PRIVACY : AN EVERYDAY ISSUE

Privacy

My Labrador, named Phantom, is one of the friendliest beings around. Still, over the years, I’ve noticed that while he is quite comfortable being petted and fondled by most; he is distinctly displeased with some who come up to him, attempting to pet or fondle him. Without doubt, with some, Phantom prefers to reserve his space.

In the wild, with overwhelming varieties of life; it is easily noticeable that they don’t like intruders, particularly strangers, in territory that either they consider as their own or where the intruder or the stranger has approached rather too close. Sometimes the creature in question, such as say a bear or a herd of wild buffaloes or a pride of lions are prone to show their displeasure at such intrusion to their proximity by a display of aggression. But near all do show some reaction to such intrusion, either by moving away or by remonstrating through bodily behaviour.

Humans, too, as is noticed, do display similar attributes where they resent intrusion by others in such aspect.

In 1890, Samuel Warren and Louis Brandeis, in their seminal article published in Harvard Law Review, tracing the rights to privacy under the common law of torts, argued for the right to privacy to be given a more clear and stronger pedestal under the law. The catchphrase by which they sought to define the right to privacy was “the right to be to let alone”; which phrase – a coining from Judge Thomas Cooley’s celebrated work on torts in 1880 – was to set the momentum to greater heed and regard to the right of privacy. United States Supreme Court benchmarked the right “to let alone” in its decision in “Union Pac. Ry. Co. V. Botsford”, 141 US 250, 251 (1891).

Over the years, the right to privacy has evolved and has been recognised as a basic human right. Article 12 of the United Nations Declaration of Human Rights provides that (1) “No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”; and that; (2) “Everyone has the right to the protection of the law against such interference or attacks.” Article 8 of the European Convention on Human Rights declares that (1) “Everyone has the right to respect for his private and family life, his home and his correspondence”; and that (2) “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the right and freedoms of others.”

A right to privacy is recognised under the constitutional law of a large number of countries as a basic human right. In India, the Supreme Court has recognised the right to privacy as a basic human right in some of its decisions and the approach has been to seek the existence or absence of such right and the weight attached to it in a given situation and not to undertake to define the right to privacy and justified restrictions on it in any general manner.

In recent years, aided by developments in technology; collection of data, often of a personal nature, at an ever increasing scale has led to burgeoning issues and controversies in such respect.

Witness the condition to disclose data, including that as would be clearly defined as personal relating to family photographs, friends contact list et cetera, to downloading applications on Google play.

In June 2 013, based on revelations made by Edward Snowden, a US government contractor, “The Guardian” published that National Security Agency (NSA) of the US had collected telephone records of tens of millions of Americans. Close on the heels of the same, “The Guardian” and “Washington Post” published that NSA had direct access to – via the PRISM program – to the servers, amongst others, of Apple, Google and Microsoft and that these companies had assisted NSA in infringing laws and regulations pertaining to privacy controls. Following thereto, based on information provided by Snowden, it appeared that not only the NSA; but government agencies in a number of other countries had undertaken surveillance in a manner seemingly at odds with privacy protection.

The issue of privacy, in present times, therefore is a hot one and promises to remain so for times to come leading to an ever pressing need to have a clearer understanding of privacy and the concomitant rights.

The catchphrase “right to let alone” given by Warren and Brandeis did help set the tone to further probing of issues of privacy and to set about charting a more clear road to the understanding of privacy; but in itself, the phrase “the right to let alone”, is too wide, imprecise and leaves the issue to be clearly probed much deeper and incisively in the interests of better understanding of the issues of privacy, especially in the context of ever increasing technology in such respect.

In “Understanding Privacy”, a well-researched and well-reasoned work, Daniel J. Solove argues that a definition, all pervasive, of privacy would seem to be infeasible and any such definition would be either overwide or on the narrower side and it is better, for a proper understanding of the working of issues of privacy, to relate it to the context in which such issues arise. Still, realising the need for cornerstones or guidelines as a necessary bastion towards the understanding of the issue of privacy; Daniel J. Solove submits that the concept of privacy, or better, rather it’s working in reality, can be approached from four different contextual angles namely, (1) collection of data, (2) processing of data, (3) dissemination of data and (4) invasion. In all these broad context; – issues of privacy arise on regular basis and are to be understood and dealt with in their contexts; though, of course, these contexts can overlap and are not watertight compartments exclusive of each other.

While the segregation of the working of privacy issues in such four broad groups of “information collection”, “information processing”, “information dissemination” and “invasion” is helpful – “invasion” here would include the more conventionally or traditionally understood aspects of intrusion in private spaces such as homes and the like – nonetheless, it behoves a more succinct and, if possible, a tighter defining of the subject matter of the issues that relate to and give rise to the rights to privacy.

It is submitted here and, as put right in the beginning, privacy seems to have its origin in basic human will and instinct. It is prevalent in most other forms of life which resent intrusion in their private spaces. Such resentment can be on grounds of perceived dangers or displeasure simpliciter at the disturbance of a state of environment or atmosphere not desired to be disturbed by the presence of others, particularly strangers.

The will or the instinct to privacy, for a better correlation to adjudicating it in practicality, can be broken down broadly to a compendium of two situations.

  • Where the act in question is perceived as capable of disturbing or posing a threat to personal safety by intrusion in spaces or subject matters considered as intrinsically linked or pertaining to one’s own self.
  • Where there is perceived need to have space of one’s own; – not to be disturbed or to be allowed to be left alone or not to have a perceived atmosphere or environment be disturbed.

