The Author, Arun O Raj advocate by profession; practicing in Thiruvananthapuram Bar, since 2012. He has done his LLM from Dept. of Law, Central University of Kerala, Thiruvalla Campus in the year 2016 and pursuing his career in advocacy
RATIONAL NEXUS and INTELLIGIBLE DIFFERENTIA; what they actually mean? Are they strictly confined only to the executive-judicial actions or are they meant to be deal with our daily life activities? In this emerging social crisis; author thinks it is the need of time to discuss the same. Before entering into that, we have to understand, what is natural justice and theory of divine law? How come the principles of natural justice became so interlinked with the legal systems of the world?!
From the ancient times itself, when the humans became so called ‘civilised‘ for the sake of an orderly society and to avoid unwarranted chaos, they settled with some social norms in order to maintain a peaceful social life. Those norms varied from societies to societies, clans to clans. In general, those norms shared a uniqueness in its objective- to maintain an orderly society. Whenever the order of society got disturbed; either by war or other social activities, they conveyed a strong stimuli and underwent drastic changes, enabling its members to reconsider and to put forward with new ideologies and helped them to implement much better social system. Even though, the human societies has been experimental by its own nature, they learned from their mistakes and has been going on with TRIAL and ERROR method.
With the colour of religion, the society forced some of the norms to be followed by its members. Those norms, later became part of religious beliefs, played significant role in transforming and developing certain social structure. The TABLETS OF HAMURABI, MANUSCRIPTS OF MANU even the TEN COMMANDMENTS also played very important role in shaping a cultured social structure. Thus arisen the theory of DIVINE LAW. Those spiritual texts (later became part of certain religions), repeatedly commanded (argued); these are the primary principles for filling truthfulness and worthiness to human race and thus every one shall follow; otherwise the creator will shower his rage with no mercy. Hence, backed up with these myths preached by pre-historic humans who were trusted by the GODS; their betrayal and how the GOD reacted on them; through numerous stories like WAR BETWEEN PROMETHEUS and GODS OF Mt. OLYMPUS, PANDORA’S BOX, STORY OF GENESYS, EARLY FLOOD and various other MYTHS incorporated in various religious and spiritual texts around the world (to certain extend they are the same-only the character names change!!). They all had possessed a single objective; make the social life of humans, much oriented and place them as sacred ones.
The principles taught through religions, made the idea of STATE as a divine entity, created by the Almighty; posted the chieftain or king as the representative of Himself. The commands by the King were the commands of God and thus, the King can do no wrong. Somehow, some of those did succeed for few centuries; till the rise of new philosophies.
Aristotle, the Greek philosopher in his book Politics (4th Century BC), stated that the cities-the political associations created are for achieving happiness or achieving something good. As the humans are political animals who by nature, more savage and worse than animals. The purpose of social norms (law) is that to control that nature of humans. He describes a form of government which shares an idea of a family. Government should be virtuous to administer a state as a Master, as a Husband also as a Father of Child. The State should treat its fellow subjects as it is the master of them by compelling them to obey certain principles; as a husband in case of administering justice; and as a father by doing welfare things to its subjects. To be virtuous, Aristotle advises three rules to be followed.
- Avoid extreme action; even if it seems necessary.
- Learn the mistakes and avoid them to repeat.
- Be careful of those pleasures and things which may cause to lose your ability to take correct decisions.
According to Aristotle, citizens could be anyone, take part in the governmental process. Most of the citizens can be a part of governmental process. But, the virtuous citizens are the treasures of the state. They can be part of all administering process; as they would do, what is most appropriate and needful.
Though, man is a social as well as a rational being (Socrates); he feeds his brain with his thoughts and rational thinking; put forward new ideologies and philosophies ailing from centuries; hence, made the latter societies difficult to work under out-dated religious concepts. Not only that, when those representatives of God began to act according to their whims and fancies; the rationality of the subjects, beyond their nationality rose and started to question every acts of their King. The religious aspects were also questioned with rational thoughts; backing up with rationality and scientific proofs. To the most of the questions put forward by the rationales which the religious apostles failed to answer. Hence, they forced to shut-down the free-mind and free-will of its subjects and labelled the free minds as SATAN’S ACT; executed them. But, the ideology was never dead.
Whenever you oppress an ideology with physical force; it indeed evolve and rise again with sheer force, even after centuries (Spartacus-first man to fight for the oppressed-an ideal of freedom and equality; later the world identified it through French Revolution and later Communism identified the need).
