India -A functioning anarchy The birth of a socialistic pattern of society and mixed economy in the first decade of independence
without any priority to defence production and for sound economy provided initially to confounded speculation about India’s starvation. There was settling down to take in its stride by the super nations, but their apprehension was belied by emergence of Shri Lal Bahadur Shastri as Prime minister. His favourite virtue of simplicity, outstanding characteristics of singleness of purpose and basic idea of rectification of wicked evils of exploiting the resources has converted the country revolution and simultaneously boosting the moral of our Army gave the success in 1965 Pakistan’s aggression and thereby capturing a vast territory of enemies land has provided the moral damage to the aggressors ambitions . Indira Gandhi vanquishing the predatory neighbour Pakistan for ever as the hesitant dictator , but her wrong diplomacy survived the terrorist decade of a fighter . Thus the first face of India’s socialism was replaced by populism replacing ideology and also absorptive nationalism and by embracing popularity oriented party policy . It began with profit oriented private and a quality unconscious public sector with narrow vision to make India a global economic power , but this utopian empire has been completed vanished in view of different conflicting ideological political differentiation due to parliamentarian system in the post independent era of our country . Our potential of unlimited reservoir of skilled labour and abundance trader’s skill for investment of capital have been submerged with diversification of vested political ambitions . This has provided an obstacle to our inherited great skilled splendered intelligence and our super entrepreneurial spirit to naught. The unified political entity under British rule is now ahead to further split due to regional based political conception . The constitution of India designed to equip with substance to meet the challenges of the future in its spirit is now playing a role like a compulsive gambler bent upon ascending our invaluable legacy providing to be caricature of noble democracy . The spirit of social justice has been given up with no chance of its revival through shells of socialism making this preposition as fraud with people . This has provided the provided the transfer of material resources from honest to dishonest opportunists instead of poor people. There are 240 public sectors enterprises by union Govt. and nearly 700 by the state Govt , which are the black holes ; the money guzzles and they have been extracting an exorbitant price for Indian doctrinal socialism . The most persisting tendency in India has been to have to much Govt. and too little administration , too many laws , too little justice , too many public servants and too little public service, too many controls and too little welfare. The great mistake initially was to start with Adult Franchise . This should have been started with restricted system franchise and to make citizens graduated to Adult franchise and they may be worthy of discharging their duties through some value based education . The result is that our half of the population is literally illiterate . This is a state of mobocracy in the strife of moral decay with the facts of in-discipline , corruption and castism , divisiveness with communal hatred , linguistic fanatism regional fency and caste loyalty are growing at the vitals of the unity And integrity of country. Interfaith and harmony and consciousness and essential unity may stop growing army of terrorists and professional terrorists , professional hooligans in order to save fellow citizens . The profound shells of culturally a kin , ethically identical , linguistically knit and historically related may remain intact , if we acquire a inner sense of national identity . We can only gain the wisdom of cherish its priceless heritage and create a cohesive society, if we adopt the ideas for implementation in correct prospective instead of talking more about them. The power entrusted under the rule of law with the authority dealing with Govt. business is required to be discharge truly , objectively, expeditiously with personal responsibility and it should not be leisurely taken due to obvious considerations , otherwise there may be the imposition of the costs for committing public injustice and to give the manipulators an opportunity to compound the camouflage and it may become counter productive with for reaching affect on public Administration exchequer deflecting the course of justice . Now Bureaucracy is only accountable to the political executives and hierarchical responsibility is in built discipline .Thus there must be judicial accountability and review over the quasi judicial decision taken by the executive with proper accountability by imposition of the punishment and personal costs against the erring officers responsible for such injustice . The other factor requiring attention is for having a single window system in every public office with a senior officer found responsible in case of undue harassment to the public .It is high time to dealt with criminal activities with a presumption of guilt against the accused person as the plea of innocence is in contradiction of making arrest of individual involved in the crime .The fake entry in the revenue record , illicit means of registration , unauthorised possession land grabbing with the connivance of police officer are discontent strife for the commission of crime . The annihilation of the department record vested with property right is another source of providing resentment to the actual owner Vs ostensible possessors raisins construction. Thus these atrocities committed by the public authorities should be dealt with a exemplary punishment like that of the crime of financial irregularities and embezzlements. Our political master subverted the freedom of bureaucracy and moral values gradually disappeared . The greater the power vested in politicians, there is danger of becoming intolerant and authoritarian .There is gradual deterioration of extra-ordinary sagacity and wisdom with the custodian of public trust .There are dark cloud over our independence of judiciary . The Solomon’s throne representing to the judicial system is now supported by two lions representing
the legislature and executives on both the sides . Although lion is still under the throne as it may not oppose the point of sovereignty vested in the rule of law , but still the Solomon’s conscience may be priced by sitting on chair of handicapped sub-silent instead of its own and thus the separation of power is the utmost consideration for the democratic values , for which the superior courts may play an active role to eradicate the evil of corruption . The solution lies in gradual transformation of power from the authoritarian type to the benevolent use of power by our politician . There must be an assurance for the right to work to every citizen .There should be the transparency in the functioning of their department dealing with the people in exercise of their duties in the welfare state. The barriers providing the restriction in dealing with the distribution of essential commodities which are perpetuating corruption should be dealt with appropriately as it may repose the confidence of the people in the present system and there by avoid them from suffering unnecessary harassment . This can be done by fixing the accountability in every system and against such individual who is vested with the power to dealt with the public otherwise the country may collapse by its own pressure . The system of caste , money power and criminalisation of politics has further provided the electoral system to a naught and it has been ridden with corruption without fulfilling the aspiration of the electorate and as such there is desirability for changing the present parliamentarian representative form of government to a responsible government which may have is wise for uplifting the cause of downtrodden in the society but may seldom exploit them to use for its own benefit .Thus the country may be saved from its own peril. IS IT DEMOCRACY Napoleon Bonaparte said; “The crown of France was rolling inside the gutter, I simply picked up it, and put on my head”. The religion and caste division amongst Hindu were being exploited by the invaders. British’s sponsored the policy of divide and rule while politicians adopted a policy of the divide and spoil for their narrow gains in spite of the fact that it may be a threat to the nations unity and integrity of our country. Now nobody is looking forward to the vast problems of poverty, ignorance and disease. The divisive it forces of caste & religion imbalances through strong and resurgent India. Battle of Panipat and battle of Plassy were not fought due to such divisive forces on the caste line but they were conquered by making ourselves slave to our destiny by different dynasty. Excellence and social equality with greater attention to socially disadvantaged minority group was essentially required to be given pre- dominance to check up global economic scenario annual. There is no leadership of extraordinary commitment and alertness as in accordance with the changing emergence of technological and intellectual impact on our society, but there is role entrepreneurs invigourous wealth creation through a radical change inn our character . Let us be confined to a classless society in which there may not be any appeasement or reservation except the excellence in respect of our performance. Unfortunately the traitors inside the country has provided still worsted shadow of darkness by an eclipsed sun. The people of whole country was suffering from a poignant pain of agony. The universality of which carries in it a great dignity of consolation we have promulgated the undesirable elements in our population coupled with corruption, cruelty, callousness and a complete disregard of public welfare, which is flourishable poison in the air. With confounded speculation of India’s starvation; a terrorist decade of oligarchy and anarchy having appeasement party politics as antithesis to creativity and potential, which has provided an obstacle to our inherited great stilled splendour intelligence with our super entrepreneurial spirit of cultural heritage to naught with intellectual apathy, I have risen to the occasion with profound bleeding at my heart to fight against compulsive gamble bent upon ascending our invaluable legacy providing to be caricature to our noble democracy. We the India’s having 15%of world population and 54% of illiterate citizens of the world are having only 1.5% of world income going down word trend in the list of exporting country from 16th place to 45 place with less them ½ of world to list traffic after 50 years of independence. Despite best ecological conditions and environment and natural resources we are amongst the 10th corrupt nations of the world. Scam of corruption, like Fodder Scam in Bihar, Harshad Mehta Scam, Cobbler Scam of Maharastra, Ayurvedic Scam in U.P., letter of credit Scam in Assam with 700 cases of corruption pending with C.B.I. is our identity. At least 40,000 criminal cases of kidnapping, murder, rape, gangsterism and Mafia Rule spreading the fear psychosis without having the printed proforma of F.I.R. and chargesheet are the glorious instances in one State of Bihar, which is spreading the fire of greed and fears psychosis upon its people. About 240 public sectors enterprises by Union Govt. And 700 public sectors by the State Govt, are providing black hole in National Economy. The money guzzlers are extracting an exorbitant prices for Indian doctrinal socialism. The State of mobocracy in the strife of moral decay with facet of indiscipline, corruption and castism divisiveness with communal hatred, linguistic fanaticism, regional fancy and caste loyalty have provoked the conscience of patriotism. About 120 millions cases pending in the different courts without any probable disposal, within a considerable time period may further provide the loss of country’s valuable potential. 25 north country global phenomenon are having only ¼ of world’s population having 70/ of wealth, 80/ of trade, 90/ of industries and 99/ of finest and most advanced research centre are having their vast potential. They started giving benefit of donation received through begging, but our country’s politicians have set up to regeneration of corruption through these donations. Thus keeping away from realities in allowing to perpetuate the corruption by dishonest opportunity and with calibre are
