JUSTICE AND THE JUDICIARY

By Prof. S. VENKATARAMAN, B.A., B.L.

(Andhra University, Waltair)

“Man is born for justice,” said. Cicero. But what is justice? There is no more elusive or baffling term to define. One thing that can be predicated with certainty is that it excludes arbitrariness. The cartman in London who when asked to drive to the Royal Courts of Justice first expressed mystification and then, as enlightenment dawned, inquired of his fare, “Do you mean the law courts ?” was, no doubt, not a conscious cynic. But the old joke has a sting of truth. And the justice of the law courts may at times be a much different thing from the ideal virtue of Aristotle’s Ethics. In his Nichomachean Ethics, Aristotle distinguishes between natural justice on the one hand and legal or conventional justice on the other. He observes: “Natural justice is that which everywhere has the same force and does not exist by the people thinking this or that. Legal justice is that which is originally indifferent, but which, when it has been laid down, is not indifferent.” ¹ Legal justice according to him derives its force from being laid down as law, whether just or unjust, whereas natural justice derives its force from what is based on human nature everywhere and at all times. While, in his Rhetoric, Aristotle advocates appeal to universal law where the written law tells against a party, and appeal to positive law as against unwritten law whenever the former supports him, in his Politics, he definitely identifies justice with positive law. He said: “For justice is a political virtue; by the rules of it, the State is regulated, and these rules are the criteria of what is right.”

“Let justice be done, though the heavens fall,” is a time-honoured precept. But it would be difficult to postulate an objective definition of justice. Unrelated to political ideals. Legal theory may formulate political ideals in terms of justice. It cannot however provide any magic formula of justice which can state once for all what is just and what is unjust. Aristotle points out that justice demands equal treatment of those equal before the law. But it will be for each political order to prescribe who are to be treated as equals or otherwise. It is a function of positive law to state who is equal before the law. Matters like the status of armed forces and civil service, the civic and political rights of citizens and aliens, limitations on franchise, have great political and juristic significance and are indisputably and closely bound up with the political and social conditions of the period.

Justice as an idea can lay down nothing more than that generally equals shall be treated equally. To give this ideal a concrete content, the element of utility as a component in the concept of law is pressed into service. Broadly speaking, equality is generalisation and utility is individualisation. Justice in the concrete requires the striking of a just balance between individual and community. It has to achieve a synthesis of these two conflicting factors. Even the highly individualistic economic philosophy of Bentham recognised: “The principle of equality requires that, so far as may be, without taking away the inducement to productive Industry and frugality, the opulent few should be precluded from doing injury to the indigent many, by means of the power necessarily and properly attached to opulence.” ² It is in the imparting of concrete content to justice that political ideologies have in the past been a deciding and decisive factor. Lord Wright once observed: “Law is not an end in itself. It is a part in the system of government of the nation in which it functions, and it has to justify itself by its ability to sub serve the ends of government, that is, to help to promote the ordered existence of the nation and the good life of the people.”² Law is obviously concerned with a number of things, politics, economics, social life, ethics, etc. The ultimate direction given to it no doubt depends on the underlying political ideology, but the latter will have no significance if unsupported by solid social foundations.

The Soviet legal theory takes the matter further. Its approach to the problem of justice is different. According to it law call never be higher than the economic structure of society. It points out that while it is true that law not only reacts on economics but is also influenced by various forms of social consciousness, like religion and philosophy, it is economics that really dominates and must be dominant in the concept of law, because men must eat before they can theorise and the evolution of productive forces is the independent variable making possible a dynamic interpretation of society. The Soviet legal theory postulates that it is the inherent needs of the economic system that determine the framework within which legislation must operate and the needs it has to satisfy. Hence according to it, so long as there is a class society there is bound to be also class Justice. Apart from any individual or group bias due to social origin, traditions or education, the Judges will regard it as their duty to preserve the existing social order and its functioning. Another point brought out by the Soviet jurists is that in as much as law in the traditional sense secures the equality of all citizens, independently of their social origin, by generally enforcing its rules without regard to the actual inequality of the individual citizens as regards personal abilities and individual needs, the law ceases to be a desirable method for the ultimate organisation of social life. A different pattern of social regulation would therefore be needed which would differ from law in the traditional sense in content as well as in the mode of enforcement. Instead of being general the rules of law will take note of individual abilities and needs, and will be enforced not by a special organism separated from society through a division of labour but by public opinion. Also what is conducive to collective welfare should necessarily conduce to the welfare of the individual. So the task of justice will be to defend and safeguard society from all encroachments whatsoever and the courts of justice will be only for inculcating discipline. Naturally the Judges who can inculcate that discipline can only be those who are imbued with and believe in the particular pattern of social regulation. Courts of justice are therefore to be built (i) so as to enable every member of the population to take part in their functioning, (ii) so as to provide for Judges being elective, (iii) so as to make the Judges independent and subordinate to law only, (iv) so as to have the proceedings in the language of the particular region, (v) so as to secure publicity and immediacy, and (vi) so as to enable an accused to have facilities to defend both in a material as well as in a formal sense. The courts will have little to do with individual rights or privacy.

