Natural justice and law
PENUMBRA OF NATURAL JUSTICE: Tapash Gan Choudhury; Eastern Law House Pvt. Ltd., 36, Netaji Subhash Marg, Daryaganj, New Delhi-110002. Rs. 425.
SHYLOCK AND Portia, in Shakespeare's Merchant of Venice focus on the life and death issue of law versus justice. Dickens, in Oliver Twist, says: "If the law supposes that," said Mr. Bumble... ... "the law is a ass a idiot.'' regarded law an ass. An anonymous poet versified the law's bias against the poor victim and for the rich robber thus:
The law locks up both man and woman
Who steals the goose from off the common,
But lets the greater felon loose
Who steals the common from the goose.
Professor Gilmore of the Yale Law School wrote: "In Heaven there will be no law, and the lion will lie down with theLamp... In Hell there will be nothing but law, and due process will Be meticulously observed".
Winston Churchill, in a magnificent passage in his volume The Gathering Storm warned: "The letter of the law must not in supreme emergency obstruct those who are charged with its protection and enforcement. It would not be right or rational that the aggressor power should gain one set of advantages by tearing up all laws, and another set by sheltering behind the innate respect for law of its opponents. Humanity, rather than legality, must be our guide."
Why do I speak so harshly of Law? Because legality, in its literality, at times, egregiously ignores, even violently violates humanity. So it is that our Constitutional jurisprudence in its compassionate dimension, introduces "natural justice'' as a finer value to humanize and conscientize the terrorist tendencies of arid law. Austinian jurisprudence, with its emphasis on the sovereign's command and State sanction, gave room for a sociological perspective popularised in the U.S. by Roscoe Pound and influenced other systems of law, including ours.
Let me drive home my point by a quote: "To an ever-increasing audience it became apparent that the law was merely a form of social and economic expression, changing with the technology and process of society and to be understood in connection with the living tissue of which it was a part. In these circumstances, to the consternation of jurists brought up on the common law and `the eternal principles of justice'. There rose and flourished a new faith covered by the lugubrious phrase `social jurisprudence,' and promulgated by an authority no less distinguished than Roscoe Pound, dean of the Harvard law School.
Under this dispensation, it became fitting for students to inquire into the economic and psychological motives of those who made and interpreted the law, into the `actual social effects of legal institutions and doctrines,' and into the social forces that had produced the existing order and were bearing lawmakers, lawyers, and judges from timeless formalism into an endless development.'' (Chafee Zechariah, quoting Charles A. & Mary R. Beard's The Rise of American Civilization, 141 Harv. L. Rev. 269-1927).
Jurisprudence, in its finer functional role, fulfils itself by compelling law to accept natural justice as a civilised component. Some jurists and many lawyers, belonging to the conservative school, thought that natural justice in its ever-expanding application was the invention of avant-garde jurisprudents. This is wrong since the origin of natural justice has been traced even to God when he commanded Adam and heard him before taking punitive action. The soul of natural justice is fair play in action, or as Justice Stewart put it: "Fairness is what justice really is.'' To avoid the travesty of injustice, natural justice has occupied the field effectively after Ridge v. Baldwin in Britain and through a series of progressive rulings, India has acclimatized natural justice as a pervasive principle beyond defiance by the executive or other State edicts.
The publishers have brought out the second edition of Tapash Gan Choudhury's book.
While appreciating their sense of justice in bringing out this excellent book, I must congratulate the author for the good job he has done in exhaustively dealing with the important subject of natural justice and unfolding every new facet of this lovely horizon expanding with each passing day.
What is justice? This question has been asked from the days of Socrates and continues to be answered by dynamic judges who have the comprehension of the dialectics of social development. While paging through the book I discovered, to my surprise, reference to a ruling of mine way back in 1970 as a junior judge in the Kerala High Court. Of course, later pronouncements from my pen on the Supreme Court bench have been referred to, even like more learned rulings by a number of my great colleagues, including Justice Bhagawati. Indeed, it would verge on vanity if I dwell at length on the contributions made by the Indian judges of the Summit Court far nobler than humble me, since I also figure in that luminous list. Time was when judges were struggling with "quasi-judicial functions'' and "duty to act judicially,'' with "executive action including civil consequences'' and what not. There were so many its and buts and nicer distinctions woven by lawyers who revelled in the mystiques and nuances of law but untouched by liberalised legal philosophy. Indian lawyers like their "learned friends'' across the Atlantic also have myopically fought to win many a legal battle, mindless of losing a social war. I have no doubt in my mind that winning or losing a case apart, a lawyer can and must develop and illumine higher jurisprudence so that it may perform its true function of making law an instrument of justice and using natural justice as a remarkable facilitator of the delivery of what is due to the humblest in the land.
However, Choudhury's successful exposition of the law of Natural Justice has gone a long way in making the court a great sound institution for the stability of society and instrumentality of a contented community.
I deeply appreciate the chapter on Judge's code on ethics, a subject that has taken much space in the book and will wisely affect the thinking of the Judiciary and parliament.
This sensitive subject judges' code of ethics dealt with by the author from the angle of public confidence in judicial authority, is sure to catch the attention of the community and the profession in due course.
This book awakens the consciousness of jurisprudents of all that has been said on natural justice and all that is likely to be relevant in the days to come in the courts of law.
V. R. KRISHNA IYER
Send this article to Friends by