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“I am unjust, but I can strive for justice, My life’s unkind, but I can vote for kindness. I, the un-loving, say life should be lovely, I, that am blind, cry against my blindness”. We, the lawyers are still like cavemen with our back turn to light watching the shadow of the wall. There is an iron cage, not having any ventilation and people are living in the state of suffocation, virtually on the verge of their death point. There is a complete apathy of the custodian of the power towards their welfare and in our country "We, the people" who are regarded to be the sovereign of the nation are living a life full of abrogation and subjugation. I seldom consider that whether it is worthwhile to shout a voice and thereby invite some lighter sleeper to suffer the agony of the death and this purpose achieved through my writing may serve some purpose. Since the daylight shallow the darkness, I have written articles to take the intellectual from apathetically approach towards rectification of prevailing maladies as to wake up. The politicians have imposed mindless socialism, which held in thrall the peoples endeavour and enterprise resulting in transfer of potential from the honest benevolent to the dishonest opportunist. We are now slave of destructive elements and foreign ambitions. Politicians act in nefarious designs with impunity. Political parties motivated with vested interests are dancing to usurp power through any means, fair or foul even at the cost of sacrificing the Nation’s existence to personal interest. Party systems have pushed to advance its own schemes upon the ruin of the rest. Our politicians are Mafia dons next to the invaders. Robbers have generally plundered the rich who are seldom subjected to legislation always plunder the common citizens and protect those Mafia dons under the phraseology of “law making sovereign power” having the connotation “procedure establish under law to be cherished instead of due process”. There is always an excuse for tyranny and mal-administration, which has degenerated the national character. The power given needs a safeguard from such arbitrary power and unfair exercise. In present set up freedom has become an abuse and liberty as licence. Therefore the moral damage is more terrible. An oppressive system is more to be feared than a Tiger. Deep needs to express thought; Profoundly sickening to compel; Remain silent at expression; Limitation of freedom of thought; Is attack on social rights; As spiritual force is stronger; Than any material force; As thought leash to average conscience; By the necessities of fatal policy; Time is free-fold present,: as we experience it, the past, as the present memory and future, as a present expectation .The expectations can not be the same and as anticipation. It is different from a wish, a desire or a hope nor can it amount to claim or demand on ground of a right. A pious hope even leading to a moral obligation can not amount to a legitimate expectation in the strict sense. The protection of such legitimate expectation does not require the fulfillment of the expectation where an over riding public interests require otherwise. Thus even if substantive production of such expectation is contemplated that does not grant and absolute right to a particular person. the protection is limited to the extent of judicial review. To strike down the expectation of an individual adrift to the pragmatism. Thus millions of people belonging to the deprived and venerable section of the humanity were looking to the courts for improving their life conditions and making back human rights meaningful for them. The Hon’ble Supreme Court acted as an instrument of status quo-upholding the traditions of Anglo-Saxon jurisprudence and resisting radical innovations in the use of the judicial power to promote social justice under the republican constitution till early 1970 with some Hon’ble expectations, but in the light of a social economic philosophy alien to our freedom movement and aspiration of the liberated people, the Apex Court has started a giving importance to the rule of Law with “tryst with destiny”. The outstanding judicial activism in the quest for social justice came by the enormous contribution of Hon’ble Supreme Court in the recent years. The use of new found judicial power in the service of “WE THE PEOPLE OF INDIA” who has often being represented in the judicial forum have always been at the receiving end of mal-administration and exploitation.