ruling over the nation. State Govt. was spending Rs. 1,11,96,000/- during Miss. Mayawati chief minister regime on the security of V.I.P. every month against whom the allegation of misappropriation of Rs. 5000 crores were levelled in one public interest Litigation which were published in News Paper. This is all just to provide and boost the political career by our politician. The collusion Govt. of India and Govt. of U.P. having ideologically antagonistic with its alliance is a heterogeneous conglomeration of disparage and disparage interest designed mainly to hedge the power against interest of common citizen. Our thrust with destiny as boosted by our leaders at the time of independence has now been scattered into pieces, sheltered into the extinction of hopes and abrogated and subjugated with the misfortunate scenario of our prophesier democratic set up of the Country. The doctrinaire ethics of democratic values and conceptual phenomenon of so called socialism and secularism being antithesis to social justice and religious sentiment has further deteriorated the very foundation of our country solidarity amongst the citizens. We have formulated utopian empire which is having no existence. This is on account of our character assassination which is resultant into a wild fire meant for destroying the very fabric of our integrity and existence. Can we claim to enjoy our independence. Can we protect our nation from such anarchic situation. The answer convey the only recourse to be adopted i.e. the enforceable fundamental duties and strict discipline required to be implemented. Whether the army personnel deployed for protecting the Nation may not be assigned to fulfil the uphill task of providing a check to internal insurgency. Can still we enforce the necessity of maintenance of the strict discipline required to maintain by the Army personnel and not be our leaders, who have taken over the command like a diplomatic monarch in our country. Let us examine some of the drastic problem which has become the root cause of erosion of the traditional values of our culture. Political parties are gripped to below with the wind and bend with the glass. The collusion Govt. emerged at the state level having the Jumbo size of the ministerial berth being occupied by Sri Markandey Chand then having about 5 criminal cases, Sri Sardar Singh then having about 6 criminal cases, Sri Hari Shankar Tiwari then having about 25 criminal cases, Sri Shyam Sundar Sharma then having about 18 criminal cases, Sri Raja Bhaiya then having about 8 cases and Sri Shiv Pratap Shukla then having detention under N.S.A. were assigned with the responsibility of Cabinet Minister by our Chief Minister Sri Kalyan Singh for remaining in power. The criminal cases are not of minor nature, but the same includes murder, Dacoity with murder, ransom, kidnapping, rape and other physical assault towards the innocent citizens. There are again Sri Rakesh Dhar Tripathi then having 2 criminal cases, Sri Ram Prasad Kamal then having 6 criminal cases, Sri Bhagwan Singh Shakya then having 7 criminal cases, Sri Amar Mani Tripathi then having 18 criminal cases, Sri Prem Prakash Singh then having 15 criminal cases, Sri Vinay Pandey then having 5 cases, Sri Rakesh Tyagi and Sri Ram Shankar then having 6 criminal cases each, who were inducted as Minister for the State by Sri Kalyan Singh in his ministry. Recently the power exercised under Article 161 by Governor for granting pardon from the charge of the murder to Sri Doodh Nath Yadav has been found by the Hon’ble Supreme Court to be given by the Governor of Uttar Pradesh without application of mind and in the wholly arbitrary manner. The handing over the charge of the post of Chief Minister to Sri Jagdambika Pal by the Governor of U.P. Sri Ramesh Bhandari was considered to be a malafide exercise of power. This is the outcome of our parliamentarian democratic set-up of our Country. Sri V.B. Gupta, special Judge of designated Court conducting the trial of politicians involved in HAWALA scam has honourably acquitted all the accused as he could not be prepared to get a remark that he does not know the elementary of basic law of evidence act in which there is no sanction recognising a document written in the code word to be admissible in the evidence. This is pragmatic approach in the matter relating to the crime committed by the guardian of our country. Can anybody may expect from these diplomatic personality dealing with the art of manoeuvring of the process to their own accountability that these parliamentarians including the Hon’ble minister will leave the clue of their identity while committing the crime and to get themselves involved in criminal offence. Our law has become too much unrealistic in its approach and Justice which is dependent upon such a rigmarole of the technicalities to vitiate the very foundation cannot be imparted in the present system. No fruitful result can be achieved by launching the mere prosecution against such politician. We the citizen are paying an exorbitant price of our doctrinaire Angle Saxon Jurisprudence and socialistic, secularists democratic parliamentarian set-up of our country. This is the drastic fate of giving us the freedom on 15th August, 1947 by the British’s to whom we found for better than our politicians. The legal interpretation may be demonstrated by two illustration i.e. (1) Delhi Govt. proposed to provide prosecution for committing an offence of eve teasing to the girls from distance of 10 Feet. The offender started eve teasing them beyond such distance and escaped from punishment. Then the question was posed by a girl. (a common citizen) that what it makes the difference that he committed the offence from distance of 10 feet or beyond it. It was the reply of the prosecution that you cannot expect to permit the girl, (the common citizen) to see beyond the limit of 10 feet. This is a fate of our citizen in the present Judicial set-up of our Country. The second instance is relating to taking inside the boy hostel a girl friend which was objected by the boys who have shown their resentment to the proctor. The proctor for being indulged in to such type of the scandal formulated a policy of getting the door remain open to 45 degree as the bed may be visualised from out side to the boys as they may not be inclined to know what is happening inside the room. In this process all the
boys of the Boys Hostel started enjoying the company of their girl friend behind the 45 degree of the door pan, which remain open. This is how the legislature are enacting the laws from the parliament and legislative assembly. Can the minister are subjected to the prosecuting being the maker of the legislation? Another instance regarding financial irregularities committed by our politicians can be visualise by the very reason that there is the exemption provided to the members of parliament and the legislative assembly from the Tax liability to the extent of Rs. 1,50,000/- for which the ordinary citizen is required to pay an exorbitant price of his hard saving. The list of the defaulters of Telephone bills which come into light when Sri N.P. Vashi Advocate Bombay High Court filed a Public Interest Litigation mentioning the name of alleged defaulter of telephone bill namely Sri Venkat Krishna Reddy M.P. having a defaulter of telephone bills the extent of Rs. 11 Lacs, Sri Ram Sunder Dass M.P. Rs. 11 Lacs. Sri M.M. HashimRs. 13 Lacs, Sri Ram Deo Ram Rs.9 Lacs, Sri M.S. Govil Rs. 11 Lacs. The further po;otoca; spectrum having dues with a sample of names of Sri Raj Babbar, Samajwadi party Rs. 7 Lacs, Srimati Vijay Raja Scindiaa, B.J.P. Rs. 8 Lacs, Sri George Farnandis, Samata party Rs. 4 Lacs Sri Kalpnath Rai, Independent Rs.1.8 Lacs, Sri R. Jagannatham, A.I.D.M.K. Rs. 11 Lacs, Sri A.B.L. Gani Khan haudhari Rs. 42 Lacs, Sri Sunil Dutta Rs. 2 Lacs, Sri Jayanti Patnayak Rs. 3 Lacs, Sri Sathish Sharma Rs.1.5 Lacs, Sri C. M. Mohan Rs. 11 Lacs, SRI Mukul Washik Rs.2 Lacs. Those are the over and above 1 Lacs free calls free calls permitted to the members of Parliament annually. In this manner out of total arrears of revenue regarding the Telephone bills to the extent of Rs. 14,000 Crores in Delhi alone heads, the Country list of defaulters to the extent of Rs.2500 Crores and Rs.245 Crores are the dues outstanding towards our Politicians according to the data published in the ‘OUT LOOK’, Rs. 25 Lacs are the dues on the Congress Party. Let us examine the statement of Sri Ram Jethmalani in another context who has said that “the Judges at the highest level were involved in lesser pursuit of propping unworthy appointment of bench”. Sri Mulayam Singh Yadav has expressed that there should be the adequate representation of the Judges belonging to backward classes. Recently the C.B.I. seized 80 Gold Biscuits weighting 116 grams each the locker of Bhaskaran, a close relative of Shashi Kala. Km. Jayalalitha finds this an act of treachery. In whatever she propose to get a temporary reprieve in the legal quagmire by challenging the Constitution of the Special Court to try corruption cases against her by transferring Justice D. Raju as Chief Justice Himanchal Pradesh through her party colleague union Law Minister Thambidurar. Now the Chief Justice Mr. M.S. Liberan constituted the new bench along with Justice K. Govind Rahjan then he was also proposed to be transferred, but on account of pressure of legal fraternity of the Bar, the device could not be succeeded. Km. Jayalalitha closed inmate Dr. Subramanyam Swami has now been named one of conspirator along with Chandra Swami of committing the assassination of Rajeev Gandhi by providing the aid to the LITTE. The process of Judiciary is being circumvent by Km. Jayalalitha having her