In both the situations, whether it is a perception of threat to safety or where it is resentment against disturbance being posed to a certain state of affairs; possession seems to play a critical role. Issues of privacy seem to be at their strongest in matters of incursions inside the home or a space which is under possession or with regard to information or data that one considers as pertaining to or being so largely linked to oneself as to be considered matters of personal possession. Incursion into feelings, sentiments and emotions which again is perceived to be so linked or pertaining to oneself as to lay claims to possession over the same also are strong bastions of issues relating to claim to privacy.

Proceeding from the above cornerstones giving rise to issues of privacy; namely where intrusion is in matters of one’s possession and which are perceived as safety threat; or where the intrusion is resented on grounds of disturbance or conflict to a desired state of things including emotions, sentiments or decisions in areas held to be so vitally linked to oneself as to be that justified as possession over the same; what would then be required is to firstly adjudicate whether the perceived subject matter, either on grounds of threats to safety or disturbance to a desired state of affairs or things, is so substantially linked as to justify claims of possession over the same on part of the person or entity claiming privacy protection with respect to the same and then, secondly, to see whether, if a claim to a right of privacy does arise as aforesaid, then there is a need to roll back or restrict such a right to privacy on grounds of ABSOLUTE NECESSITY.

The first step, in adjudicating issues of privacy, to reiterate, therefore, is to see whether the claim is indeed over such subject matter as to which indeed one can lay a genuine claim to being vitally linked to oneself – and possession here would be the instrument to conveniently decide most of such issues – and then to see whether the rolling back or restricting such right or claim to privacy, if made out, on the basis of the first test as aforesaid, is able to be justified on grounds of absolute necessity.

As a ramification or component of human will and instinct; which is indeed a founding bastion of all basic human rights: all such basic human rights, including that of privacy, need to be restricted or rolled back only on grounds of absolute necessity if the human life is to be given a scope and allowance to attain its potential in keeping with principles of natural justice.

To give an example, the issue before the Supreme Court of India relating to government’s sought after pervasiveness of Aadhaar card may be tested on the basis given above. Aadhaar card contains biometrics which undoubtedly are matters of claims of privacy. Since privacy, with its origins in human will and instinct, is a basic human right critical and necessary to the allowance of the potential of human growth and existence, or putting it differently – to the removal of hurdles or obstructions to the same; rights to privacy can be rolled back only on grounds of absolute necessity. The test would be to see therefore whether such increasing pervasiveness of Aadhaar card as sought by the government is justified or not on grounds of absolute necessity.

The requirement of a statute or legislation on privacy, therefore, is an absolute must. An absolute must to ensure the protection of this vital right. Given, for instance, the opening of floodgates of agreements on the internet which – leave aside the question of going through suitably on part of overwhelming number of human beings, given its legal technicalities and verbosity – is so on the spur of the moment thing when one is in the need of a particular application or a software or other requirements on the internet as to leave the overwhelming number of populace helpless without any real choice to disagree with such agreements; the duty of the government to step in, first by laying down a clear law on issues of privacy and, secondly, to set up a body or tribunal to aid and assist the human populace on their behalf by calling in question such agreements suo moto and providing suitable redressal against the same and other unlawful breaches of privacy – as per the law adequately defined through statute in such respect – is a must.

“SECULARISM” AS A MATTER OF CONSTITUTIONAL LAW & UNIFORM CIVIL CODE

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The word “secularism” is nearly always in vogue in our country. It has become particularly so in recent times.

In a bid to see the meaning or meanings that may have been ascribed to “secularism” in law; judgements of the US Supreme Court regarding the same need to be seen given their thought provoking quality; and given further that the Indian Supreme Court – having regard to good number of common constitutional causes and the common role of both the Supreme Courts as custodian of their respective constitutions; in the backdrop of the much greater experience and history of the US Supreme Court in respect therewith – relies heavily on thought process of US Supreme Court as regards interpretation and enunciation of Indian constitutional  law.

[An illustrative judgement of the US Supreme Court, citing a number of other decisions of the same Court, is SCHOOL MANAGEMENT OF ABINGTON TOWNSHIP, PENNSYLVANIA  VS. EDWARD LEWIS SCHEMPP  374 U.S. 203 (1963 )]

What would secularism mean as a matter of working of law?

The first and simple view, so far as such meaning is concerned, is that secularism as a matter of working of constitutional law would mean that the State in all its activities shall be free from being subject to principles & practices of any religion and shall not discriminate in favor of any particular religion.

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The United States Supreme Court, probing the history of thought behind the idea of secularism and in working out the legal implications of the same, has laid down in a number of its decisions that the root idea behind secularism as a matter of State practice is that there needs to be a separation between the organ of the State and the organs attempting to base themselves on religion and the said separation is required on account of the bloodshed, killings, massacres and wars that have been witnessed in human history when governing powers and purported religious authorities and affairs have either merged or joined with each other.

The US Supreme Court would insist that the working of secularism as a matter of constitutional law would not only require a separation between the organ of the State and the organs/entities attempting to base themselves on religion; but that such separation has to be clear and strict.

