislative machinery, a judge can form an unbiased opinion on any question of law.
          A social problem requires a solution and judges have the role of resolving disputes. While settling a dispute, the judge is also required to take into consideration the various social requirements. Amongst the various options being available before him, a judge has to choose the one which best serves the interests of the society.
          The welfare of the society must be the guiding force for a judge when he sits to perform his duty. His obligation towards the society is to fulfill the various social requirements of justice, order and security. He has to give the welfare of the society a paramount place while dealing with any issue. Being the interpreter of the society of its sense of law and justice, the judge has to be careful in his work as his decisions determine the rights and obligations of various members of the society and effect the people at large.
          The judge provides for social order during his job as an interpreter. The various ways in which he can provide for social order are by the methods of interpretation, supplying of omissions, suggesting and recommending changes and new regulations and also through mediation process. These are the techniques by which a judge brings about social order.
(a) Interpretation

          The judge is the interpreter of the community of its sense of law and order and therefore, he must supply omissions, correct uncertainities and harmonise results with justice through a method of free decision.
          While dealing with a case, the judge is required to apply law on the facts. While applying law he may be faced with a question of law which requires him to interpret the various legal provisions placed before him.
          While interpreting a statute, a judge can take either a literal approach or a liberal one.
          In literal interpretation, the judge sticks to the letter of the word and there is not much creativity in his job.
          Sometimes when a literal approach does not give a satisfactory result, that the judge goes for the liberal interpretation of the statute. In liberal interpretation, the judge makes use of his knowledge of various laws, the customs and his own creativity.
          One of the most important rules of interpretation is the mischief rule, in which the judge has to determine the mischief which the law had sought to make good. Using the mischief rule, the judge has to imagine and understand the problems in the society which required that a particular law be made.
          Another important principle in interpretation is that there a presumption of constitutionality of the statute. The judge has to presume that the statute is constitutional and the legislator had not intended to infringe the fundamental rights.
          Further, there is the rule of harmonious interpretation, which states that all the provisions are to be interpreted harmoniously so as to give meaning to all the provisions. The rule of harmonious interpretation underlines the principle that all the provisions of a statute are complementary to each other and are not mutually destructive. While interpreting a statute, the judge has to take care that he gives such an interpretation to the provision that when the statute is read in its entirety, there is no conflict between the provisions.
          The role of a judge as an interpreter requires great skill from his side. He is required to give such an interpretation to the legal provisions which best serve the interest of the society.
          While interpreting the legal provisions, the judge has to think what purpose, what end of the society his interpretation would serve. He has to take the interest of the society as the paramount issue. The statutes affecting the society at large require the most careful interpretation as the interests of a large number of individuals may be lying at stake.
          Thus, when a judge interprets a written Constitution, he has to take utmost care while expressing his view on the problem. The written Constitutions are generally given a very wide and liberal interpretation because they are the supreme laws of the land and all the other statutes owe their authority to the Constitution.
          Using liberal interpretation, in the case of Maneka Gandhi v. Union of India[2], the Supreme Court enlarged the scope of right to life to mean a dignified life and not just mere animal existence.
          While interpreting a law, the judge has to interpret it in a manner that it benefits the society at large.
(b) Filling up of blanks

          Sometimes a judge has to do something more than just simply interpret a statute. He may be required to correct all errors in it. He may further be required to fill in the missing blanks in a statute. It is not possible for the legislator to imagine each and every circumstance which could arise in the future. While interpreting a statute, a judge may be required to imagine what the legislator would have provided for that particular circumstance. When a judge starts to imagine what the legislator would have intended, he takes the place of the legislator. He has to act for the legislator, giving sense to the statute as a whole and making up what had been left behind.
          A judge cannot legislate infinitely. According to Cardozo, “He legislates only between gaps. He fills the open spaces in the law.”
          While interpreting any statute, the judge has to keep within the restraints laid down by the legislator. The role of the judge is not of legislating but of interpreting and applying the law.  It is during his job as an interpreter that a judge maybe required to fill in the missing blanks in the statute. However, while filling up the blanks, a judge has to take precaution that what he supplies to the law protects the spirit of the law and does not destroy it.
          A judge has to take care that he maintains the harmony between the various provisions of a statute. While supplying omissions, the judge has to protect and preserve the spirit of the law.
          According to Cardozo[3], “when the question is one of supplying the gaps in the law, it is not of logical deductions, it is rather of social needs, that we ask the solution.”
          Thus, in order to fulfill the needs of the society, the judge supplies the gaps in the statutes. However, the law making work of a judge is restrained as “He is not a knight errant roaming at will in pursuit of his own ideals of beauty or of goodness. He is to draw his inspiration from consecrated principles.”[4]