involvement in 46 cases of corruption in which three special Judges are hearing the trial and it has already been reached beyond the stage of framing the charges. The ‘The Tansi land deal’ in which Jayalalitha ordered as Chief Minister for the sale of such land below the guide lines prices causing a loss of Rs. 3.13 Crores to the Govt. in favour of partnership firm namely Jaya -Jee publication in which Jayalalitha and Shashi Kala were the partner. The second case of Coal import case of Rs. 117 Crores by electricity Board is again traced to Jayalalitha who over ruled the findings of P.W.D. Secretary Sri V. Sundaram and asked them Tamilnadu electricity Board Chairman Hari Bhaskaran to go ahead. Jayalalitha is already declared guilty by Hon’ble Court in Rs. 56.48 Crores S.P.I.C. dis-investment case. The Court has asked her to pay back Rs.282.9 millions to the Govt. and rest by the S.P.I.C. management. Justice Y. Venkatachalaia observed if the such acts and conduct on the part of Jayalalitha are allowed to continue, it will not only create and indelible stigma on the system of flourishing democracy, but will also bomb bard. The economic structure of our country. Can Km. Jayalalitha is isolated example of committing Bombardment over the entire economic structure of our country or there are other politician except few of exceptions including new alliances which has bring back into the square one with Sri Mulayam Singh Yadav and Sri Lalloo Prasad Yadav having the Ayurvedic Scam and Rs. 920 Crores Foddar Scam to their credit respectively. It was Jayalalitha who raised the demand to induct Dr. S. Swami as Finance Minister of our country. Can we survive under the guardianship of such type of politicians of our Country? The President of India has referred a question to the Chief Justice of India regarding the correctness and the propriety of the power exercised by the Chief Justice of India after the 9 Judges Judgement in Supreme Court Advocate-on-record Association. The file of all such appointment which have been done from year of 1993 on ward has been summoned by Justice Dr. A S. Anand. Now presiding over the bench of 9n Judges of Supreme Court, It is in the context of remark made by Sri Ram Jethamalani, which was published in news papers on 29th July, 1998. Whether we are still in the process of searching of a system till the substratum of revival of the Country appears to be collapsed by out character assassination. There is no revival of the hopes at this Juncture except by the enforcement of strict discipline upon such politicians and our guardian by the true patriotic sons either by giving the command in the hand of Army personnel or to impose an emergency by promulgation of martial law to take the command of our great nation. We are intoxicating the under ground water, the water of river Ganga and Jamuna, which are the source of our survival by flowing the toxic effluent inside such water for boosting our business dealing which is ultimately bound to effect the survival of the entire Country. It has been learnt through the reliable sources that the Chief
of the some of kidnapping of innocent citizens and there after killing them with brutality, if the, demand of ransom may not be fulfilled by the victims of such crime. 50 YEARS OF OLIGARCHY India has now been engulfed by the fire of hatred among the citizens, by the fire of scam and corruption amongst bureaucrats, by the fire of greed, lust and passion through politician and this is a paradise lost to perpetuate them under parliamentarian system. There is no respect for law, no respect for our cultural heritage and traditional values. The dream of independence by our people has been shattered, battered and broken by unholy combinations of greed , lust and power based on falsehood and violence. The nation is at cross roads with devils workshop on one direction and the deep sea of uncertainty towards the other. There is a dark cloud of uncertainty with complete chaos. The ideals of peace and non-violence are good enough to be taught, but the same are not applicable for experience as there is complete deterioration of moral values and nobody is interested in a holding them. The leadership are in the hands of those mediocre which are deliberately degenerating the disintegration of the values and are totally independent upon the false projection of their phobia amongst the masses as nobody could even think of resisting them. The plague of castes amongst the down trodden masses has provided the exclusive monopoly to be ruled by them who demonstrates welfare, but exploit the poverty. There is no check and balance in the game of politics. The spiritual purity of thought is converted into the support from greed and desire by the politicians to their own profit amongst the backward classes. This has provided at tug of war between upper-class and backward class to the larger advantage of our parliamentarian. We have to look within ourselves and find out the answers these problems to build an ideal earthly kingdom to our nation. Nature has the tremendous effect by its own creation to fight against the prevailing disturbances created by the human errors. The tendency to provide an encroachment over the equilibrium, maintained for necessary check and balance as the phenomena which constitutes the involvement of the ecology on one hand and the potential advancement of the technology on the other hand with restrictions. In such situation there is a violent stroke of the natural calamities having drastic effect on the viability of the mankind and survivability the human race. This was the concept of our Hindu philosophy that since the nature is co-existent to the ingredients of life, as such there should be proper respect to the valuable treasure hidden inside the coverage of the nature. The Himalayan prosperity, the rivers flowing through its and thereby providing the essential water required for the irrigation over the land providing the cultivation for the production of food grains were respected as equivalent to god and goddess in the Hindu religion. There was comparison for animals, who are providing their necessary contribution for the preservation of nature and therefore it was only Hindu religion that the cow has been dealt with as mother for every human being. The cruelty to the nature and even over other the creation of the nature and therefore it was only Hindu religion that the cow has been dealt with as mother for every human being the cruelty to the creation has been prohibited in Hindu sanskriti and they used to worship all the trees providing coverage to the birds , animals and also to human beings. There was offering of the milk to the snakes on Nag - Panchami on account of the fact that even the snake was considered to be a friend of human being and the enemy to the rat who used to consume and destroy the harvest cultivated through human efforts. There was in itself check and balance by the nature and the man was considered to be more happier within the limited resources and therefore from the beginning even the princess were sent to the small huts for their physical and spiritual training under the guidance of the sages ,who have already given up all their comforts for the eradication of prevailing maladies in the societies and these sages were given a status above to the ruler of the particular nation. Thus the ultimate effect of the Hindu mythology was to preserve the nature, which is the ultimate goal of every religion. Unfortunately this message could not be communicated to the followers of other religion and as such the drastic effect has been visualised as the green vegetation was converted into the desert, wherever there was expansion of any other religion in contradiction with ideals and cultural heritage of Hindu mythology . India, which was considered to be the golden country ,is now leading towards the same deserted outlook effect as is evident in the middle Asian countries. It is for this reason that the prediction was being in the earlier 19th century that every religion will lost it’s significance, which is not coexistent with nature and rather detrimental for being co-ordinator to boost up the natural resources which are essential for the survival of human race. Hindu religion is now on the verge of its extinction as its foundations are based on nonaggressive trend and worship to other religion. The humanity is the sole criteria , and nothing like fanatic aggressive trend is adopted for its expansion, which is prevalent in this religion rather there is the broader perceptiveness for adoption to the followers of the other religion. The qualification of generosity has become at disqualification for its preservation and existence. Thus it has now become a fundamental duty of every citizen having faith in Hindu religion to fight against the divisive forces who are keeping silent over the effective and prevailing encroachment of Hindu tradition and this is utmost important that if we want to protect violent strokes of nature then the survival of Hindu religion is necessary. The extinction of Hindu race is evident by the bare factor that our monuments and the place of worship have been demolished or converted into different form by the followers of other religion. The
attack is now being made on very foundation, which were maintaining the existence of Hindu religion. The prevailing tendencies of materialistic approach, conceptual deterioration through sacrosanct and contract of marriage , the food habits of non-vegetarian dishes by adopting the cruel method of slaughtering the animals and non spiritual trend of giving up habit of self resistance, are now prevailing in our nation, which is a clear indication that our country, which has been ruled by Mogul invaders and British conqueror by adopting the Roman policy of ‘Divide and Rule’ again in the clutches of foreign aggressiveness and the time is not ready for, when the policy of appeasement to the divisive forces and advantages to the dishonest opportunist will completely ruin down the basic cultural heritage and the traditional values of Hindu heritage from the scene of Indian continent, from where, it was a originally inherited through the grace of Almighty. The extinction of our cultural heritage to the drastic effect is due to sycophancy and hypocrisy which is always inclined to hero worship tendency in Indians, and has given opportunity to power politics to our leaders and from a promulgate religious domination by the few individuals. Mankind is in the habit of suffering through worst catastrophe by the violent stroke of nature. Nature , which preserves, its preserver; but simultaneously ,it also destroys its destroyer. This is the most complicated phenomena of the omnipotent protector but is seldom treated with respect by the human being. There was individual praise instead of appreciating the benevolent qualities and spiritual knowledge and this is followed by the theory of intelligence through birth. The Hindu religion had classified the four sects of Brahmins, Kshatriya, Vaishya & Shudra by their symbolic qualification . Brahmins were resembled by the head of the human beings, while both the arms and chests of the individual were