Based on the mandate of such clear and the strict separation between the State and the organs/entities attempting to base themselves on religion; the US Supreme Court proposes, as may be seen in a number of its decisions interpreting the First Amendment together with the Fourteenth Amendment of US Federal Constitution, that the idea of secularism would accordingly then imply that the State shall not aid or assist any religion. In keeping with the same – that the separation between the State and the organs/entities attempting to base themselves on religion shall be on clear and strict terms; – the State shall not interfere with the practice of any religion or the holding of any thought, belief as a matter of conscience or religious practice unless and until the same is compelled on grounds of justice or propriety as in a secular sense defined or held.

As a fallout of the above enunciation; the State is enjoined from giving any manner of aid or assistance to any institution, organisation or like which carries out any act, program or curriculum that can be said to be associated with the propagation or promotion of any particular religion. Public schools, accordingly, are to be restricted from carrying out religiously devoted prayer sessions and no state aid is available to any private school, college or institution which includes even prayer sessions devoted to any particular religion.

“Secularism”, ipso facto, is not to become “Corrosive Secularism”; that is, the practice of “secularism” itself is not to become the “religion of secularism”; in the sense that – in the name of secularism – it unnecessarily erodes into matters of religious affairs and practices.

Behind such warning against corrosive secularism lie basic mandates of justice; – that is the degree of neutrality towards matters of religious practice and affairs has to be couched and shaped – where interference is called forth by the State in matters of religious affairs and practices as a matter of constitutional implication of secularism – by the degree of objection that a particular religious practice or affair invites having regard to the concepts of justice or propriety as in a secular sense defined or held. If this is so with weight and justification; it may be seen that the idea of a uniform civil code for all would be counter to the very idea of secularism; given that secularism itself mandates, as noted, an aloofness from matters of religion; which aloofness, amongst others, translates into non-interference with matters of religious practices unless and until interference is called forth on clear grounds of justice or propriety as defined or held in a secular sense.

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Or in other words, interference with matters of religious practice forming arguably the subject matter of a civil code by the State has to be SELECTIVE AND NOT UNIFORM; to be couched and shaped by the degree of objection that any such particular religious practice may invite having regard to secular concepts of justice or propriety.

If this is so and if “secularism” has been held to be a basic feature of the Constitution of India by the Supreme Court of India; it would appear that the idea of uniform civil code stated in article 44 of the Constitution of India cannot be literally interpreted and would translate into state interference, through statutory law, in matters of religious affairs that potentially can be said to be subject matter of a civil code;

(A).    on the basis of degree of objection that any such particular religious practice may invite having regard to the secular grounds of justice and propriety, and

(B).      by identification, on the basis of degree of need & necessity, of SELECTIVE components of the entire area theoretically capable of a civil code; where statutory law grounded in justice and propriety – as in secular sense defined or held – may be imposed on all across the board.

In cases both of (A) & (B) above; it shall be seen that the idea of a comprehensive civil code universally & uniformly applicable to all – as stated under article 44 of the Constitution of India – is refuted and negated by dominant arguments against such idea based on secularism as interpreted in the framework of constitutional law and held to be a basic feature of the Constitution of India.

To reiterate and submit therefore; – the idea of uniform civil code, in reference to article 44 of the Constitution of India, cannot be literally interpreted and – in application – shall have to be necessarily pruned and modified on the touchstone of constitutional implications of secularism that is held as a basic feature of the Constitution of India.

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POLICE REFORMS

The general ineptitude of the Indian police and the corruption within is a matter well known. Nonetheless, certain aspects of the working of the Indian police and the criminal justice system, which highlight the urgency of the reforms, are not that commonly known.

The criminal justice system in India works in two ways. The first is on the basis of a complaint case on which the Magistrate, after going through the material submitted by the complainant, issues summons to the accused and proceeds to conduct their criminal trial. These are known as complaint cases. The Magistrate, on his own information, can also issues summons and undertake trial. This also would fall in the category of complaint cases. The distinguishing characteristic of complaint cases are that material against the accused are produced directly in the court with the role of the police marginalised in the process thereto.

The other category is what is known as police cases. Here the police conducts investigation and submits material on such basis before the court on which trial takes place. Where the information disclosed to the police reveals the commission of cognisable offence, it is mandatory for the police to register a case or what is commonly known as an FIR. Cognisable offences are those where punishment, ordinarily speaking, is in excess of three years.

It would be obvious that complaint cases can be filed directly in courts only where the matter is such that it is amenable to documentary proof and evidence as also limited number of oral witness and testimony and doesn’t entail investigation, probe or inquiry as such to establish or bring out the guilt.

As such, nearly all the serious criminal matters are such as are police cases. Or, in other words, regarding criminal offences, especially the serious ones, criminal justice is dependent upon police investigation. The rule for conviction is that the material brought forth by the prosecution should be free of any reasonable doubt as regards the guilt of the accused.

Now, taking the two – namely that criminal justice in serious criminal offences is dependent upon police investigation and that for conviction, the material has to be such as is free from any manner of reasonable doubt as to the guilt of the accused and combining these two with the fact of the police ineptitude in India and their gross corruption – it doesn’t take much effort to see that on sheer merits of the matter, it becomes very difficult to bring the guilty to justice in India.

This is in fact the reality in much of the countryside in India. The rich and powerful seldom are brought to justice for their criminal acts unless until they have richer and more powerful rivals who can activate the criminal justice system. Or where – on account of public opinion and media coverage, generally the two going together – the courts are brought under pressure to convict.

To begin with, the Indian police would be extremely reluctant to register an FIR even though it is mandatory on their part to do so if the information discloses the commission of a cognisable offence. Once an FIR is registered, it is again mandatory on their part to submit a final report after investigation. Refusal to register the FIR saves them from straining themselves. FIRs are refused to be registered particularly where the police does not see much chances of milking any money or advantage from the parties involved or where the parties concerned are again weak and unsupported which again, generally, go together.