Even in those systems of legal thought where the function of law is taken to be to strike a just balance between private interests and public good, it has been recognized that any amount of constitutional safeguards cannot by themselves be sufficient, or do away with the need for a large amount of discretionary authority, and that, in fact, under modern conditions, no government can function without it. The real task is therefore to canalise and control the direction and sweep of such authority. While theoretically emphasising that Justice is the highest, the most certain and assuredly the most durable interest of all, in practice the contrast is drawn between justice and expediency. In the felicitous language of Lord Atkin, “convenience and justice are often not on speaking terms.” It is therefore all the more necessary that the Judiciary should have a corrective jurisdiction against abuse of the discretionary authority by the executive. In a letter to Randolph in 1789, Washington wrote: “The administration of justice is the firmest pillar of government.”

The function and form of judicial independence as found in the different countries differs widely. In some countries it does not exclude the election of Judges. In some it is regarded as compatible with the existence of a Ministry of Justice exercising control on the administrative side of justice including appointments and promotions. In a number of countries judicial independence is taken to be consistent with a sociological interpretation of laws. While Judges can seldom be pioneers of social progress; they can and often do play a large part in the evolution of society. Differences in judicial temperament and outlook may sometimes tend to produce an element of uncertainty. It may even be said with Pope:

“ ’Tis with our judgments as our watches, none

Go just alike, yet believes his own.”

This, however, is a relatively small matter. A Judge can help social progress in various ways. He can draw attention to the obsolence of an existing law or to the inadequacy of an existing law to satisfy the legislative or social ideal which inspired it. In America, for instance, where the ideal of freedom of contract is basic in the structure of its laws, it was some of the Judges that pointed out how the transformation of the country from a State of pioneer farmers into a State of large-scale industries required a corresponding re-interpretation of the ideal in contracts as well as in executive and legislative measures. It is again familiar knowledge that in England also where the ideal of freedom of contract was fully believed in, it was the Judges who pointed out how at a particular point that freedom would become a travesty and accordingly readjusted the law relating to restraint of trade. Again, a Judge may often give an impetus to social progress by his interpretation of rather widely framed legal principles in accordance with changing conditions. The Judge will also be facilitating social progress when by reason of his contact with reality he finds a law to be bad or oppressive or conducive to misery and draws pointed attention to the need for a change in the law.

It is sometimes said that a Judge reaches by a hunch his decision as to what is fair or just. It is often found that a technical interpretation or literal application of a rule is not satisfying. And in the case of administrative bodies or tribunals wielding quasi-Judicial powers, their decisions may, on occasions, savour of arbitrariness. In all such cases, both in England and in the United States of America, the necessary corrective is sought by invoking what has been variously described as principles of natural justice, equity, universal reason etc. One distinguished English Judge, no doubt, referred to the principles of ‘natural justice’ as “that vague jurisprudence sometimes attractively styled ‘justice between man and man’”⁴ and proceeded to describe it as “sadly lacking in precision.”⁵ Apropos of it, Lord Wright remarked: “So it may be, and perhaps it is not desirable to attempt to force it into any procrustean bed.” ⁶ The noble Lord suggested that the term natural justice seems to be used in contrast with any formal or technical rule of law or procedure. There is general agreement that what is compendiously called ‘natural justice’ stands for the following requirements: (i) opportunity should be given to the concerned parties to be heard before any final decision is taken against them, (ii) a person cannot be a judge in his own cause, (iii) every decision should be reached in good faith, and (iv) in whatever manner evidence is taken a fair opportunity should be given to the opposite party to contradict it. Even in regard to administrative decisions or decisions of statutory bodies, conformity to the requirements specified above is generally insisted on. In Spackman’s case, ⁷ Lord Selborne L. C. observed: “No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word, but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there was anything of that sort done contrary to the essence of justice.” Reviewing the cases where principles of natural justice have in the past been invoked, H. W. R. Wade sums up the position thus: “A long line of decisions extending back for more than a century show that the courts have reviewed even administrative decisions affecting any individual’s rights or liberties, if the party to be affected has not first been given a fair opportunity to make objections. The court could not, of course, review the substance of the decision but could control the procedure preparatory to the decision and require a certain standard of fairness. This was always regarded as a wise and important general principle which would yield only to a plain intention to the contrary in a statute creating a power. Through this, the official endowed with power is kept in the light leading strings of fundamental justice.” ⁸