regarded as Kshatriya. The abdomen was represented through Vaishya and those who were indulged into the process of cleanliness of the garbage and other waste products were called Shudra and on account of their limited means of creativity they were never indulged into the passionate pleasure through our senses of productivity and therefore they were regarded at the lower berth. The Indian mentality and the vested interests have given the recognition to these qualifications represented by four sects in the society on the basis of heredity hierarchy and the individual is regarded to be better qualified through his berth instead of his qualifications. Thus it has given a predominating factor for the creation of four Varnas . This was route cause of prevailing maladies, which has given way to the foreign ambitions to take the advantage of such hypocrisy and to rule this nation by the policy of ‘divide and rule’ from the time of Mughal conqueror upto the period of British invaders. The battle of Plassy was further examples of weak characteristic of Indian mentality as India was conquered by an army consisting of 650 British soldiers by defeating an army of 1 lac soldiers of Nawab Shahjadullah by Clive Lloyd . This has provided an opportunity to the Congress leaders from a very beginning to highlight the status of Shri Mohan Das Karamchandra Gandhi as that of a Mahatma. After the first world war when there was a usurpation of power by some of the dedicated leaders like Lala Lajpat Roy, Vipin Chandra Pal, and Bal Ganga Dhar Tilak. The efforts of Bhaghat Singh, Chandrashekhar Azad, Sarva Shri Pt Ram Prasad Bismal, Ashfaq Ullah Khan, Roshan Singh and Rajendra Nath were also undermined before the status of Mahatma Gandhi by then Congress contemporary in the different period of British Empire. Then the pro Mahatma friction inside the Congress have called them as reactionary to the prevailing system and they were to discourage for their aggressive nature. The uprising of our leaders against British domination was assailed from time to time on many grounds as no one could come forward as that of a leader after independence and the power may be enjoyed by few individuals, who were opportunists and remain loyal to Mahatma in his policy of non-invasion as Mahatma Gandhi was always inclined to evade from the British diplomacy. The independence of our nation was prolong to an indefinite period till the rising of Hitler and demolition various stricture on which the British domination was coexistent to the extent that his sun was never dawning in the west, as on the other side of its expansion of its jurisdiction, it was simultaneously rising. After the Second World War the British domination has not only been extinguished from the soil of this nation, but from other 47 nation at the contemporary time period. Thus the contribution of Mahatma Gandhi was really negligible in comparison to the efforts of Netaji Subhash Chandra Bose ,who fought the battle through his army against British people. The status of Mahatma Gandhi has become a protective umbrella providing shield to the ambitions of opportunists leaders. Those who were associated with him with the sole objective to gain the power after independence . Mr.Moti Lal Nehru being conversant with the inclination of Mr Jawahar Lal Nehru towards the leadership has purposely associated him with Mahatma Gandhi as he was very conversant that one day or other these Britishers have ultimately to depart from the soil of this country and thereafter there are chances of Mr Jawahar Lal Nehru gaining the power if he remained associated with Mahatma Gandhi as his successor disciple. The association of Mr Nehru with Tej Bahadur Sapru as an advocate was neither successful nor it would have remained in existence for a longer period. Thus there was no other alternative except to allow of Mr Nehru to join the politics and the associated with Mahatma Gandhi. This ambition of Mr Nehru to remain in power has ultimately led to the process of partition of India to a very larger extent. Mr Subash Chandra Bose was elected as president Congress by defeating Mr Pattavi Sita Ramaya a nominated candidate of Mahatma Gandhi. Mr Nehru and his other associates become
very perturbed by the victory of Netaji. Thus the conspiracy was fetched to remove him from power. It was declared that the victory of Netaji was personal defeat of Mahatma Gandhi. The lobby associated with Mr Nehru lead by Mr Govind Ballabh Pant resolved on 3rd March 1939 that Netaji will not be empowered to choose his nominated member, but those having solidarity in Mahatma Gandhi will be the nominated member of Congress working committee, there was such humiliation to Netaji that he was to submit his resignation from president’s post in order to protect his dignity and self respect and there after he constituted the forward block. There was general feeling among the Muslim fundamentalists including Mr Zinnah that in this manner nobody will allow be allowed to share in power and it has lead to the adoption of Pakistan resolution in Lahore in 1940. Thus the ousting of Netaji Subhas Chandra Bose as the president of Congress by the diplomacy of Jawahar Lal Nehru and is other associates has ultimately led to the creation of Pakistan to the greater extent. This was the fraud with the people. Muslim league supremo Mohd.Ali Zinnah ring from tuberculosis and he could have survived only for six months on the eve of partition of our country in 1947. The celebrated writers namely the Larry Collins and Dominique Lappire have found Mr Zinnah as unyielding obstacle to Lord Mountbatten and the basic cause behind his obstinacy was the excessive greed of congress leaders to remain in power, if there was no partition India may be the most innovative national philosophy to have emerged in the post independence period. India was having attitude if we were equipped with the problem and there was unique solution, if the kids of the present generation were sharing global dream of Indian continent, who ever may be the responsible for the partition of the country, but certainly these ambitions have played the role of a traitor inside of our country and the present generation may not forgive them. Acharya J. B Kriplani was elected President of congress working committee. great planning was elected president of Congress working committee, but Mr Nehru condemned him by saying it is better to talk with a devil than to talk to Kirplani. This was the characteristic of individualistic approach which has ousted many patriots like Mr Ballabh Bhai Patel, Mr Purshottam Das Tandon, Dr Ram Manohar Lohia ,and Babu Rajendra Prasad their active contribution for the prosperity of our nation. It is well-known if Mr Patel would have not taken the drastic decision of unification of 650 princely states and the state of Jammu and Kashmir as the integral part of our nation for which Mr Nehru provided obstacles at every stage, we would have not living in our nation and rather slaughtered like animals by the aggressive attitude of our counter part of nation called Pakistan. Mr Ram Manohar Lohia once regarded “Rising star” by Mr Nehru was arrested 16 times during the Nehru’s 16 years this has started from the movement when Mr Lohia provided resistance and talk against .Mr Nehru policy of Panchsheel and condemned that at the time acquisition of Tibet by China this Panchsheel was shattered and scattered into pieces after the Chinese aggression in 1962,when India could only save his territories from further acquisition by the timely intervention of Soviet Union. The parliamentarian system adopted by our ambitious leaders to gain powers through to any means fair or foul, has dragged our nation towards confusion coercion chaos crime and corruption. We now are proudful that we are most corrupt nation of the world living below poverty line with the maximum criminal providing shelter and production through our corrupt politician. This was the foundation which we have witnessed during first 16 years of independence under Prime Ministership of Mr Jawaharlal Nehru. Mr Lal Bahadur Shastri has protected the large interest of our nation only within a period of two years when the people of our country were dying of starvation, running in bankruptcy, insecurity and control through foreign ambitions. The green revolution for self autonomy of our people has not only provided them sufficient bulk of food, but also provided the export of food articles during Shastriji period. The successful in recapitulation over the territory of Pakistani aggressor during the year 1965 war were the that tremendous achievement of this real patriot, who maintained idealistic approach throughout his regime but shown his determination to fight against divisive force acting detrimental to the interests of nation and never allowed to perpetuate corruption in any manner, as such it is well established that here are the hopes of getting the rectification of the prevailing errors committed by the politicians and the country has got the vital resources to maintain its reputation among the other countries of the world. After the independence that was perspective of but Congress became one of the rider on account of its hold over leadership and this has resulted into disintegration of the various socialist formation into the spilt. The economic backwardness provided miracle success to co-ordinate such equations to the best advantage of the ruling Congress. The element of motivation for the success of Congress was based on Nehru -Gandhi dynasty which helped Jawaharlal Nehru to reflect his personality by inducing himself as the supreme leader. In pursuit of his office of Prime Minister by Mr Jawaharlal Nehru, the interest of the nation was crucified to the larger extent in view of acceptance of the partition of India and creation of Pakistan with clashing of vested interest to rule the nation under the guise of the danger through external aggression. Mr Ram Manohar Lohia has adopted a viable political strategy on ideological pretence of uncompromising anti-congressism this fact was witnessed till the aggression of the China. This has provided a great setback in the advancement of socialistic strategy. After the death of Mr Jawahar Lal Nehru who based his policy by centralising the attention towards his foreign policy of diplomacy and certainly to build up the nation to certain extent but he meticulously failed to built up the defence against the external threat as a result of which India lost the he major portion of Kashmir and vast land in Chinese aggression. According to some
