The war's oil shock reached the ration shop and the auto-rickshaw this fortnight, and it is the unorganised poor, as it always is, who will carry the cost of a catastrophe they had no hand in choosing. I write not about the price of crude, which others in these pages track better than I could, but about what a hard year does to a people who must depend, for every right they hold, on the behaviour of the State's machinery: the clerk, the officer at the counter, the court at the end of the road. It is in exactly such a year, when a family has no cushion left, that the failure of the justice system to deliver righteousness stops being an abstraction and becomes the difference between a household that survives and one that does not. Watching it, I am reminded why the thinkers we have filed away under the mild heading of philosophy were, every one of them, political figures of the first rank.
When we go through the great works of the men we call spiritual leaders and philosophers, what astonishes is not their piety but the depth of their concern for the ordering of society, the care with which they groomed a vision of a better tomorrow, and nowhere is this plainer than in what they demanded of justice. In "The City of God," Saint Augustine set down a claim that reads today like theology and was in truth a political programme: that righteousness must be delivered unto the judgments, that a court exists not to conduct a trial but to render what is right. With that single demand he sought to change the entire delivery system of justice, to subordinate the machinery of the State, in any proper democracy, to the one thing the machinery is for. A man who says that is not a mere philosopher retired from the world; he is a political figure legislating for it, and we mistake him, and ourselves, when we shelve him among the contemplatives.
In the modern world disputable rights are distributed by trials and judgments, and the advocate asks for a ruling on the evidence, on what can be proved beyond reasonable doubt, and this is the whole of our present criterion. It is a necessary criterion and I do not scorn it. But it has quietly become the master rather than the servant, so that the procedural law now rules over the substantive law it was written to serve, and due procedure is made hard enough to suppress the ordinary applicant, to oppress him, and at last to depress him past the point of hope. When a man discovers that the delay of his justice will outlast his own life, he is compelled to the bribe, and the department that holds his essential service, interpreting the law and even the Constitution through the officer at the counter and the political connection standing behind him, is handed an unbridled power to make a mockery of the very Constitution it invokes.
Consider the law we wrote to end corruption. Under the Prevention of Corruption Act the giver of a bribe is made liable equally with the taker, and at a glance that is even-handed and just. But no poor citizen gives a bribe by choice; he gives it because he is compelled, because the file will not move and the service he is owed is held hostage, and, being himself made punishable, he dares not afterward disclose the fact. So the giver's liability becomes the taker's protection, and the Act written to prevent corruption becomes, in its daily working, an Act for the preservation of it. Righteousness would lift the giver's liability wherever the giving was compelled, and free the only witness the system has; procedure, untroubled by righteousness, keeps him silent and calls it fairness.
The pattern repeats wherever one looks. The anti-defection law, the fifty-second amendment to our Constitution, was meant to punish the betrayal of the voter's mandate, and yet it provides that when two-thirds of a party's members cross the floor together the defection is valid, so that the value system on which the citizen cast his vote becomes, at a stroke, no one's concern. Or take the free pass extended to all women who travel on the State's buses, the affluent and the poor alike, which at a glance is generous and on inspection is a diversion of the State's finance to the comfortable, spent on those who did not need it out of a fund the poor of India did. Each of these is perfectly legal. Not one of them is righteous, and the court, pleading its reluctance to trespass upon the legislature's power, rarely intervenes.
I will not pretend the other side has no case, for it has a grave one, and it is the case of every honest lawyer. The evidentiary standard and the due process I have been complaining of are not the enemies of justice but its hard-won safeguards: they are what stands between a citizen and the naked power of the State, what forbids a judge to convict upon his private conscience, what shields the accused from the mob and the unpopular from the powerful, and a court that dispensed with proof in the name of righteousness would very soon be a tyranny wearing righteousness as its mask. All of this is true. A system that had procedure and nothing else would be cold, but a system that had righteousness and no procedure would be terror, and I am not calling for the second in my impatience with the first.
But the safeguard was made to serve the outcome, not to supplant it, and the corruption Augustine warned against is exactly the moment when the procedure forgets that it exists to deliver a right result and begins to treat the faultless completion of its own steps as the result. A judgment arrived at by immaculate procedure, which nonetheless punishes the compelled giver and shelters the taker, which lets the defector keep the seat the voter never gave him, which spends the poor man's share on the rich man's comfort, is null and void in its essence however valid in its form, because it has produced everything a judgment can produce except the one thing a judgment is for. Righteousness is not an ornament fixed to the machinery of justice once the machinery has run; it is the purpose the machinery was built to serve, and a court that has the machinery and has mislaid the purpose is not a justice system but a convincing imitation of one.
So I would read the thinkers we call philosophers as the political figures they were, and Augustine first among them, because each of them pressed upon the legal order the only question that finally judges it, which is whether it delivers what is right to the least of those who stand before it: the unorganised, the man who toils from morning to night for his bread and is made to wait, and to pay, and to lose. In a gentle year the failure to ask that question is an injustice the poor absorb in silence. In a year like this one, with the shock in every price and no margin left to absorb anything, it is closer to a sentence. It is high time we measured our laws and our judgments not by the faultlessness of their procedure but by the righteousness of what they deliver, and to whom, aiming, as Augustine insisted a court must, at the justifiable welfare of the people, by and large, for everyone.