A SENSE OF JUSTICE
If law is the means then justice is the end. Much less to say that it’s the end that defines the means.
What is natural justice in a common parlance is the question that is to answer what in fact is the term ‘a sense of justice’ means.
Natural justice in best of its sub-normality means ‘common sense justice’, justice that favours and conforms to human conscience. To define what natural justice is-- Is the most easy of task but to define its extent is very difficult.
Law is ever changing, it develops with society and withers down with it, and so is the case for principles of natural justice. As the adage goes: Customs have the force of law, statutory laws many times in derogation with customary laws have to settle themselves becoming merely dead letter laws, that is, law only on papers but not in force. This is so because such statutory laws do not confirm to the consciousness of people in some sense of the term.
However much less to say, customary laws lose their imprint over a passage of time with the development of society (if such customary laws were anarchic in some sense). So here by we can say that it is the ‘will of the people’ that is the prima facie governing factor and henceforth to say that principles of natural justice in some sense of the terms define ‘the sense justice’ because they range so close to human conscience.
Principles of natural justice are more than the sacred terminology of what we call ‘justice, equity and good conscience’. Equality and fairness are virtues of natural justice. As Justice Krishna Iyer says, ‘Natural justice is virtue of virtues and not merely a sense of righteousness or wrong. It has being in existence since humanity came about in existence and is supposed to remain in existence until humanity continues to derive its existence-- because they enthral their existence not from pen and paper but from human psyche in its purest form.’
Broadly speaking law is either procedural or substantive and laws derive their existence from customs, precedents and legislature (as sources of law).
Law is a child of human thought and human conscience is mother of human thought henceforth—
Prof. Bakshi further goes on to say that-- ‘a judgement is nothing but law in its final form in a given case, subject to facts and circumstance of that case, and any judgement given, generally speaking, cannot be in contrary to principles of natural justice’. Hence law abrogating the principles of natural justice must be rendered ultra vires. Such is the might of natural justice.
Lord Atkinson once said: ‘Might is Right. Law is might, justice is right but justice being ‘natural’ is mightier than might.’
Natural Justice and Latin legal maxims:
It is not a hidden truth that Latin legal maxims draw their existence from principles of natural justice.
‘Let one divide and the other choose’ or ‘He who seeks equity must do equity’ or ‘He who comes for justice must come with clean hands’.
‘Facts are more powerful than words’ or ‘Gross negligence is equal to Fraud’ or ‘An act done by me against my will is not my act’.
There may be some exceptions to the above stated maxims but the thing to be seen in accordance to the suitability of this essay is that, all these oblige and observe the spirit of ‘natural justice’ in all their form.
Principles of Natural Justice-- Substance over Form:
Justice Krishna Iyer is considered as the champion of Indian legal arena, much because the judgements he delivered stressed more on morality, fairness and equity than on the procedural or substantive law. He is often of the opinion (as expressed by him through his columns published in the Hindu) that lawyers can mould laws as per the needs of their case, but no lawyer in the world can mould morality or a sense of fairness. Henceforth Mr. Iyer advices the budding judges to get the facts of the case right and then weigh them in scales of natural justice—human conscience in its purest form, before colouring the judgement in substantive and procedural law.
The same is been shown by the Judicial Maestro in much of his judgements, whether to talk about the famous, Bangalore Water Supply case [1978 AIR 548, 1978 SCR (3) 207], which forever overturned the definition of the word ‘industry’, in an opinion expressed by Mr. Iyer about the judgement he so delivered, he said, to protect the oppressed from being oppressed is what law is all about, this is what natural justice calls for. Since then the word ‘industry’ is defined from a labour oriented point of view.
In Som Prakash Rekhi v. U.O.I [1981 AIR 212, 1981 SCR (2) 111], Justice Iyer governed by spirit more of morality & Justice, equity and good conscience overturned the definition of ‘State’ as expressed by Article 12, forever aligning the same in consonance with the spirit of fairness (which in fact is a by-product of natural justice). The focal point in this case was this line: ‘the power which is derived is not greater than that from which it is derived’.
Similarly in cases of death penalty, the substantive and procedural law of India says that it must be granted only in rarest of rare cases-- this is how the language of sec. 354(3), the C.R.P.C, 1973 goes. Cases which shock the consciousness of the court are the cases in which death penalty may be granted.
But what the natural right activist argue is that, law in its simplicity says ‘no one shall take what he cannot give’, if Court of law by its order cannot give life then in such a scenario it should stripe itself off from the power to take away life. This issue is often talked about in light of Article 21 of the Indian Constitution, right to life and personal liberty, which again is a culmination of the natural rights brigade.
Natural Justice and the Sense of ‘Rights’:
Natural justice claims of three rights: natural rights, neutral rights and civil rights.
Natural rights comes to a person by virtue of his existence, that is right to life & personal liberty, right to enjoy air, water and sunshine, right to grow and develop.
Neutral rights comes to a person by virtue of his being a citizen of a particular country, that is, right to state protection, right to benefit oneself from natural resources of a particular country, right to gainful employment, right to livelihood.
Civil rights have the basis of their existence in neutral rights, these are the rights conferred to an individual by virtue of his being a member of society, that is right to associate, recreate, and enjoy one another’s company.
Henceforth it will not be downright unfair to say that basis of all rights more or less, somehow rests in principles of natural justice.
Natural Justice in common parlance:
Ignoring the might of the timeless principles of natural justice, their broadness is narrowed down in present day context more or less in two forms:
1. No one can be a judge in his own case or ‘rule against biasness’.
(nemo judex in causa sua)
2. Right to be heard as a necessity of fair trial.
(audi alteram partem)
But principles of natural justice are farsighted enough to encompass almost anything to everything in law.
They are the means and ends encompassing all substantive and procedural laws.
Knowledge of law as substantive and procedural is important but is lame without ‘a sense of justice’-- the Natural Justice.
‘’ The Law locks up both men & women,
Who steals the goose from off the common.
But lets the greater felon loose,
Who steals the common from the goose.’’
--JUSTICE KRISHNA IYER.
(An extract from ‘Off the Bench’)
*Disclaimer: All thoughts and opinions expressed are reflection of author’s view on the particular subject that is subject to review in light of apt arguments. Efforts have been made to zero down all personal biasness. All criticism in all forms is most welcome. Author cherishes your prestigious reading. Regards: Shivam Goel.
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