spokesman of the relevant period the policy of Mr Jawaharlal Nehru was widely based on his diplomacy and appeasement and tactics through concession to the minorities by introducing the reservation policy of scheduled caste and scheduled tribes in the matter of employment for the limited period. The introduction of Hindu reforms against the prevailing abuse of power detrimental to the interest of woman through polygamy and contractual marriage and divorce amongst Muslims for which there was head on collision between Mr Rajendra Babu the President and Mr J. L. Nehru, but ultimately Mr Nehru succeeded in getting Hindu reform Bill introduced and past which was violative of directive principles of state policy of unified civil law. The dream of adopting the same law applicable irrespective of any creed, caste and religion in order to strengthen the integrity of our nation could not be fulfilled even after the dawn of 50 years of independence. PARTITION OF INDIA – A Pure Political Game “A TIME LIKE OUR DEMANDS STRONG MIND, GREAT HEART, TRUE FAITH AND READY HANDS ; MEN, WHOM THE LUST OF OFFICE DOES NOT KILL; MEN , WHOM THE SPOILS OF THE OFFICE CAN NOT BUY; MEN, WHO POSSESS OPINION AND WILL ; MEN, WHO HAVE HONOUR ; MEN WHO WILL NOT LIE ; MEN, WHO CAN STAND BEFORE THE TEMOGOGUE AND DEMN HIS TREACHEROUS, FLATTERIES WITHOUT WINKING; TALL MEN, SUN CROWNED, WHO LIVE ABOVE THE FOG IN PUBLIC DUTY AND IN PRIVATE THINKING “. “He who having sworn by solemn oath at his coronation to protect the people from wrongful operation, fail to do so should be slain as a mad dog---Mahabharat Leave this chanting and singing and telling of beads whom dost thou worship in this lonely dark corner of a temple with all doors shut? He is there where the tiller is tilling the hard ground and where the path maker is breaking stones. Put off the Holy mantle and even like him come down on the dusty soil. The distress of Mahatma Gandhi on the wake of partition of Indian continent may still be heard from a distant voice calling to the people to unite and the unity in diversities may provide India’s survival as a nation before partition which depends on a wider vision of unity based on inter-dependence based on the sub continents and secularism and social justice. Let us try to hear again how distressed Mahatma ji was at the turn of events on the wake of partition: “ So far it was my desire to live upto the age of one hundred and twenty five years, but now I have no such desire. The objective before me was not just to attain freedom, but also to remove all the social ills in the society which had pestered during the 200 years of the British Rule. They have practically divested us of our traditions of tolerance and harmony and instead fomented hatred and discord through their communal policies . I had thought that we could change the entire system and the people of this country and would live together as brothers in love, harmony and peace, so that coming generations may be blessed with all of that , which we have been deprived of. Therefore in addition to the freedom of my country , the primary objective of my life was maintenance of cordial relations between Hindus and Muslims since I could not attain my objective , this freedom has become tainted .Today when I see Hindus and Muslims separated with more or less permanent gulf , I feel politically and spiritually defeated . I have no desire to live any longer …….when I cannot remove this mutual hatred and ill will between Hindus and Muslims , and cannot create feeling of love peace and harmony in name of God and religion , you tell whether there is any point in my living any more ? I would prefer death to this kind of life.” Partition of India was purely a political game fought with a mark of religious fundamentalism the speech of Quaid Azam Zinnah on 11-08-1947 who vehemently advocated the two nation theory was enunciated the Government of Pakistan policy has also realised the folly committed in accepting partition on communal lines in these words: “If you change your past and work together in spirit that every one of you , no matter what community he belongs to, no matter what his colour , caste or creed , is first , second and last , a citizen of this state with equal rights, privileges and obligation there will be no end to the progress you will make. I cannot emphasise it too much ; we should begin to work in that spirit , and in course of time , all these angularities , of the majority and minority communities, the Hindu community and the Muslim community , because even as regards Muslims, you have Pathans, Punjabis, Shias , Sunnis, and so on and among the Hindus you have Brahmins , Vaishnavas, Khatris also Bengalis Madrasi’s and so on , will vanish. You may go to your temples, Mosques or any religion or caste or creed, that has nothing to do with the business of the state …….We are starting with the fundamental principle that we all citizens and equal citizens of one State….” The general expectations that by accepting partition of India , communal madness would subside and peace would prevail and both countries would live like good neighbours and friends, were belied immediately on the wake of partition , in human tale of woe and misery followed communal hatred ., madness, barbarism and its free hands both in Pakistan and India according to an estimate about 6 lacs people lost their lives and 14 lacs had lost their homes. The religious fanatism spread over the Indian continent in bitterness and repeated the story of shame and barbarity. Large scale exodus of
refugees and their rehabilitation , subsequent three wars fought with severity loosing the life of many patriot living in both the sub continent, river water dispute and still continuing to create fresh problems of terrorism and sabotage with hostility and mutual suspicion in the inhabitants living between the two states, large scale violence , regional problem are the direct out come and the after effect the partition of India Time is a three -fold -present; the present as we experience it, the past as a present memory and future as a present expectations. The expectations cannot be the same as anticipation . A wish a desire or a hope however earnest and a sincere a wish, a desire or a hope may be and one may confidently look to them to be fulfilled the same cannot be an asserted expectation . A pious hope leading to a moral obligation can be infect only if it is founded on the sanction of reason and to fulfil such expectation should be justifiably protected through analysis as rectification to fructify into a right in the conventional sense. Thus a protection of such expectation may be required through overriding public opinion and public interest which can provide substantive justification to germinate the idea of unification of the old “House” of Indian continent by demolition of those walls, consisting of armed forces on whose maintenance 60% of the national income used to be expended and thereby perpetuation of the hatred coupled with community frenzy between the people living in both the subcontinent, has now the need of the time. Let us examine the factors responsible for the partition of India , certain extra-ordinary emotional circumstances in the event of quick succession rushed through a very disparate speed which caught in the whirl wind having a sort of commutative effect on our national life. The operation of the system of working of two political parties that is Indian congress and Muslim league and lack of collective wisdom in the leaders of both the political party had ultimately resulted into the partition of Indian continent . Gandihiji observed after the partition “when the congress leaders had virtually buried him a life , Gandhiji gave the said spirited reply” I cling to the hope that I am not yet buried alive. The hope rests on the belief that massed have not lost faith in my ideals . When it is proved that they have, they will be lost and I can then be said to have been buried alive. But as long as my faith burns bright, as I hope it will even if stands alone , I shall alive in the grave, and what is more , speaking from it. The life is worthless which ignores or disregards moral values. With the demand for local self government the tempo of national movement gain movement gain momentum , thus the government of India act 1909 Known as Morely Minto Act was passed by the parliament of England. Then came the first world war 1914 in which the people of India forgetting all differences , co-operated in anticipation of self government and Home rule after the war . This was done on the basis of pronouncement in parliament on 20 th August 1917 regarding assurance as per policy of British government for granting responsible government by providing for the increasing association of Indians cocuy branch of Indian administration and for gradual development of self governing institution with a vision to progressive realisation of responsible government in India as an integral part of British empire and there after quit of India. Act 1919 was passed by the parliament. The governor general issue ordinance which were to have the free of law for six months. The Indian people had expected much more and men co-operation , civil discipline disobedience movements and terrorist activities started . Inspired communal riots insisted the necessity to send statutory commission popularity knew as Simon commission for England in 1927 to study the problems which was boycotted by Indian national congress. The commission submitted its report vehemently condemning diarchy which was discussed at round Table conference led to the government of India Act !935. Sir Stafford Cripps made negations with the acceptance that the elected body of Indians should frame the Indian constitution and for the purpose cabinet mission was send to assist the viceroy in setting up the constitution and to mediate between the congress and Muslim league. The plan was made public on May 16, 1946. India was to remain one state with the central government power to empire to Foreign affairs, communication and defence. The provinces would be grenped geographically into three regions, are predominantly Hindu other Muslim and third nearly equal population of the communities. Both Congress and Muslim League accepted the cabinet mission plan . Government of India Act 1935 has provided separate electorate and communal representation in the central and provincial legislature. To strengthen hands of all India Muslim league that critical stage in 1945 , British Government had decided to hold general election both for central legislative assembly and provincial legislature under the government of India Act 1935. In that high pitch of communal frenzy, the result was foregone conclusion. Elections to the central legislative assembly was held first. The results of election to the to the central legislative assembly were known towards the end of December 1945. The congress won overwhelming success in the general constituencies while Muslim league won all the Muslim seats. The nationalist Muslims mostly forfeited their deposits in many constituencies. Congress secured 91.3%of the votes cast in Non Mohammedan constituencies and the Muslim league got 86.6 % of the total votes cast in Mohammedan constituencies. The Final Figures were Congress …………….57 Muslim League …………30 independents ……………5 Alkali Sikhs ……………2 European ……………8 Total elected seats……….102