There is a most vital question, which is require to be dealt with by the lawyers that since there is nothing in the legislation against an officer passing an illegal and absurd order with malafide intention in due discharge of his duty, contrary to the purposes, for which the duty is so enshrined to him and for distant extraneous consideration. What Remains with the party affected by such a reprehensible conduct, except to approach the Hon’ble court, which is only assigned with power to rectify the error of law. This has provided the burden upon the courts to conduct the administrative functioning in absence of legal acumen –ship with the officials discharging official function of Quasi-Judicial Nature. Thus the participation of lawyers are required in legislative functioning as well in the Executive side by given them the representation in parliament and legislative assemblies as well as law officers in every departments. There is only one individual Fundamental Right in chapter III of our constitution with some collective fundamental Rights, i.e. Article 19 and Articles 25 in our constitution of India. Unfortunately we have completely forgotten the restriction impose for entertaining the Writs under Sub Articles 2 to 6 of Article 19 in our constitution while filing and entertaining the writ petition. However, notwithstanding , when the Judiciary at the Apex level found that the Government has now failed to discharge the duty castled upon it, then the other articles couched in negative language were required to be interpreted in the positive dimensions. This is the reason of excessive burden upon the lawyers and ultimately upon the Hon’ble Courts. It has always being considered with due respects that the lawyers are playing the role of the mothers by provided their valuable assistance in administration of the Justice to the Society and for this Purposes, Hon’ble Judges of High courts and Supreme Court are called as Hon’ble Justices and not by the name of the Judges, like that of the Subordinate Courts in the hierarchy of Judicial institution. If we have the strict enforcement of the power given in our constitution, there will be hardly some cases, which we may deem to be strictly amenable within the jurisdiction conferred under article 226 of the constitution of India. It will be instructive to sun up this discourse with the observation of Hon’ble Chief Justice Bhagwati in Sukh Das. “It is common knowledge that 70 percent of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis-oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advice in time and their poverty magnifies the impact of the legal trouble and difficulties when they come. More over, because of their ignorance and illiteracy, they cannot become self-reliant; they cannot even help themselves. The law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programme for putting an end to their exploitation and winning their rights. The result is that poverty becomes with them a condition of total helplessness. This miserable condition in which the poor find themselves can be added to situations” (1986) 2 SCC 401). Accountability of a lawyer has been fixed in three dimensions picture. There has been the accountability of the lawyer toward the litigants, as the professional ethics. Simultaneously, there is also a accountability towards the court to maintain the esteem of justice by providing a valuable assistance, while the Hon’ble courts are busy in delivering of the judgement. The foremost and the most important duty and liability of the lawyer is towards providing the legal rights to the public at large, which is seldom discharged by them. Amongst these three liabilities, the former duty is associated in the daily activities for which there have been the provisions under the Advocate’s Act and the Evidence Act. Except by creating legal awareness amongst the poor, which is the foremost requirement; that is why it has always been recognised as one of the principal items of the programme of the legal aid movement in the country to promote legal literacy. It would in these circumstances make a mockery of legal aid it were to be left to a poor, ignorant and illiterate accused to ask for free legal service. This is the reason why the Hon’ble Court has ruled in Khatri II case that the Magistrate nor the sessions judge before whom an accused appears must be held to be under an obligations to inform the accuses that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the state. The Hon’ble Court also gave a general direction to every State in the Country to make provision for grant of free legal services to an accused who is unable to engage to a lawyer on account of reasons such as poverty, indigence or incommunicado situations (1986 2 SCC 401). In the judges Transfer Case, Hon’ble justice Bhagwati declared that law in the following terms: where a legal wrong or a legal injury in caused to a person of violation of any constitutional or legal right… and such person or determinate class of persons is by
reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in the Supreme Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. (1981) Supp. SCC 87). The Hon’ble courts are also supposed to call the Advocates for their assistance with due respect in discharge of duty pertaining to the responsibility of the lawyers by calling for their proper assistance. Simultaneously a question arises that how far having their reciprocal obligations upon the party, who has imposed the liability and responsibility assigned to the lawyers, is discharging these accountabilities. Thus, it is the foremost requirement, that the Advocate should have been respected with the equal respect, which the courts may realise to be given to them for proper maintenance of the esteem for administration of justice. This is a dedicate balance, which is necessarily to carry forward like the cart by having propounding balance upon both side of wheel to be dealt with. Unfortunately, there is a gradual decline in the standard to maintain the aforesaid yard stick being controlled and maintained from all the three sides in our Judicial System The main reasons for the aforesaid decline is the burden of the litigation, where the expectations of the litigants are having their natural desire to get the prompt justice. The delay in disposal of the cases on account of the cumulative pressure exerted from all the corner upon the functioning of the court for dealing with the variety of the litigation by inadequate strength of the Hon’ble Court is one of the most prominent cause for disrupting the noble profession of the lawyer. The Hon’ble Supreme Court on number of the occasion has highlighted the necessity for maintaining the cordial relationship between the bar and bench. The legal ethics associated with the obligations being discharged in this regard has also to be respected and safeguarded by the active co-operation of the lawyers. The intentions to interfere with administration of justice and the aspersions with disparaging remarks on the functioning of the courts, has now been considered sufficient for committing the contempt of the court. Let us examine the delicate issue on the question of the accountability of the lawyer and the initiations of the contempt proceedings and the power there of conferred upon the Hon'ble courts and the subordinate courts . The advocacy is not a craft, nor it is a trade or business but it is a calling for fighting against the injustice committed upon the individual who is coming for being rescued under the administration of the justice by propounding the cause through the lawyer for getting the proper remedial treatment but if on account of the compulsions of the surrounding circumstances, the matter is not heard finally then the accountability even for non disposal of the cases by the Hon’ble court is shifted upon the shoulders of the lawyer. Thus the lawyer in present situation is acting like the shock absorber between the litigant and the Hon’ble court and mental agony to the lawyer is quite proportionate than that of the burden upon the Hon’ble courts to deliver the prompt justice. Thus there is seldom a misbalance visualized for maintaining the cordial equilibrium which is supposed to be carried out by harmonious functioning for moving forward the cart of the justice. This aspect of the picture has now being over-looked by the Lawyers and at some instances by the Hon’ble courts, while exercising the power of contempt against the lawyer. The accountability of the lawyer is there but unfortunately there is no accountability fixed in respect of the functioning of the Hon’ble court by our Constitution. The speaking of truth is also contempt. If it is meant for disparaging the sanctity of the court. Thus it has even to discuss with introspection and cautions. All the members of the court are considered as wounded, where justice is found wounded with inequity, and judges do not extract the dart of inequity from justice or remove its blot and destroy inequity, in other words where the innocent are not respected and the criminal are not punished. A virtuous and just person should never enter a court and when he does so, he should speak the truth; he who holds his tongue on seeing injustice done, or speaks contrary to truth and justice, is the greatest sinner. Justice destroyed destroys its destroyer; and justice preserved, preserves its preserver. Hence, never destroy justice, lest being destroyed, it should destroy thee. In this world justice or righteousness alone is man’s friend that goes with him after death. All other things or companions part on the destruction of the body and he is detached from all company. But the company of justice is never cut off. When injustice is done in the government court out of partiality, it is divided into four parts of which one is shared by the criminal or doer of injustice, the second by the witness, the third by the judges, and the fourth by the president king of an unjust court.
In my childhood, my teacher taught it to me in the classroom that “What ever you do; Do with your might; that is the way to be healthy, wealthy, and wise”. Subsequently, there after my father told me just few months before his death when I completed my 18 years of age that “Thou thy path be dark as sky; There is a star, thy path to guide, So trust in god and do the right “. By the gradual process of up and downs in my life, I could have been able to learn through my experiences that what we may be able to get through the grace of god are not the scattered love, nor the success and wealth but the knowledge. Thus I have started worshipping the almighty with the following prayer. O, gods to thee I pray increase my knowledge day by day. It is only now after attending the respectful command amongst the members of the Bar and Bench that I have started thinking that all these notions in my life are based on the correct foundations. This is my firm determination that what ever I may be able to achieve in my life that will be dependent on the out come of my efforts on these guidelines and none else. Notwithstanding, there are the fluctuations in the formation of these notions, which provides me a sense of mental agony, frustration and disappointments in life. There is the profound bleeding at my heart on the psychologically region which seldom gives me an effect of chafing of the wound before it can be healed. This is the painful reminder of the lost empire, which was built on solid foundation. It is gradually obliterating. The plights of such advocates are remarkable in respect to their struggle, for which have nobody to support them. These advocates are put to the disadvantageous position in their struggle for existence. They are not having the shelter to protect their head nor any guardian to guide