Where an FIR is registered and an investigation undertaken; it can be easily influenced through corruption, bribery or influence to make it be undertaken in such a way that – given the condition that conviction shall take place only where the material does not reveal any manner of reasonable doubt as to the guilt of the accused – it would be rendered amenable to plenty of reasonable doubts during the course of the trial in the court.

In fact, the gross tragedy of the system is that given the bullock-cart age, method and technology in which much of the Indian police still works; even if at times, most exceptionally, sincere work is put in to gather material during investigation; such material is always open to creation of reasonable doubts on part of any sincerely probing lawyer during the course of the trial on behalf of the accused.

Barring investigation under special Acts, such as Prevention of Corruption Act, investigation is generally undertaken by policemen at the lowermost rungs of the ladder.

The lowest level of policemen are recruited as constables. In many of the states in India, the amount of money that is required to be paid as bribe money for getting recruited as constables is a hefty sum and well known in advance. Constables recruited in such manner have their foremost objective to first of all compensate for the money paid as such bribe money.

Again, lucrative Station Houses, often, have huge amounts of bribery and corruption money paid to ensure transfer to such Station Houses. Bribe money is generally – to achieve such transfers – paid to the superior police officers or to the politicians.

Or, in other words, the men who actually conduct the investigation, generally speaking, have their very inception in the police force rooted and their subsequent journey in the police force grafted in corruption and malpractices.

The same system still to some extent worked under the British largely because the supervisory senior officers under the British rule were still far more efficient and of greater integrity and character than the present ones.

In an area of increasing materialism and consumerism, where the salary paid to the senior officers are still astoundingly low; it doesn’t come as much surprise that most of the senior officers in the police would become vulnerable to monetary influences sooner or later in their career.

If still, by some fluke or exceptional chance, there remained a honest or sincere police officer in the senior ranks, otherwise impossible in the low ranks; the level of political rule is such as would ensure that such officer was confined to such posting as would effectively take him out of the system.

If to all this is combined the further maladies of the court trial in the Indian scenario; especially the propensity of the witnesses to be bought out or otherwise be open to other influences; – it doesn’t take much genius to see that criminal justice system in India has fallen apart.

The mirage that is created of the criminal justice system working is on account of the cases highlighted by the media or where the courts under pressure, or the law enforcement agencies again under pressure, have been forced to give acceptable conclusions. As against any one or two such cases where results have come in under pressure; there would be literally thousands and millions of cases where nothing would take place on the merits of the matter except other than victimisation of the innocent and unsupported.

Police reforms are therefore critically and most urgently required.

Certain reforms are obvious on the face of it which simply require government investment of money, time and effort.

First of all, the salaries of the police force have to be increased. This would be an infrastructural investment in the Indian society and its future of development as important, if not more, than any other infrastructural investment. Along with then, under the Acts and provisions which are already applicable; corruption in the police force, as in fact everywhere else, is required to be severely dealt with and proceeded against.

The levels of recruitment to the police force have to be confined to either one, or at the most, two modes and levels. The most preferable would be the system where the entry to the police force would be at the lowest level with the potential on part of the entrant to rise to the top. This is the system in most of the developed countries. This would give the incentive of status, pride and honour to the members of the police at the lowest level which would contribute significantly to curb corruption which often, also, is resorted to, to compensate for such lack of status, pride and honour.

If one level of entry is not practicable in the Indian context; then it should be confined to just two level of entries. One at the junior level, and the other at the senior level. Right now, there is one entry as constables, another entry as sub inspectors, yet another entry as deputy superintendent of police/ACPS and then a further entry as superintendents of police/DCPs. This tremendous hierarchy of induction and recruitment creates such a wide gulf of status between the senior most and the lower and lowermost levels; that the tendency to compensate for lack of status and rank at lower and lowermost levels through bribe and graft is particularly strengthened and entrenched.

Then there has to be investment on part of the government to suitably train the police force, right from the low level to the top, in state of art forensic skills, technology and method and manners of investigation besides of course in the working of the legal system applicable.

Police Station Houses have to be updated and the facilities to the police personnel given on a basis as to enable them to live a life of dignity on their official salaries. If not, underhand dealings and earnings on part of the police force takes the argument, at times, of being a near necessity; specially in metropolitan centres where cost of living is high.

Manner of recruitment, even at the low level, has to be such as to be worthy of status and dignity of an officer still of police as is in the case of USA. Only then, can realistic expectations be entertained of the members of the police force at the lowest level behaving and discharging their duties in a manner courteous and responsible.

All the above steps are such as can be undertaken without any new legislations. They simply require investment and constructive activity on part of the government. These are most necessary. A society without a suitably working criminal justice system is a society without future. 

A THEORY OF NATURAL JUSTICE

A THEORY OF NATURAL JUSTICE

1.    Existence of norms of conduct


2.    Discernible trend in the norms of conduct

3.    Explanation behind changing norms

4.    Working of natural justice

4.1     Regulation of output of human life

4.2     Liberality and objective decision making

4.3     No dichotomy between positivism and natural justice

4.4     Role of prevailing perspective

4.5     Other aberrations in the working of natural justice

 

5.      Application to different themes and situations

5.1     Capital punishment



1. Existence of norms of conduct


The greater portion of human population has witnessed marked changes in the operation of law.