For controlling too aggressive an exercise of individual right where it would injure public interest, the English Judges have applied the doctrine of public policy. The principle of public policy has been a fundamental agent of legal development. The principle has been described as a principle of law which holds that no subject can lawfully do that which has a tendency to be injurious to the public as against the public good. ⁹ According to Lord Atkin the doctrine could only be invoked in clear cases in which harm to the public is substantially incontestable. ¹⁰ While in internal English law its function has been disabling, as a criterion of the applicability of foreign law before an English court its function has been enabling and far reaching. Principles of personal freedom, monogamous character of marriage, freedom of trade, discrimination against illegitimate children etc., have all been held out in the name of public policy to exclude foreign law. Public policy has thus become a reflection of the general ideological foundations of English law and constitutes in the hands of the Judges a potent agency of social progress.

Probably in no other country has the law, and through it social life, been so largely affected by higher law principles based on a specific interpretation of natural justice as in the United States of America. There the Constitution has set forth certain fundamental principles and linked them up with judicial progress. The Supreme Court is made the watch-dog and guardian of the Constitution against executive as well as legislative invasion. And it has been shown that in the interpretation of the “due process” clause in the 5th and 14th Amendments, economic doctrines could be applied under judicial cover. It was through the opinions of Judges like Holmes, Brandeis, Stone, Cardozo, Frankfurter and others that in course of time a proper legal perspective fell to be attained, which recognised that regulation of social life is a matter for the legislature and not to be attempted by the Judiciary. As a requirement to which acts of the legislature and, executive should measure up, the “due process” clause, though described as a “gossamer concept”, has been held to involve according to Willis (i) notice, (ii) opportunity to the affected party to be heard, (iii) an impartial tribunal, and (iv) an ordinary course of procedure. ¹¹ The doctrine of due process thus seems to measure up in this respect to what is understood generally as the essentials of natural justice. The application of the “due process” clause in practice by the Judges has not been uniform and has often been puzzling to non-Americans. Carl Swisher Brent points out that there are three well-marked stages in the application of the doctrine. During the first period covering roughly the first century of government, the due process clause was interpreted principally as a restriction on procedure and largely on judicial procedure. During the second period extending roughly speaking to the end of 1936, “due process” was expanded to serve as a restriction upon the substance of the activities in which the government might engage, and during the third period, the period subsequent to 1936, the use of “due process” as a substantive restriction has been largely abandoned, leaving it principally in its original status as a restriction on procedure. ¹²

The Supreme Court in our country does not have the unrestricted supremacy enjoyed by the Supreme Court of the United States of America in the sense in which Hughes C. J., could with propriety claim that the Constitution of the United States at any moment is What the Supreme Court makes of it. The Indian Constitution has however provided for the complete independence of the Judiciary, and the Supreme Court has been invested with powers and jurisdiction to protect the rights guaranteed to the citizens by the Constitution and to pronounce on the constitutionality of legislative enactments. In A. K. Gopalan’s case, ¹³ the