Elections to the provincial legislature followed shortly. The results in the different provinces may be summed to as follows : i) Sindh The Muslim league won 27 seats and one independent member joined it after the election. The congress won 21 seats but was joined by seven members belonging to two other group And by one independent labour members . Although the congress coalition commanded a majority of one over the Muslim league. The leader of the league was asked to form a ministry by the Governor. ii) N.W.F.P : The Congress won 30 seats (Including 19 Muslim seats ) while the Muslim league got only 16 Dr.Khan Saheb formed congress ministry. iii) Punjab out of 175 seats the result of the election were as follows : 1)Muslim league 75 2)Congress 51 3)Akali Dal 22 4)Unionist 20 5)Independents 7 There were some changes after the elections ,Congress and Akali Sikhs formed a working alliance and invited Muslim league to join it. But the negotiation failed . Eventually a coalition was formed between Congress, Alkali Sikhs and unionist , under Mr. Khizar Hyat Khan who formed the ministry . iv) Bengal :Out of 250 seats , the Muslim league won only 113 seats and the congress 87 seats. Mr. H. S. Shuhrawardy the leader of the Muslim league negotiated with the Congress for a coalition , but being unsuccessful, formed a league ministry with the support of independent members . v) In other Provinces of Bombay , Madras, U.P, Bihar and C.P the Muslim league captured 54,34 and 13 seats , out of the total Muslim seats numbering 66,40 and 14 respectively . vi) The result of the election in the provinces confirmed the deductions made on the basis of the election to the central legislative assembly . They proved that the congress and the Muslim league were the only two parties that counted in the country ,representing respectively the Hindus and the Muslim communities, except in the N.W.F.P and Singh . But it is noticeable that the Muslim league could not get absolute majority anywhere , even in the Muslim Majority Provinces. It is significant to note that apart from all other factors it is the diplomacy of the then British Rulers that was mainly responsible for partition of India. While leaving India their main attempt was to hustle everything with undue haste and to balkanise India into several political units. Ultimately India was partitioned into two states and leaving 500 and odd Indian states as independent units giving option to them either to join India or Pakistan as per their discretion . It is obvious that the British rulers wanted to keep always , a vast country like India, internally weak and divided ,as part of their global strategy and international power game . On May 15 just before the despatch of the Cabinet delegation to India , Mr Attlee , the British Prime Minister, used these words --My colleagues are going to India with the intention of using their utmost endeavour to help her attain her freedom as speedily and fully as possible .What form of government is to replace the present regime is for India to forthwith the machinery fore making that decision But if she does so elect it must be her own free will . The British commonwealth and empire is not bound together by chains of external compulsion. It is a free association of free peoples. If on the other she elects for independence, in our view she has a right to do so It will be for us to help to make the transition as smooth and easy as possible . Charged in these historic words we - the cabinet ministers and the Viceroy have done our utmost to assist the two main political parties to reach agreement upon the fundamental issue of the unity or division of India After the prolonged discussion in New Delhi we succeeded in bringing the Muslim league together in conference at Simla . The size of the non Muslim minorities in a Pakistan comprising the whole of six provinces enumerated above would be very considerable as the following figures show – North western Area----Muslim Non Muslims Punjab 16,217, 242 12,201, 577 North west frontier Provinces 2,788, 797 249,270 Sind 3,208, 325 1,326,683 British Baluchistan 438, 930 62,701 22653294 13840231 62.07% 37.93 % North Eastern Area--Bengal Assam
33005434 3442479 36447913
27301 091 6762254 34063345
( Based on Census 1941)
These figures show that the setting up of a separate Sovereign state of Pakistan on the lines claimed by the Muslim League would not solve the communal minority problem ; nor can we see any justification for including within a sovereign Pakistan those districts of Punjab and Assam and Bengal in which the population is predominantly non Muslim. Every argument that can be used in favour of Pakistan can equally in our view be used in favour of exclusion of Non- Muslims area in Pakistan. This point particularly affect the position of Sikhs. Six major proposals Common case recommended that the constitution should take the following basic form 1)There should be a union of India , embracing both British India and the states which should deal with the following subjects :-- Foreign Affairs ; defence and communication ; and should have the powers necessary to raise the finances required for the above subjects 2) The Union should have an executive and a legislature constituted from British Indian and states representatives Any question raising a major communal issue in the legislature should require for its decision a majority of the representatives present and voting of each of the two major communities as well as a majority of all the members present and voting. 3) All subjects other than the union subjects and all residuary powers should vest in the provinces. 4) The states will retain all subjects and the powers other than those ceded to the union. 5) Provinces should be free to form Groups with executives and legislatures , and each group could determine the provincial subjects to be taken in common 6) The constitutions of the union and of the groups contains a provision whereby any province could by a majority , vote of its legislative assembly call for a reconsideration of the terms of the constitution after an initial period of 10 years and at 10 yearly intervals thereafter. After careful consideration conclusion was that the fairest and most practicable plan would be a) To allot to each province a total number of seats proportional to its population, roughly in the ratio of one to a million , as the nearest substitute for representation by the adult suffrage. b) To divide this provincial allocation of seats between the main communities in each province in proportion to their population . c) To provide that the representative are allotted to each community in a province shall be elected by the members of that community in its legislative assembly. Table of representation Section A Province General Madras 45 Bombay 19 United Provinces 47 Bihar 31 Central Provinces 16 Orrisa 9 Total 167 Section B Province Punjab N.W.F.P Sind General 8 0 1 Total 9 Section C General 27 7 34 .. .. Muslim 16 3 3 22 Sikh 4 0 0 4 Muslim 33 3 36 Total 28 3 4 35 Total 60 10 70 292 93 385 Muslim 4 2 8 5 1 0 20 Total 49 21 55 36 17 9 187
Province Bengal Assam Total Total for British India Maximum for Indian states
Viceroy’s broadcast (May 17 , 1946) I wonder whether you realise that this is the greatest and most momentous experiment in government in the whole history of the world –a new constitution to control the destiny of 400,000,000 people . A grave responsibility indeed on all of us who are privileged to assist in making it. Lastly I must emphasise the seriousness of the choice before you . It is the choice between peaceful construction or the disorder of civil strife , between ordered progress or confusion . I am sure you will not hesitate in your choice for co-operation .
May I end with some words which were quoted by one great man to the other at a crisis of the late war , and may well be applied to India at this crisis ? Thou too , sail on , O ship of the state , Sail on , O Union , strong and great : Humanity with all its fears With all the hopes of future years, Is hanging breathless on thy fate.’ Letter from the president of the Muslim league to Lord Pethick -Lawrence , dated May 8 , 1946 I have now receive the letter of your private Secretary , dated May 8 ,1946 and the enclosed document to which you had referred in your letter of May 8, 1946 . It is proposed by you that this paper be discussed at the next meeting of the conference to be held on Thursday afternoon at 3 p.m if this is agreeable to the Muslim league delegation . Your proposal embodied in your letter of April 27, 1946 , runs as follows : “A union government dealing with the following subject -----Foreign Affairs ,Defence and Communications . There will be two groups of the provinces , the one of the predominantly Hindu provinces and the other of the predominantly Muslim provinces , dealing with all other subjects which the provinces in the respective groups desire to be dealt with in common The provincial government will deal with all other subjects and will have all residuary sovereign rights” Mr Jinnah speaks on the Mission’s proposal (May 22 , 1946) I have now before me the statement of the British cabinet delegation and the viceroy dated May 15 .Before I deal with it I should like to give a background of the discussion that took place at Simla from May 5 onwards till the conference were declared concluded and its breakdown announced in the official communiqué dated May 12. We met in conference on May 5 to consider the formula of embodied in letter of the secretary of state of India dated April 27 inviting the league representatives The formula was as follows : A Union government dealing with the following subjects :foreign affairs, defence and communications. There will be two groups of provinces the one of the predominantly Hindu provinces and the other of the predominantly Muslim provinces dealing with the all other subjects which the provinces in the respective group desire to be dealt with in common. The provincial governments will deal with all other subjects and will have all the residuary sovereign rights. MUSLIM LEAGUE DEMANDS Muslim league position was that : Firstly the zones comprising Bengal and Assam in the north -east and the Punjab , the N.W.F.P, Sind and Baluchistan in the north west of India constituted Pakistan zones and should be constituted as a sovereign , independent State and that an unequivocal undertaking be given to implement the establishment of Pakistan without delay . Secondly, that separate constitution making bodies be set-up by the people of Pakistan and Hindustan for the purpose of framing their respective constitution. Thirdly , that the minorities in Pakistan and Hindustan be provided with safeguards on the lines of the Lahore resolution. Fourthly, that the acceptance of the league demand and its implementation without delay were a sine qua non for league co-operation and participation in the formation of an interim Government at the centre. Fifthly, it gave a warning to the British Government against any attempt to impose a federal constitution on a united India basis or forcing any interim arrangement at the centre contrary to the league demand and that Muslim India would resist if any attempt to impose it were made. Besides such an attempt would be the grossest breach of faith of the declaration of his Majesty’s Government made in August 1940 with the approval of the British Parliament and subsequent pronouncement by the Secretary of State for India and other responsible British statesmen from time to time reaffirming the August declaration.