In modern democratic societies, law is understood to be that which is formulated under the legislative powers or that which is derived from judicial decisions. Legislation and judicial decisions often take into account customary practices or work of jurists in determining and laying down the law.


Such manner of law-making, as understood in the above sense, may not be available in non-democratic society or in historical times or in simple societies. In non-democratic society, the power to determine how the society would be governed would lie in the body or the organ which holds the governing power. Norms of governance in non-democratic societies, though being laid down in a manner somewhat different from democratic societies, would nonetheless be very much available and would have the status of law in such non-democratic societies.


So also in historical times, there would always be norms applicable as regards the manner in which the society concerned was expected to behave. In simple societies, there may not be the formal apparatus of law as prevails in modern societies; nonetheless, there remains a code of conduct; some of which may be collectively enforced.


Or in other words, human society, most always, has had norms applicable to it as regards the manner in which it was expected to behave. These norms would constitute the morality of such society at such point of time. Some of these norms may be enforced through the collective strength of the society and be akin to how law functions in present times.


The point that is being made is that there always have been norms governing the behaviour of the human society; whether such norms were applicable as a matter of law as understood in modern times or whether they were applied otherwise either through the majority opinion actively undertaking the enforcement of such opinion or confining itself to expressing approval or disapproval of any particular conduct which had, of course, its natural results and consequences.


2. Discernible trend in the norms of conduct


Over time, as stated, the norms of behaviour of much of the human society undoubtedly have witnessed changes. The change may not always have been towards greater liberality and fairness. For instance, the norms of behaviour of Nazi Germany, even though Germany achieved remarkable industrial progress in that period and time, in the manner it authorised the persecution of Jews, was more barbaric than even the “barbaric” historical times.


Still, there is definitely a trend discernible in the way norms have changed through passage of time.


This trend is discernible, for instance, in the way in which norms relating to punishment of crimes have changed. This trend is discernible again in the way norms have changed in a way as to attempt to take greater care of the sick, the handicapped and the disadvantaged. A large collection of legislations in modern states are welfare oriented.


Through passage of time, undoubtedly the norms prevalent in much of the human society, where punishment for crimes is concerned, has attempted to place increasingly greater stress on understanding the cause of the crime and also in attempting to provide an opportunity for reform of the crime doer.


Or in other words, as stated, there is undoubtedly a trend discernible in the way the norms applicable to the mode of behaviour of much of the human society has changed over time.

3. Explanation behind changing norms

As stated, this trend through the passage of time, though marked with aberrations, can be categorised as seeking to be more fair and liberal in matters of governance and behaviour.


How to describe or explain this trend?


To examine this, one needs to focus on the nature and manner of the human organism.


A human being is born with a certain scope of biological and mental development in the course of its life. This scope has a compulsion of its own. The compulsion is to seek the full enactment of such scope of biological and mental development rather than have a truncated end imposed on it.

 

Arguably, it is this compulsion of the scope of biological and mental growth of the human organism in its lifetime which compels changes in the norms governing human society in a way and manner as allows greater fulfilment of such scope of biological and mental growth.

It is therefore the instinctive and inherent need of the human organism to see the enactment of its biological life cycle which compels changes in the atmosphere around, including the norms applicable to governance and conduct of human society, in a manner such as to be more and more conducive to such enactment and playing out of the biological cycle.

The inherent human need and instinct, to allow a situation which facilitates the complete and better running of the human biological cycle, has consistently forced the norms of conduct and governance in a way as to increasingly facilitate the same.

Such instinctive or self compelled need to bring out more from a human life, both in terms of length and quality of time consumed by it, is possible to be stated as doing “justice” to human life and is what comprises the core of so-called “natural justice”.

4. Working of natural justice

4.1 Regulation of output of human life


The human society, so far as the output of the life cycle of the human organism is concerned, in its interests, would like to have such output in a manner as is favorable to preservation and promotion of human life. In keeping with this, there would be compulsion throughout to develop norms of conduct which are favorable to preservation and promotion of human life and to suppress and alienate such output of human life which is considered or found destructive or harmful to human life.


Or in other words, the persistent trend or force behind changing norms of conduct would be that which aids and assists the bringing out of the life cycle of the human organism to a greater and wider extent and, in the interest of the same, promotes human conduct as is considered favorable to the same and suppress conduct found harmful to wider and greater playing out of the life cycle of the human organism.


4.2 Liberality and objective decision making


In so far as technological developments, scientific discoveries and/or intellectual thought process are found necessary towards physical and mental well being of the human; norms of conduct and governance would inherently strive to furnish such liberal atmosphere as is found more helpful to nurturing and assisting technological developments, scientific discoveries and/or intellectual thought process.


Liberality, therefore, would, over long run have compelling logic to be a core constituent of this explanation of natural justice.


Stability and security of life stands to be a primary requirement of human society. Such requirements would involve a degree of order and predictability in human affairs. Ordered regulations of human affairs would require taking of decisions in as objective, rational and informed manner as possible. This would require therefore hearing all the sides which stand to be primarily affected by the decision in question and would also require decision taking in an unbiased manner after taking into account all relevant considerations. Greater information having a bearing on the decision in question would tend to help the quality of decision and thereby ordered regulation of human life which in turn would assist greater stability and predictability in affairs of human life.