them. There is no sympathy with these advocates, who have settled from outsides. Since, the adversities are the touchstone of brave mind, they keep on doing the struggle and by the passage of time, they may enjoy a respectable position at Bar. The crucial conditions are still having their predominating conditions in the legal profession. This is on account of their non- adaptability in the profession by such fundamentalist elements, which provide the top priorities to the conservative approach instead of liberal out look towards them. There is the negligent proportionate of representations to such lawyers having no background to support them from their forefathers in the elevation prospects as the members of the Bench. The names are recommended on the advises of the senior judges. Thus the predominating factors in the orthodox Indian society are seen on floor of choice. The unfortunate newcomer from the outside, who have the better experiences towards the problems of life, are put to the disadvantageous situation in the matter of their selection. This is the hard reality of the day after the changes in the selection procedure by the judgement of the Apex court. This is the cause of the resentment of the large members of Bar Association. Justice is a virtue, which transcends all barriers in the way of administration of justice. This is the acknowledged position of law that no party can be forced to suffer for the inaction or omission on the part of law enforcement agencies and whosoever he may be strong. Every decision will be passed according to the procedure established by law. Thus the law has to bend before justice. No court can restore the broken heart of the justice and he should provide such protection, which is necessary for them like dutiful parents. The decision may not be repugnant to the normal concept and the basic unit of the society may not be allowed to be influenced by immorality. Thus the ultimate responsibility is by enunciating the foundation of a system on which administration of justice may get the public confidence in our judicial system. The just and social duty is cast upon the legal profession. This is possible by the conduct and action of the people associated with legal profession by obliterating the inequalities as uneducated and exploited mass of the people may get a helping hand. What is legally due is to serve the duty and it is not worthwhile for an Advocate to become the spokesman of the litigant irrespective of the fact whether his cause is meant for sponsoring the justice to the society at large. The conduct anticipated in this manner is befitting from his status by upholding the high and honorable profession. There are the high expectations from, and advocate, which is fair, reasonable and according to law. There is the gradual decay of the above noted standard and the participation in the legal process, which should have been conducted completely flawlessly, and foolproof, they are picking out the lapses by expressing unsavory criticism. The consistency is now been considered as no virtue and the obligation of judicial conscience, which was meant to correct the error is manifesting like uncontrolled epidemic. This is the reason why the legal profession is not been accepted as a noble profession. The proceedings are dependent upon the remedies available under the law. Every act of statutory body which must have been exercised by keeping the purpose and objective meant for enshrine the statutory power with the authority should have been
exercised by keeping the object of such power which is meant by the statute and not with other extraneous consideration, otherwise the fraud will be perpetuated and the faith and belief shall not be subjected to any judicial scrutiny. Thus an accountability is must whenever as wrong is corrected. Some time in such matter of adjudicating without any valid cause, the court unwittingly becomes party to the miscarriage of justice. The judiciary is an ultimate interpreter of the constitution, which is assigned with a duty of the delicate task ensuring that the action of the authorities vested with the statutory power may not breach or transgress its limit. It is distressing that an unscrupulous litigant in order to circumvent the due administration of justice of the court seldom found by adopting a dubious recourse of ingenious methods. These includes the filing of fraudulent litigation to defeat the right of the other person and such tendency deserves to be curbed out by passing the appropriate orders to provide a check upon such unhealthy practice and also by issuing necessary directions including imposition of exemplary cost. This is required for strengthening the belief of the common man in the institution of the judiciary. Creation of such faith may result in reaching the excellence in the profession. The credibility of the judicial institution is founded upon the faith of the common man in its proper functioning. The faith would be eroded and the confidence destroyed if the officials deployed with statutory duties may start acting subjectively and not objectively. Society expects honesty and integrity and thus the official must be taught to act fairly, unbiased and impartially. The purpose of the court is to see that the society does not loose confidence and as such the court itself may not consider themselves that they are above the law. In appropriate cases even the court may find to pull down the shutters of adjudicator jurisdiction before a party if his conduct is not subjected to be entertained against the so called grievances which is not genuine. The exercise of judicial discretion is founded on the well recognized principles established by law . The menace of frivolous litigation may not be permitted to be hidden under the rigmarole of legal technicalities. The realities of the life have to be kept in mind while appreciating the evidence. The court is