The thoughts of the oppressed did rise again with more power through great philosophers and political thinkers the world ever witnessed; A V Dicey, Montesquieu, Rousseau, Karl Marx, Salmond etc. They changed the perspectives of the idea of the state and the political arrangements. Jean Jacques Rousseau in his book Social Contract settled a theory, in which he stated every society members have an uberimae fide agreement between each other to protect, respect and nurture others’ rights. This idea of social contract by the members gave rise to the Concept of Nation, where the King was not a representative of the Almighty, but the representative of the members itself. Thus, he possessed more duties and liabilities than rights towards his fellow subjects. Hence, the concept of state had a new meaning than its divine origin; made it more natural and understandable to common man (Rational thinking should help the lay man to think and understand a thing more simpler way; rather than makes an idea more complex and impossible to digest). Thus the actions under whims and fancies of a King became questionable. How those acts can be curbed, became a question. That time also, the rational thinking came into help.
Charles-Louis de Secondat, Baron de La Brede et de Montesquieu, generally referred as Montesquieu, a French political philosopher and a pioneer of French revolution in his book The Spirit of Law stated the idea of separation of powers, which greatly influenced the founding fathers of American Constitution and implemented the idea. He stated power corrupts; absolute power corrupts absolutely. Hence, the separation of powers was inevitable and considered as a best choice to avoid despotism. The Legislative, Executive and Judiciary shall not be handled by one and when the separation of power is applied; they shall not intervene into the duties and responsibilities of each other’s. Thus after the FRENCH REVOLUTION; once written constitution was again re-written by the citizens rectifying the former’s mistakes (virtuous men!!). The idea of Rule of Law propounded by Alfred Venn Dicey (A V Dicey) also played a significant role in building a modern society which recognises equality of humans.
While examining the development of the social structure, we can understand that; human societies were under constant treat and kept evolving all the time. The treat every society faced were both internal as well as external ones. Some of them happens only on the reason vis-major and others are nothing but act of men. For the actions arising solely out of natural reasons; the humans are helpless and there is only thing we can do for saving the fellow beings is to act wisely. No law or jurisprudence can come to help that social crisis. But, if a social treat is happened due to an unthoughtful, unprecedented, prejudicial act of a fellow member or of a group of such men; the law comes into rescue. How the law acts in such a situation is a serious question.
Before entering into the details of the aspect; let me remind you, what a Constitution is; as some among us are still unknown about the actual intention to have a Constitution in force.
Constitution is regarded as the fundamental law of the land evolved by time, incorporating aforesaid social norms and timely jurisprudential aspects. Later as the civilisations developed, it became a legal document which recognises the rights and duties of citizens and determines, how a sovereign government shall work. Constitution protects the subjects as well as the ruling ones equally. Anything beyond the principles underlined in the constitution would consider as ultra-vires and unconstitutional; thus void-ab-initio. Thus, any act (action or omission), any beliefs (religious or non-religious) must be confined to the aspects and basic principles of the Constitution. For that purpose, need of a Uniform Civil code (Art.44) makes itself a need of time and a mandate.
Now, let’s look into Article 21. The Article 21 of the Indian Constitution reads as follows; No person shall be deprived of his life and his personal liberty, except according to the procedure established by law. The Article in a single word can be described as the life breathe of people living in the territory of India. Without it, no right will sustain (though Dr. B. R. Ambedkar have a difference in opinion). Through various decisions, the Honourable Supreme Court- the guardian of fundamental rights (Article 32)- has incorporated various ideas of life into the frame of Article 21 (Right to life includes; privacy, dignity of labour, fresh water, fresh air, right to be informed etc.) and it were great judicial activism. Not only that, the Article 21 itself represents the idea of natural justice (Maneka Gandhi v Union of India).
What is natural justice? Natural justice, is a technical English law terminology for the rule against bias (Nemo judex causa sua) and the right of fair hearing (Audi alteram partem). In lay man’s words it can be defined as the set of principles or procedures that can be felt to be morally right and fair to a prudent man or duty of a person to act fairly (indeed arisen from the idea of virtuousness of Aristotle). Thus, we can understand that, there exists a lot of principles which could be categorized as natural justice. But, the above two were adopted to the legal system for proper rendering of justice. Why the principles of natural justice is followed by the courts of law, if it’s more over combined with ethical and moral principles; is a question.
The morality and norms were established by the earlier societies to observe a good well defined social order. Later, with the advent of modern legal principles; the moral principles were incorporated to the statutes as legal principles to get itself a recognition. If we examine the any modern legal principles, you can find an ancient jurisprudence of morality among them. Then, why morality or a norm has given a legal recognition? That’s because; as we discussed earlier, when the society began to think beyond religious boundaries, the religious principles failed to contain the acts of humans within the boundaries of social ethics. Thus, those moral principles have to evolve themselves, to much stringent legal measure for curbing a social menace.
But, what is the need for the modern legal system to adhere natural justice principles; as the legal principles are well settled with a strong back - the Jurisprudence of various schools! The answer is, by adhering to the principles of natural justice, while deciding a matter; it would be more convenient for the people to believe that the matter was decided in a fair and just manner and thereby the accountability and impartiality of judiciary will be upheld. Above all, by adhering to the principles of natural justice; the miscarriage of justice is prevented. In short, it is “fair play in action”.