All these; wider opportunities and scope of hearing to affected sections, taking into account more efficiently relevant considerations and having available wider information bearing on the subject matter besides the need to have unbiased and more efficient decision taking authority and mechanism; would, to the extent the same aids and assists the security, stability and well being of human life, would again by itself, in the course of evolution of the human life have compelling logic behind changing norms of human conduct; constituting core constituents of natural justice.


The very working of natural justice, nonetheless, at a given point of time, may place restrictions on liberality and objective decision-making.


To the extent that natural justice is geared towards security and well-being of human society; in times of emergency, catastrophe and serious crisis, decisions may be required to be taken in a manner which place restrictions on liberality and objective decision-making in order to better secure or undertake measures required in the interests of well-being of the concerned human society.

Again, in an effort to achieve greater results of economic development and industrial growth; liberality may be restricted and a relatively more disciplinarian and rigorous regime be implemented. It would always be a matter of analysis whether such a disciplinarian and rigorous regime has attained its purpose of achieving human well-being by way of desired economic development and industrial growth; or whether, the cost of obtaining such industrial growth and economic development has singularly sacrificed material aspects of human well-being. This analysis shall determine the changing nature and degree of liberality and/or freedom awarded.

At times, as pointed out at the very outset, if the need for quick economic development and industrial development, even if it entails relatively more disciplinarian regime, is justified in the overall interests of the concerned human society; then the working of natural justice would justify such a relatively more disciplinarian regime.

 

However, if the working of such disciplinarian regime is found to be more burdensome than beneficial; then such a disciplinarian regime would need to be accordingly relaxed.

To the extent that liberality and/or other requirements of objective decision-making are conducive to human well-being as pointed out; working of natural justice, however, would tend to accord greater importance to liberality and/or requirements of objective decision-making rather than to the contrary.

4.3 No dichotomy between positivist school and natural justice school

The view of natural justice presented here disallows dichotomy between the positivist school of thought and natural justice school of thought.

The compulsion behind ordered regulation of human affairs, in the very interest of human life would require, at any given point of time focus on working the norms of conduct as efficiently as possible. This, in turn, would compel need for understanding the norms of conduct applicable through the apparatus of the governance having force of law and placing stress on an understanding also of the process of implementation of such norms. This would be what the positivist school of thought comprises of.

This very manner and mode of working of natural justice would itself desire at any given point of time suitable focus on analyzing and understanding the norms of conduct including that which works through the apparatus of governance by way of law; as also better understanding and analysis of the mode of working and implementation of such norms.

At any given point of time, therefore, all that comprises positivist school of thought falls to be a part of natural justice.

In fact, this particular aspect of natural justice comprising analysis and understanding of the working of law helps facilitate evolution of norms, which in the longer run and in continuum, are more conducive to human life.

What comprises positivist school of thought at any point of time is not only an integral aspect and constituent of this explanation of natural justice; but helps functioning of natural justice towards continuing evolution of norms of human conduct overtime in the interest of the length and the quality of human life.

4.4 Role of prevailing perspective

Though the sheer need of biological preservation and prolongation and/or basic requirements of human life would, as a logic of self interest of the human organism, near always be the driving factor behind the changing norms of human conduct; different perspective as regards quality of human life have a potential to generate variables behind changing norms of human conduct.


For instance if the prevalent point of view arises that widespread greenery and natural life is necessary to quality of human life; then norms which promote preservation and restoration of greenery and wildlife would find increasing stress and importance and would tend to reverse norms which had allowed wide spread destruction of greenery and natural life.

Human society, at a particular point of time, may not behave in a manner which is compatible with human well-being in the long run or even in the given short run.  Such manner of behaviour would be in contradiction to natural justice as seen in continuity.

The ability of human society to realise for itself what is injurious for it and to behave in a manner which is helpful to future generations would greatly facilitate the working of natural justice.


There is a two-way process, therefore, between the working of natural justice and the ability of human society to realise for itself what is injurious for it and to realize that interests of future generations are required to be maintained. The compulsion towards human well-being, both in the short run and the long run, would create pressure towards better perspective and analysis of the balance required to be maintained between human well-being in the short run and that in the long run. This better balance of human well-being both in the short run and the long run would, in turn, helps create better working of natural justice and, thereby, even better balance of human well-being both in the short run and the long run.

If at a given point of time, the human life style is such as to be poorly appreciative of human well-being in the long run or even in the short run; then the working of natural justice, which is towards evolution of continuing human well-being, would suffer and be arrested.

The working of natural justice, therefore, is not perpetually independent and overriding. Though it has powerful natural compulsions derived from continuing evolution of human well-being; it is vulnerable to being overridden by human behaviour at any point of time which, in its interest at such point of time, can be damaging to continuing evolution of human well-being.

4.5 Other aberrations in the working of natural justice

There would be other factors causing aberrations in the working of natural justice. There would be periods in which norms would change in a manner different to the working of natural justice.

At times, the entity or entities holding dominant power would change norms which would be against the principles of stability and promotion of human life, such as done by Hitler or Nazis, but which would be designed to help promote such dominant entity or entities as perceived or considered by this dominant entity or entities.

Such aberrations to the extent that they militate against ordered regulations of human affairs including peace and security as a matter of primary self interest of human life; would be resisted and sought to be reversed so as to be in line with the working of the natural justice.

At times, a dominant school of thought may hold a particular line of conduct to be more in interest of human well being and may lay down norms of conduct accordingly. These norms however may not achieve their stated purpose or in fact be found contrary to the interest of human well being and be sought to be changed accordingly.