(c) Recommendations


          Often a judge may be required to give his recommendations or suggestions to enact the particular law which would serve the social need.
          A judge plays a very important part in social ordering when he lays down suggestions or recommendations regarding any social problem.
          Where the law is silent, the judge may be required to cross his bounds and take up the role of legislators. He may be required to give  suggestions in order to resolve certain social problems. These suggestions play a very vital role in satisfying the various requirements of the society.
          The public interest litigations play a very important role in protecting the interests of the society. By means of public interest litigations, the lawyers and judges attempt to eradicate certain social problems. Public interest litigations play a very useful role when the legislature and the executive fails to find out a solution for the existing problems. Public interest litigations are a recent creation of the courts by which they aim to provide the cure for the ills prevalent in the society. The judges are very instrumental in eradicating the social problems.
          The judiciary took a very active role while laying down the procedural requirements required while making an arrest in the case of D.K. Basu v. State of West Bengal[5]. In this case the Apex Court laid down various guidelines which are to be followed by the policemen while making any arrest. The reason behind laying down such provisions was that there were complaints of police atrocities in the police lock ups.
          Similarly, in the case of Vishakha v. State of Rajasthan[6], the Supreme Court again laid down guidelines for the safety of working women. In this case, the instances of sexual harassment of working women at their workplace were an issue. The Supreme Court laid down various guidelines to be implemented by the employer for the protection of the working women. In this case, the court even declared that the sexual harassment of the female employees amounted to the violation of the right to work and is discriminatory against them.
          In the case of Sarla Mudgal v. Union of India[7], while dealing with the problem of anomalies in different personal laws and people making use of these differences to defeat the end of justice, the Supreme Court had expressed a view that the uniform civil code  should be implemented. In  this
case also  the judiciary tried to provide for the social requirement for a uniform civil code which would take care of all the problems relating to the differences in the personal laws.
          The Supreme Court has also laid down certain rules to be followed when the adoption of an Indian child is made by any foreigner. The reason behind such recommendations was the presence of the menace of the use of young children in beggar and slavery. These rules help in protecting the child from economic, social, physical and sexual exploitation.
          Further, in the case of Association for Democratic Reforms v. Union of India[8], the Delhi High court and on appeal  the Supreme Court has given guidelines for cleansing of the electoral process from the impact of criminals and wealth and bringing about electoral reform in India.
          Similarly, the courts have taken active parts in issues related to illegal constructions, anomalies in school admissions, ragging at university level( Lingdow committee report) and so on. The court had taken these steps in order to ensure social justice.
          The judiciary may be required to take up the role of legislators when the legislative fails to provide sufficiently for the social requirement. This act of judiciary is known as judicial activism. The judiciary has acquired its activist power from its review power. The judicial activism has played an important role in attaining social order as it satisfies the various requirements of the society.

(d) Mediation proceedings


          The social institution requires certain relationships to be protected and sanctified. In order to prevent minor problems developing into irresolvable issues, the judges take the role of mediators. The role of a judge as a mediator is a very recent one. Till date, judges used to solve the disputes. Now they try to prevent the disputes from arising. In cases of minor discords, the judges help in solving the issues before they take the form of major disputes.
          The judges suggest out of court settlement of disputes in order to prevent certain relationships from breaking down.
          In the present day society, judges suggest the use of mediation proceedings specially when the need is to protect an institution as sacred as the institution of marriage. Judges serve as the mediator in various cases to prevent a relationship from breaking down.
          The law mandates mediation and the courts encourage and endorse it. It is a cheaper, simpler and more productive manner of dispute resolution. It helps to restore the broken relationships and focuses on improving the future and not on dissecting the past.
          The benefit of mediation is that it is a voluntary process and both the parties are able to assess their case and come up to an amicable solution. The judges play an active role in encouraging and endorsing mediation proceedings.
Conclusion

          A judge is the interpreter of the society. He makes visible the various laws.
          While interpreting a law, the judge also corrects the errors present in the law, he supplies the omissions in the law. The main object of law is to bring about social order and the judges play an important part in attaining that objective.
          The judiciary has taken an active role in attaining social order and justice. To serve the purpose of the social utility, the judge had to play the part of the legislator as well. A role, which has been much criticized but is very important for fulfilling the needs of the society.
          A democracy needs a forum, other than the legislature and the executive, for redressing the legitimate grievances of the minorities- racial, religious, political or others. In India, at the present time, the Supreme Court is laying great emphasis on vindication of the rights of the poor and deprived people. The court has acknowledged this fact. Thus, in Punjab Rickshaw pullers’ case[9], the Supreme Court had stated that “Judicial activism gets its highest bonus when its order wipes some tears from some eyes.”
          Thus, it can be concluded that judicial process has a very active and positive role in social ordering.


[1] (1986)3 SCC 615
[2] .AIR 1978 SC 597
[3]
The Nature of the Judicial Process
[4] Cardozo,‘The Nature of the Judicial Process’ at page 141.
[5] (1997) 6 SCC 241
[6](1995)3 SCC 635
[7] AIR1995 SC 1531
[8]
AIR 2001 Del 126 and Union of India v. association for Democratic Reforms, JT 2002(4) SC 501
[9] M.P. Jain, 'Indian Constitutional Law', Fifth Edition at page 1557