Every act should be fair and just is a moral presumption of a living society. In order to maintain peaceful transaction between the members of the society, fairly play is indeed a necessity. For an act to be just and fair; it primarily have to be a reasonable one. No act of unreasonableness can be justified either by fact or law; thus, it would be unfair. It was in Kruse v Johnson (1898) 2 QB 91; the Lord Russel laid down a proposition over the unreasonableness in a limited sense; moreover, strictly in a legal sense. If the statutes are found to be partial or unequal in its operation, to certain classes of society, if it manifestly unjust or having no bona fide intensions or involve in oppressive or gratuitous relations inter alia with the rights of the subjects and find no justification in the minds of prudent men; it would be an unreasonable statute hence ultra vires to the authority. In McEldowney v Forde (1969) 2 All ER 1039, the statute having vagueness, ambiguity, uncertainty, arbitrariness and having no bona fide intensions, makes it unreasonable by all means.
In Mixnam Properties Ltd v Chertsey VDC (1964) 1 QB 214, the Queen’s Bench laid down a test for checking unreasonableness. The kind of unreasonableness which invalidates a statute in not the antonym of reasonableness in the sense of which it is used in common law; but, such statutes whether manifest arbitrariness, injustice or partiality which is not an intension of Parliament; to that extend, it would be unreasonable and ultra vires. In Ridge v Baldwin (1963) 2 All ER 66 where the respondent was denied an opportunity to be heard by the deciding authority; it was held, while deciding a matter; one should observe principles of natural justice. This jurisprudence was adopted by the honourable Supreme Court of India in Maneka Gandhi’s case.
In Maneka Gandhi v Union of India; AIR 1978 SC 597 where the appellant’s passport was seized without proper cause and the authorities concerned were of the contention that, there is no provision of issuing notice for the act was specifically included the Statute. The honourable Supreme Court of India held that, the principles of natural justice as well as rational nexus is implied in every statute and there is no need to specifically mention the same. There shall be a rational nexus to every act and provisions with its objectives.
The rational nexus means the logical relation between an action and effect; which is understandable by a prudent man. Understanding that relation is indeed not a rocket science. Usually, a man understands a thing in three ways; 1) by Observing; 2) by Learning; 3) by Experience. Understanding a matter from experience may not be his own experience; it may be learnt from others’ experience too. For example; you need not be self-experienced after seeing one slipping off the stair case due to own careless act, right?! The fairness and justice will follow if the actions have a rational nexus; even if, it’s not explained. That’s where the proper application of mind comes into play; intelligible differentia (the capacity to differentiate things).
Every human being possess his own capacity to acquire and understand certain things. Mostly, he gains such ability through the practical experiences. The ability to understand and differentiate things; proper application of mind at right moment, makes him; a prudent being. How proper application of mind can be done is not defined in anywhere. But, when it comes to judicial actions; proper application of mind shall be done primarily by observing natural justice principles; then only the ends of justice shall meet.
Even though the principles of natural justice; intelligible differentia and rational nexus are formulated and adopted to the actions of the state is for the purpose of better administration, thereby curbing the abusive actions of the state and make them fair. Though, the reasonableness is not limited to the actions of the state. The idea can also be adopted in an individual’s actions. Proper application of mind and doing an action with due care and caution; understanding the possible consequences can bring peace and order to one’s mind as well as to the society where he is a member. Some of you will be wondering why the author took such a long journey to preach this simple etiquette; trying to bring some social order in some individuals’ behaviour. Why the author tried to define the term rational nexus through legal aspects and judicial decisions to convey such a simpler thing? Law is nothing; but logic. The law was evolved through the human minds and through the social activities. As we discussed earlier, the norms set-upped to control the social behaviour of individuals; as the time passed, those norms became necessity for the society, to enforce them with compulsion; then law evolved. Thus, through judicial decisions it may further easy to understand what actually rational nexus is and its importance in our daily life?
As the principles of natural justice is “ever widening phenomenon”; where new principles are being evolved by judicial actions. In my opinion, adhering to the principles of natural justice, rational nexus and intelligible differentia in social life would make the relations between the members more strong and it can provide unnecessary frictions between the relations. Take some time to hear the other party; then by applying proper mind as well as idea of rational nexus could provide us with much safer and legitimate distance among relations. Most of the relations are ruined because of unwarranted conversations; which lead to unnecessary actions and becoming non virtuous persons. So it is better good to have in mind to bring rational nexus to every actions we do in our daily life; it would bring fairness and justice. It would be duty of a virtuous citizen to his state and then our state shall be at par of excellence everyday.