not oblige to make efforts to protect the guilty of polluting society and man kind. Thus in exercise of the constitutional power of the High court, the endeavor should have not been given for impairing the cause of justice by the court itself. The legal profession of an advocate is certainly having certain professional obligation, which are distinguishing from the business commitments. Thus if the court may not participate in the activities of providing justice at large, it is not permissible to get the injustice permitted by it by entertaining the frivolous litigation and to make them burden some to a common people. Trafficking in doubtful claims, one of the least attractive phase of litigation in this country, which find no encouragement in such a system, while the right of the creditors are post code with a jealously not less scrupulous than that which we find in the system with which we are more familiar. The order of lawyers are conservative by instinct and there are not a few who believe not only in the necessity but in the absolute sacredness of every technical rule, however unreasonable, and who see nothing but peril in innovations, however beneficial. The lawyers are always having perplexed with fear of change. He knoweth not the law who knoweth not the reason there of, therefore, it is not advisable to live in cloistered seclusion, detached from the world and all its pursuits. If you are ever tempted to join in the fierce hunt after the vulgar prizes of the world, remember that after all. That accretes and frets his hour upon the stage, and then is heard no more. “There is a land in the present age, Where the people live in graves Liberty, freedom all unknown, Service and be slaves. The people are living in free past glory of their own, As an outright, beggars would had sung, Well once upon a time. I was a king When such of the attitude of the people How can they get the freedom, Least to talk of liberty. Yet a certain day may come When the people will hum In the orchard of freedom Taste the juice of liberty”. (Not hearsay, not gossip, not publicity, but action.) Legal justice, with a humane mission, must update itself to legitimize progressive urges, discern the reality of social changes and design its delivery system, so as to obviate the dominance of the Proletariat by the Proprietariat and accelerate people’s access to
effective, litigate justice. The contemporary command of social justice, which is also the socio-economic demand of the common people, is that the prevalent forensic astigmatism shall be corrected by sloughing off archaic, arcane authoritarian procedures which often spawn the paradox of a wealth of abuses and a poverty of access vis-à-vis institutions of legal justice. It has been rightly observed that civilisation beings in order, grows with liberty and ultimately dies in chaos. As such civil liberty are always safe as long as his or her exercise do not bother anyone. No state can justify the existence of administration of justice, if it fails to perform the maintenance of right within a political community by means of physical force of the state. Our present Administration system and judicial institution are nothing to do with the steady spontaneous growth of deteriorated state of our society, which is considered for vacillation of purpose and exhibited in those experiments. The conflicts of opinion and rivalry of interest influence them. There is no steady advance towards higher condition of progress. If it require by reason is power of law which is incapable to keep society in awe and as such it is not possible for an individual to live in society. Legal justice can only be represented through collective wisdom which is to be preferred to the wisdom of any individual. Legal justice has failed to serve the purpose of society because it is becoming more complicated and right as well as conservative as a result it gives more importance to form than to substance. Life is a sylock, always it demands, the entire world worship to ascending sun. A successful man is always for bidder of individual success. Ultimately we have to choose between the reason and sentiments. We have to stake our life to win the life for our self. A small movement may best serve as an instrument to serve its own way. The strong is strongest when alone. The impossible is often untried. We should not forget to Tennessee’s charge of light brigade. Rectification of an order thus stems from the fundamental principles that justice is above all. It is exercised to remove the error and not for disturbing finality. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in administrative law as in public law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction. The erroneous assumption that in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid to recall an order. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice and as such no action can be permitted which may shake the very foundation itself. The rule of law is the foundation of a democratic society. The judiciary is the guardian of the rule of law and if the judiciary is to perform its duties and functions effectively and remain true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts has to be respected and protected at all costs. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities that do not occasion failure of justice are not allowed defeating the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They can not be perverted to achieve the very opposite end. That would be a counter-productive exercise. Law is a living organism and its utility depends on its vitality and ability to serve as sustaining pillar of society. Contours of law in an evolving society must constantly keep changing as civilization and culture advances. The customs and mores must undergo change with the march of time. Justice to the individual is one of the highest interests of the democratic State. Judiciary can