 

Then, again factions or section of human society which are not otherwise dominant, may find particular norms to be conducive to their self interest even though such norms are against the well being of much of the rest of the human society. Whether it are these factions which prevail over the greater rest of human society or whether the greater rest of human society prevails over these factions; once the tussle ends, the prevailing parties shall find the need for better continuity and quality of human life; which shall have a tendency to restore thereby the working of natural justice in the manner explained.


5. Application to certain themes and situations

Clarity on what comprises “natural justice” is of critical importance for the future of human society.

Nothing illustrates this better than the increasing importance of the environmental issues. The human society used natural resources to help sustain and strengthen its biological life cycle and the possible outcomes from such life cycle. Natural resources were consumed to achieve aid and sustenance of human life. Increasing and alarming consumption of natural resources took place towards greater sustenance, ease and comfort of human life. When the depletion or destruction of natural resources reached the point where they threatened the existence of human life on planet Earth; the norms of governance facilitating preservation of natural resources and even its restoration and resurrection are finding increasing importance.


5.1 An illustration of application of this view of natural justice

This explanation of natural justice, that it is simply the compulsion to assist the human biological life cycle in terms of its length and quality, are required to be kept in mind wherever the task of formulating norms of governance or conduct or implementing the same is concerned.

When applied to penology; this explanation of natural justice has obvious implications. Straight away, it would argue against capital punishment as that would prevent the enactment of biological cycle of a given human life. At the same time, from the point of view of assisting not only the enactment of the biological life cycle but, importantly, the quality of the same; this explanation of natural justice would emphasize reform and rehabilitation measures of the crime doer to the widest extent possible. However, where the nature of the crime and the crime-doer is found to be such as to be an irrefutable grave threat to human life in general; then by the same principle of preservation & promotion of human life, the scales may be tipped in favor of capital punishment in such case for the sake of preservation of human life in general.

The application of this view of natural justice that it is simply such as promotes the continuity of human life and its quality, when applied to penology, would not altogether rule out capital punishment but, would find its application only where the crime committed is of exceptionally threatening nature to human society.

THE COLLEGIUM – TO BEEF OR NOT TO BEEF

SC

So the Supreme Court struck down the constitutional amendment setting up the National Judicial Appointments Commission (NJAC). The collegium system – where a handful of senior most judges of the Supreme Court constitute the said collegium – has been revived and would continue to appoint judges to the superior courts. Hearings would commence shortly in the Supreme Court to consider ways and means of improving the collegium system.

Reading the judgements of the Supreme Court which struck down the constitutional amendment setting up the NJAC and revived the collegium system; certain impressions are hard to resist.

The judges, sensing the importance of the issue and having their name stamped in history, have been prone to be much more lordly than usual; leading to much unnecessary verbiage.

Only one of the judges – Jagdish Singh Khehar, delivering the leading judgement – has attempted to put forth what stood to be the greatest difficulty with the working of NJAC. Even then, his exposition of this greatest difficulty with the working of the NJAC falls short of clearly bringing out the full implications of the same.

The greatest difficulty with the working of NJAC stood to be the matter of the two “eminent” persons as members of NJAC. These eminent persons would have been appointed to NJAC by a panel comprising of the Prime Minister, the Chief Justice of India and the leader of opposition. Where no leader of opposition availed, the leader of the single largest party in the opposition instead would have been the member of this panel appointing the eminent persons to NJAC.

NJAC consisted of six members. Three of them were the senior most judges of the Supreme Court. Fourth was the Law Minister and the other two were the eminent persons. The candidature of any person for appointment as a judge to the superior courts would have been blocked if any two members of the NJAC voted against him or her.

 Now, the panel appointing the two eminent member persons of the NJAC had two politicians and one judge. Using a different terminology; the panel appointing the two eminent member persons of the NJAC consisted, apart from the single judge therein, of the sitting head of the union executive (PM) and a keen or key aspirant to future union executive (Leader of the opposition; or where there is no designated leader of the opposition, then the leader of the single largest party in opposition).

Or in other words, the panel appointing the two eminent member persons of the NJAC was dominated by politicians or by persons having substantial interest in being a part of the union executive and the functioning of the union executive. Given the same, the chances of at least one of the two eminent member persons of the NJAC siding with the Law Minister stood to be real and noteworthy.

Nearly all High Court judges aspire to be elevated to the Supreme Court. Given that the chances of at least one of the two eminent member persons of the NJAC siding with the Law Minister was such as not to be dismissed easily; serving High Court judges would have been extra wary of riling or displeasing the union executive.

Now the union executive is the largest litigant. And government power is what needs so critically to be kept in check as events in Indian history from emergency onwards so clearly demonstrate. Now this extra wariness of the serving High Court judges in displeasing or riling the union executive would have made a big dent in the impartial or independent functioning of the High Court judges so critically required for the welfare of the Indian Republic.

The most damaging impact of the NJAC, therefore, was on the independence of the High Court judges. None of the judgements has brought out this clearly as required. Only one of the judges – Jagdish Singh Khehar, delivering the leading judgement – has attempted to bring out this aspect and though he has devoted considerable lines to it; his exposition has failed to bring out the crux of the matter in such clear exposure as was required.

The collegium system has its drawbacks. But the NJAC was a disaster.

The union executive, by virtue of the NJAC, would have acted greatly on the minds of the serving High Court judges; restricting and restraining them even further from acting against the union executive in their official capacity.