Hindu Mahasabha’s ‘resolution’ The All India committee of Hindu Mahasabha notes that the fundamental principles of the Hindu Mahasabha, namely the unity and integrity of India , has been accepted only in theory by the cabinet Mission by their proposal for the formation of one Indian union and by their rejection of Pakistan. But the committee regrets that in practise this has been whittled down and the apprehension of the communal domination of the Muslims has been unduly exaggerated , although the apprehension of the minority in the Muslim majority area has been totally ignored. The Hindus , as such have no existence in the political scheme of the mission and have been lumped together with others under the misleading category of “General”
The Mahasabha has opposed Pakistan or the partition of India into two entire sovereign states not on sectional or communal grounds but in the interest of India as a whole . The Central Government as envisaged in the cabinet Mission proposal will be too weak. To pull her full weight in the international world. The committee reiterates its demands for the formation of a strong central Government to check and control the disruptive forces in the Indian body politic and to pool all national resources for effective planning in order to prevent the economic exploitation of the poor masses. World security is linked up with the building up and maintenance of a really free and prosperous India . That object can never be achieved with a truncated centre and a hybrid constitution based on artificial grouping of the provinces with residuary powers vested in them. Those provinces will then be in a position to put up tariff walls and to clog the progress of India in the social and economic fields. In order to make effective any large scale economic and administrative and to prevent the disintegration of India after the withdrawal of the British power of India , it is essential that the centre should be strong enough and should be clothed with constitutional authority to deal with customs tariffs currency , banking , and other subjects should have authority to intervene in cases of emergency minority oppression or inter-provincial deadlock and to co-ordinate All India resources to fight famine and pestilence . The Mahasabha cannot accept any constitution which negatives in actual practise , the salutary principle of India’s integrity. It stands for an indissoluble union of provinces which may be reconstituted on cultural and linguistic basis. The dominant idea lies behind the cabinet mission is to appease the Muslim league to the detriment of all other minorities . The Mahasabha is opposed to a complicated machinery which seeks too set-up a three Decker constitution and which will place the Hindus of Punjab ,Bengal , Assam , Sind and the N.W.F.Province as well as the entire Sikh community at the mercy of Pakistanis and which will not provide any acceptable solution of the communal of the communal problem. The injustice done to the Hindus and Sikhs in Punjab, Bengal and Assam is further intensified by reason of the fact that these are vast areas in these provinces which are predominantly non Muslim . The committee demands that the artificial systems of grouping and the sub federation should be withdrawn . The constitution should be framed on the recognition of the principle of the sovereignty of the people. There should be one constituent assembly which will frame the constitution of the provinces . We are opposed to introduction of the principle of regionalism based on communalism and to the grant of residuary powers to the provinces. The Mahasabha is also opposed to the pernicious principle of the parity in any shape or form . The committee notes that one of the principles for which the hindu Mahasabha stood , viz. representation on the basis of population strength has been recognised by the cabinet mission in the constitution of the constituent assembly which is based on principle of one representative for one million people But this very principle has been vitiated in allowing the European members of Bengal and Assam Legislative assemblies to vote for or stand as candidates for the constituent Assembly . Thus of Hindu members of these assemblies will be deprived of their own choice in proportion to their population. The committee demands that the sovereign status of the constitution assembly should be recognised so that Indians may frame a constitution for themselves. The minority must not be allowed to veto the progress of the majority or to retard the building up of a healthy , self sufficient and prosperous India. The Committee records its emphatic opinion that the scheme is inspired by the pro Muslim league tendencies of the British government, strengthened by the policy of appeasement pursued by the congress. The scheme is unacceptable to the Mahasabha unless it is modified in respect of the fundamental defects enumerated in this resolution . The committee calls upon the Hindu status to realise the danger inherent in these proposals and urges upon them to mobilise the public opinion effectively so that these proposals are not implemented , unless suitably modified in order to meet the aspiration of a free and united Hindustan. The committee cannot accept the basis on which the interim government has been constituted by the viceroy . The principle of parity between caste Hindus and Muslims which formed part of the Wavell plan in June 1945 has been received and thrust upon the country . This was condemned by the Mahasabha as antidemocratic and anti Hindu . Besides it runs counter to the principle of representation on population strength applied by the cabinet mission itself to the composition of the constituent assembly . Resolution of the congress working committee (April 2, 1942) The working committee have given their full and earnest consideration to the proposals made by the British War cabinet in regard to India and the elucidation thereof by Sir Stafford Cripps . These proposals , which have been made at very last hour because of compulsion of events , have to be considered not only in relation to India’s demand for independence, but more especially in the present grave war crisis with a view to meeting effectively the perils and dangers that confronts India and envelops the world. The congress has repeatedly stated , ever since the commencement of the war in September 1939, that the people of India would line themselves up with the progressive forces of the world and
assume full responsibility to face the new problems and the shoulder the new burdens that had arisen , and it asked for necessary conditions to enable them to do so to be created . An essential condition was the freedom of India , for only the realisation of the present freedom could light the flame which would illumine millions of hearts and move them to action. At the last meeting of the all India congress committee , after the commencement of the war in the pacific , it was stated that “only a free and independent India can be in a position to under take defence of the country on a national basis and be of help in the furtherance of the larger causes that are emerging from the storm of war” The British War cabinet ‘s new proposals relate principally to the future upon the cessation of the hostilities . The committee , while recognising that self determination for the people of India is accepted in the principle in that uncertain future , regret that this is fettered and circumscribed and certain provisions have been introduced which gravely imperil the development of a free and united nation and the establishment of a democratic state. Even the constitution body is so constituted that the people’s right to self determination is viated by the introduction of non-representative elements . The people of India have a whole clearly demanded full independence and the congress has repeatedly declared that no other status except that of independence for the whole of India could be agreed to or could meet the essential requirement of the present situation. The committee recognise that future independence may be implicit in the proposals, but the accompanying provisions and restrictions are such that real freedom may well become an illusion. The complete ignoring of the ninety millions of the Indian states and their treatment as commodities at the disposal of their rulers is a negation of both democracy and self determination . While the representation of an India state in the constitution - making body is fixed on a population basis , the people of the state have no voice in choosing those representative, nor are they to be consulted at any stage , while decisions vitally affecting them are being taken . Such states may in many ways become barriers to the growth of Indian freedom , enclaves where foreign authority still prevails and where the possibility of maintaining foreign armed forces has been stated to be a likely contingency, and a perpetual menace to the freedom of people of the states as well as of the rest of India .The acceptance beforehand of the novel principle of non accession for a Province is also a severe blow to the conception of Indian unity and an apple of discord likely to generate growing trouble in the Provinces , and which may well lead to further difficulties in the way of Indian states merging themselves in Indian Union. The congress has been wedded to Indian freedom and unity and any break in that unity especially in the modern world when people’s minds inevitably think in terms of ever larger federation , would be injurious to all concerned and exceedingly painful to contemplate .Nevertheless the committee cannot think in terms of compelling the people in any territorial unit to remain in an Indian unit against there declared and established will. While recognising this principle , the committee feel that every effort should be made to create condition which would help the different unit in developing a common and co-operative national life . The acceptance of the principle inevitably involves that no charges should be made which result in fresh problems being created and compulsion being exercised on other substantial groups within that area . Each territorial unit should have the fullest possible autonomy within the union , consistently with a strong national state. The proposal now made on the part of British war cabinet encourages and will lead to attempts at the very inception of a union and thus create friction just when the utmost co-operation and goodwill are most needed . Any proposal concerning the future of India must demand attention and scrutiny , but in today’s grave crisis , it is the present that counts , and even proposals for the future are important in so far as they affect the present .It has been made clear that the Defence of India will in any event remain under British control. To take away defence from the sphere of this stage is to reduce that responsibility to a farce and a nullity , and to make it perfectly clear that India is not going to be free in any way and her government is not going to function as a free independent government during the pendency of the war . The committee would repeat that an essential and fundamental prerequisite for the assumption of the responsibility by the Indian people in the present is their realisation as a fact that they are free and are in charge of maintaining and defending freedom. The committee , therefore , are unable to accept the proposals put forward on behalf of the British War cabinet. The Working committee of the All-India Muslim League have given their most earnest and careful consideration to the announcement by Mr. Churchill , the British Prime Minister , in the House of Commons on March 11, 1942 and the draft declaration of the War cabinet of his majesty Government regarding the future of India and also the interim proposals , during the critical period which now faces India , for the immediate participation of the leader of the principle sections of the Indian people in the councils of their country. The committee appreciated the proposal of his majesty’s Government regarding the draft declaration of August 8 1940 , which had promised to the Musalmans for the framing of the constitution to be enforced without the approval and consent of Muslim India. The possibility of creation of Pakistan was recognised by implication of two or more independent establishment of unions in India which was not open to any alternative proposal and therefore was not open to any modification such proposal was unacceptable to them for reasons given below ;-