not protect the interests of the common man unless it would redefine the protections of the constitution and the common law. If law is to adapt itself to the needs of the changing society, it must be flexible and adaptable. Law is a social engineering and an instrument of social change evolved by a gradual and continuous process. History and customs, utility and the accepted standards of right conduct are the dorms which singly or is combination shall be the progress of law. Law is the manifestation of principles of justice, equity and good conscience. Rule of law should establish a uniform pattern for harmonious existence in a society where every individual would exercise his rights to his best advantage to achieve excellence, subject to protective discrimination. The best advantage of one person could be the worst disadvantage to another. Law steps in-on to iron out such creases and ensures equality of protection to individuals as well as group liberties. Man’s status is a creature of substantive as well as procedural law to which legal incidents would attach. Justice, equality and fraternity are trinity for social and economic equality. Law is the foundation on which the potential of the society stands. Law is an instrument for social change as also defender for social change. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme. There may not be any occasion to entertain misgivings about the role of judiciary in outstripping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set-up to which the policy is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective fields. When the misuse is within tolerable limits, no uproar is heard, no media publication is seen. But when the magnitude of misuse assumes a menacing proportion, outburst of various types becomes noticeable and then a scam surfaces. A lawyer owes a duty to be fair to his client, but also to the court as well as to the opposite party in the conduct of the case. Administration of justice is a stream, which has to be kept pure and clean. It has to be kept unpolluted. Administration of justice is not something, which concerns the Bench only. It concerns the Bar as well. The Bar is the principal ground for recruiting Judges. No one should be able to raise a finger about the conduct of a lawyer. While conducting the case he functions as an officer of the court. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honorable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other profession in that what the lawyers do, affects not only an individual, but the administration of justice which is the foundation of the civilized society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior”….If the profession is to survive, the judicial system has to be vitalized. No service will be too small in making the system efficient, effective and credible”. It is fundamental that if rule of law is to have any meaning and content, the authority of the court or a statutory authority and the confidence of the public in them should not be allowed to be shaken, diluted or undermined. The courts of justice and all tribunals exercising judicial functions from the highest to the lowest are by their Constitution entrusted with functions directly connected with the administration of justice. It is that expectation and confidence of all those, who have or are likely to have business in that court or tribunal, which should be maintained so that the court/tribunal perform all their functions on a higher level of rectitude without fear or favour, affection or ill-will. The Judges are participants in the living stream of national life, steering the law between the dangers of rigidity on the one and formlessness on the other hand in the seamless web of life. The great tides and currents which engulf the rest of the men do not turn aside in their course and pass the judges idly by law should sub serve social purpose. Judge must be a jurist endowed with the legislator’s wisdom, historian’s search for truth, prophet’s vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the constitution and the Act with its interpretative armory to articulate the felt necessities of the time. The judge must also bear in mind that social legislation is not a document for fastidious dialects but a means of ordering the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable of expanding freedom of the people and the legal order can, weighed with utmost equal care, be made to provide the underpinning of the highly inequitable social order. The power of judicial review must,
therefore, be exercised with insight into social values to supplement the changing social needs. The Judge can not retain his earlier passive judicial role, when he administers the law under the Constitution to give effect to the constitutional ideals. The extraordinary complexity of modern litigation requires him not merely to declare the rights to citizens but also to mould the relief warranted under given facts and circumstances and often command the executive and other agencies to enforce and give effect to the order, writ or direction or prohibit them to do unconstitutional acts. In this ongoing complex of adjudicator process, the role of the judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality. The society demands active judicial roles, which formerly were considered exceptional but now a routine. The Judge must act independently, if he is to perform the functions as expected of him and he must feel secure that such action of his will not lead to his own downfall”. Written by YOGESH KUMAR SAXENA ADVOCATE HIGH COURT
Vice- President Advocate’s Association, High Court Allahabad Vice President Of All India Lawyer’s Union U. P. Unit At High Court Allahabad
CHAMBER NO.139, HIGH COURT, ALLAHABAD R/O-H.I.G.203, PREETAM NAGAR, ALLAHABAD PHONE-637720/436451
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