 Judicial activism is necessary for upholding the rule of law where the executive is found to be wanting or lacking for some reason or the other; and rule of law is another basic feature of the Constitution which cannot be detracted from.

Blocking the candidature of activist judges – with whom the executive is far from happy, but who for the public are often a boon – would have been a matter of distinct feasibility on part of the union executive given that all it took was to get one of the eminent member persons to side with the law minister on such blocking. Given the appointment of these two eminent persons to the NJAC by a panel dominated by two politicians or two figures keenly interested in exercising the power of the union executive; such siding of at least one of the two eminent member persons with the Law Minister, as stated, was distinctly and prominently feasible.

And such blocking of candidature of activist judges – a matter of distinct probability and feasibility as above stated – stood to be a considerable threat and attack on independence of judiciary and rule of law, both of which are basic features of the Constitution as long judicially settled and cannot be detracted from by any constitutional amendment such as that setting up the NJAC.

There are 24 high courts in the country. Their power to protect fundamental rights or other legal rights under article 226 and 227 of the Constitution of India is more flexible as compared to the power of the Supreme Court under article 32 to protect the same. The great deterrence that NJAC posed to the independence of the serving High Court judges and judicial activism at High Court level was a disaster. Thank God the NJAC has been struck down. Though one would have hoped of the quality of judgements striking it down to have been better. On the reverse side, the single minority judgement upholding the setting up of NJAC is absolutely riddled with flaws of reasoning.

Now the challenge before the Supreme Court is how to improve the functioning of the collegium system.

Now that the constitutional amendment setting up the NJAC has been struck down; the pre-amendment provisions of the Constitution – which had been interpreted earlier by the Supreme Court to give rise to the collegium system – stand revived.

The wordings of these provisions – namely article 124 and 217 of the Constitution of India – had given discretion to the union executive to consult such judges of the Supreme Court and of the high Courts as the union executive considered fit for the purposes of appointment of Supreme Court judges with the rider that the Chief Justice of India was to be necessarily consulted for appointment of judges other than the Chief Justice of India.

Now since only a handful of the senior most judges of the Supreme Court constituted the collegium dealing with the task of appointment of judges; the effect was to nullify the discretion of the union executive to consult such judges of the Supreme Court and of the High Court as the union executive considered fit for the purposes of appointment of a Supreme Court judge.

This nullification posed a substantial challenge to the legality of the collegium system as indeed argued vehemently by the government in the just concluded NJAC cases. The answer to this challenge in the NJAC judgement is far from satisfactory. A feeble answer has been given that the government is still free to consult such judges of the Supreme Court and high Courts as it may consider fit and there is no bar to that. The answer is feeble as such consultation is of no effect given that it is the collegium which matters so far as appointments are concerned. The Supreme Court has to improve the collegium system in a way as to give a worthwhile answer on this issue.

In law, no discretion of the executive or the government is unfettered. This is absolutely settled. This principle could have been utilised by the Supreme Court to lay down that the power of the union executive to consult judges of the High Court or the Supreme Court with respect to appointment of judges had to be exercised reasonably; which then would have given a scope to the Supreme Court to expand the collegium system in such manner as to give a worthwhile answer on this issue.

Where the matter of appointment of a Supreme Court judge is concerned; each High Court can send a nomination for such vacancy through voting by all the judges of a given High Court for the purposes of such nomination with the Chief Justice of such High Court having a casting vote in case of any tie on such nomination.  The totality of such nominations – with the Supreme Court Collegium having the power to add to such nominations – can then be considered by a much expanded collegium of Supreme Court judges. By including all the High Court judges on the issue of selection and appointment of a vacancy in the Supreme Court; it can no longer be said that the provision of consultation of High Court judges has been nullified. And by expanding the Supreme Court collegium to say 50% of the Supreme Court’s strength; the said collegium can be said to represent in a reasonable manner the views of the Supreme Court for the purposes of consultation with respect to appointment of judges to the Supreme Court. Why not including all of the judges of the Supreme Court as members of the collegium is advisable is because to judge the suitability of any serving High Court judge to a vacancy in the Supreme Court requires adequate experience with judgements delivered by High Court judges; which would exclude new and recent appointments to the Supreme Court from being members of the collegium. 50% of the total strength of the Supreme Court would be more in lines with reasonability for the collegium system to represent more adequately the views of the Supreme Court on such matters of appointment.

With respect to appointment of High Court judges; the Collegium has to call in nominations, if not already being done, from the Chief Justice of the concerned High Court – with the Supreme Court Collegium having power to add to such nominations – to make the collegium system more in line with the applicable provisions.

The question of consultation given by the judges on the matter of appointment of judges being binding doesn’t offer much difficulty. Consultations in certain cases are binding. Take the example of medical consultation. Dominant medical opinion given by respected medical practitioners ought to be binding; and is indeed, in practice, invariably binding. In the matters of governance, particularly with respect to the appointment of judges to the superior courts and the critical importance of the same, this ought of consultation to be binding – as given by a suitable collegium of judges – has to be binding.

One aspect which the NJAC judgements have ably answered is to point out that it cannot be said that executive has been side-lined in matters of appointment to superior courts. Intelligence reports – which can have the involvement of both the union and the state executive – plays a material role in the appointment of judges to the superior courts.

So, to reiterate, it is the working of the collegium system which has to be improved if the collegium system has to be within by and large acceptable meaning of the related constitutional provisions. Let’s see what transpires. But in any case, kudos to the Supreme Court for  striking down the NJAC, which was a disaster !!