Supreme Court held that the last power will not justify the court in imposing any limitation on the general powers conferred upon the legislature under the notion of having discovered something in the spirit of the Constitution, and the omnipotence of sovereign legislative power cannot be limited by judicial interposition, except so far as the express words of the Constitution give that authority. Apropos of the position of the Supreme Court under the Constitution, Patanjali Sastri C. J., put the matter felicitously in State of Madras v V. G. Row.¹⁴ He said: “We think it right to point out what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution unlike in America, where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted ‘due process’ clause in the fifth and fourteenth Amendments. If then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is specially true as regards the fundamental rights, as to which this court has been assigned the role of a sentinel on the qui vie. While the court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.” Article 21 of the Constitution has provided that no person shall be deprived of life or liberty except according to procedure established by law. This last phrase has been held not to carry with it the implications of the “due process” clause of the American Constitution which had an evolutionary history behind it, nor to be synonymous with natural law. Nevertheless, courts in India have repeatedly been invoking the principles of natural justice in scrutinising the validity of acts and decisions of administrative bodies, statutory tribunals and others vested with the duty of reaching decisions affecting the rights of persons. In setting aside the award of a Labour Tribunal as being in violation of natural justice, Mahajan J, said: “It seem to me therefore that the procedure adopted by the Tribunal was against all principles of natural justice and the award is thereby vitiated and should be set aside.” ¹⁵ In another case, ¹⁶ in holding that there was no case for the issue of certiorari, Mukherjea J, observed: “The records of the case do not disclose any error apparent on the face of the proceeding or any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice.” In fact even previously to the coming into force of the Constitution, the principle of natural justice has been drawn upon by the courts to correct abuses and arbitrary action of various bodies exercising quasi-judicial powers or even taking administrative decisions. The principles were held to operate regarding expulsion of members from clubs, ¹⁷ from stock-exchange,¹⁸ regarding cancellation of examination of candidates by the State Medical Faculty without giving notice to them of the charges against them or an opportunity to be heard, ¹⁹ regarding disqualification of a candidate who had obtained pass marks from getting his B. A. Degree without giving him an opportunity of a personal hearing, ²⁰ regarding assessment to customs duty under a different item on the basis of the report of a Chemical Examiner without giving the importer a right to be heard on the matter or to rebut the evidences regarding convictions in violation of the principles of natural justice etc. ²¹

The foregoing survey makes it clear that whatever ideal of justice is adopted, the western ideal or the Soviet ideal, Judges have a large part to play in social welfare and social progress. No enlightened Constitution can afford to dispense with an independent judiciary. In the Soviet system, the Judges administer law so as to inculcate discipline and secure the ideals of the State. In other systems where the constant aim of the law is to strike a balance between the interests of the individual and the interests of the community, the role of the Judges is even more important as on the one hand being a bulwark against executive invasion of individual rights and privacy and on the other controlling excessive assertion of individual freedom where it clashes with social and community interests through the doctrine of public policy. It was revealing information that Dr. Katju gave that in 1953 as many as 470 petitions and other proceedings were filed seeking the issue of writs of habeas corpus, certiorari etc., and that in 215 cases up to the end of November such writs had been issued. This shows the extent to which the Judiciary has come to be regarded as the guardian of liberty and rights by the people and the confidence reposed in it by the public.

¹ Book 5, ch. 7, 1134 b.

² Constitutional Code, p. 34.

³ (1941) 4 University of Toronto Law Journal, pp. 271-272.

⁴ Baylis v Bishop of London. (1913) Ch. 127.

⁵ Rex v Local Government Board. Ex parte Arlidge, (1914). 1 K. B. 199.

⁶ General Medical Council v Spackman, (1943) A. C. 627.

⁷ (1885) 10 A. C. 239.

⁸ 67 L. Q. R. 103.

⁹ Egerton v Brownlow, (1853) 4 H.L.R.I.

¹⁰ (1938) A. C. 1, Fender v Mildmay.

¹¹ Constitutional Law, p. 662.

¹² Growth of Constitutional Power in the United States, p.107.

¹³ (1950) S. C. J. 174.

¹⁴ (1952) S. C. J. 253, 257-258.

¹⁵ Bharat Bank v Employees of Bharat Bank, (1950) S. C. R. 459.

¹⁶ Parry & Co. v Commercial Employees Association, (1954) S. C. J. 275.

¹⁷ A. I. R. 1939 Bom. 35

¹⁸ I. L. R. 47 Cal. 623

¹⁹ 56 Cal. W. N. 278

²⁰ 56 Cal. W. N. 861.

²¹ 56 Cal. W. N. 452.

²² I. L. R. 48 Bom. 515.

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