1)The Musalmans after 25 years of genuine efforts for the reconciliation of the two major communities and the bitter experience of the failure of such efforts, are convinced that it is neither just nor possible , in the interest of peace and happiness of the two peoples ,to compel them to constitute one Indian union , composed of two principal nations -Hindus and Muslims -which appears to be the main objects of His Majesty’s Government , as adumbrated in the preamble of the Draft Declaration , the creation of more than one union being relegated only to the realm of remote possibility and is purely illusory 2)The primary object in the Draft Declaration has been proposed by a constitution making body with creating one Indian union. The Muslim league decided finally that it will be unfair to Musalmans to compel them to enter with such a constitution making body whose main object is the creation of a new Indian Union which according to them may exacerbate bitterness and animosity among the various elements in the country . 3)The right of non -accession to the union, as contemplated in the Draft- Declaration has been conceded ; presumably , in response to the insistent demands by the Musalmans for the partition of India .The Musalmans were not satisfied on a vital question affecting there future destiny and demand which according to them was a process of evading the real issues to court disaster . The secretary of Sir Stafford Cripps on April 2 addressed to the president of al India Muslim League ;-“A province should reach the decision whether or not to stand out of the union by a vote in the legislative assembly on a resolution to stand in . If the majority for accession to the union is less than 60%, the majority will have the right to demand a plebiscite of the adult population”. 4)With regard to Indian states , it is considered opinion of the committee that it is a matter for them to decide whether to join or not to join or form a union 5)With regard to the negotiations made between crown and the Indian union or unions , since it was not indicated as to what would happen in case of disagreement on the terms between the contradicting parties, there is a difference of opinion in negotiating a revision of treaty arrangements 6)The committee was unable to express their opinion with regard to their interim arrangement as there is no definite proposal except the bare statement of His Majesty Government and secondly is on account of the reason that Sir Stafford Cripps has made it clear that his scheme would either4 be accepted as a whole or is rejected as a whole but it is not possible to retain only the part relating to immediate arrangement at the centre and discard the rest of the Draft scheme . In conclusion the committee wish to point out that unless the principle of Pakistan scheme, as embodied in the Lahore resolution dated March 1940 ,the same is now the creed of the Muslim League, namely, “The establishment of completely independent states formed by demarcating geographically contiguous unit into regions which shall be so constituted which such territorial adjustments on numerically in north western and eastern zones of India in which Musalmans are in the majority shall be the homeland of Muslim as constituent unit , autonomous and sovereign” : “That adequate effective and mandatory safeguards shall be specifically provided in the constitution for minorities in the above mention units for the protection of their religious , cultural , economic , political , administrative and other rights and interests in consultation with them”.: “That in other part of India where the Musalmans are in minority , similar adequate, effective and mandatory safeguard shall be provided in the constitution”. This was unequivocally accepted and conceded the true verdict of Muslim India for enforcement of the right to self determination by the Musalmans and no other proposal or scheme was acceptable to the Muslim league regarding the future. Let us recollect the course of the events that led to partition of India on 15th August, 1947. 1) On 20th February 1947 , Lord Attlee the then Prime Minister made the Historic announcement of the end of British Rule in India by stating : His Majesty’s Govt. , wish to make it clear that it is their definite intention to take necessary steps to effect the transference of the power to responsible Indian hands by a date not later than June 1948 . The above declaration was absolute and unconditional in as much as the transfer of power would not depend upon any agreement between the Indian Parties and it had set at rest al the doubts about the intention of the British Government in regard to the transfer of power by declaring a definite date i.e.June 1958, when India would be free from the British control. ii)On 24th March 1947 Lord Mountbatten has assumed charges as New viceroy of India with the task entrusted to him of transferring to Indian hands , the responsibility for the government of British India . iii)On 3rd June 1947 Lord Attlee announced the plan containing the actual proposals for partition of India in the House of commons. iv) Indian national congress working committee met on 3rd June 1947 and approved the new plan .Mr Jinnah had also accepted the new plan on 3rd June 1947 representing the all India Muslim league. v) On 4th June 1947 Lord Mountbatten had announced in a press conference that the transfer of power would be affected not on June 1948 as was declared by lord Attlee in the statement of 20th February 1947 but much earlier than that date in 1947 itself probably about 15th August 1947 .
vi) The Congress committee again met on 12th June 1947 and prepared a draft resolution for the
approval of All-India Congress Committee which met at New Delhi on 14 th & 15th June 1947 to accepted the proposals embodied in 3rd June Plan . vii) On 4th July , 1947 Indian Independence bill was Introduced in the house of commons . It was passed on 15th July 1947 It received Royal assent on 18th July , 1947 Beside other provisions contained in it main provision of the Indian Independence Act was that there shall be set-up two Independent states India and Pakistan on 15th August 1947 . viii) On 14th August 1947 Governor general of India promulgated India (Provisional constitution ) Order 1947 modifying an adapting Government of India Act 1935 to suit the new circumstances. ix) India that is Bharat became independent on 15th August ,1947 . From the chronology of event s stated above , it is evident that as per that famous unconditional announcement of February 1947 made by lord Attlee , it was the date June , 1948 , and not the 15th August , 1947 which was originally fixed for transfer of power. All things were settled by 3rd June 1947 ,British Government , congress and the Muslim league has accepted the partition plan by that date . In the face of all things settled , where was the urgency and the need to advance and expedite the original l time schedule for transfer of power from June 1948 to a much earlier date of 15th August 1947 . it is unfortunate that in that high pitch of communal frenzy And bitterness, the fate of the Hindu and the Sikh minorities then living in Pakistan and the fate of the Muslim minorities then living in India who were the real victims , was unfortunately forgotten . Lakhs of poor and illiterate , Hindus , Sikhs and Muslim minorities living in their respective homes in far of f villages became overnight ,some what aliens and were mercilessly subjected to communal madness. If the original time schedule of June 1948 was adhered to by the leaders, the British rulers would have been compelled before the bar of World Public opinion to maintain Law and Order in the whole of India till June of 1948 , and no prejudice would have been caused to either party, since all things were finally settled by 3rd June 1947 . The Hindu and Sikh minorities in Pakistan and the Muslim minorities in India would have got some advance intimation and would have got some time to adjust their own circumstances and sentiments and there would not have any such large scale panic stricken immediate migration overnight barbarism on either side. When partition of India was found inevitable and unavoidable and was accepted by one all, least that could have been done as small as mercy to all religious minorities residing both in Pakistan and in India , was to allow some berating time to them by adhering to original time schedule of June , 1948 or some other convenient date instead of rushing every thing with undue speed by 15th August ,1947 .They could have jointly requested the British Government to fix some other date instead of putting 15th August 1947 in the Indian Independence bill for the sake of adjustment and migration. The configuration of 2 nd world war threatened the very foundation of British government . The bill amending the constitution Act of 1935 in order to provide Special powers of co-ordinating the activities of central and provincial government to strike at the very root of provincial autonomy. And to render it in a force in case of war which in affect could create a war dictatorship of central government was promulgated . The congress was prepared to co-operate in unequivocal term but the Muslim league imposed two nominating conditions in order to provide co-operation 1. Muslims must be given justice and fair play in congress provinces and 2. No future constitution be made for India without approval of the Muslim League. British government was not prepared to commit itself in advance on the post war constitutional status of India as a result of which Congress government tendered their resignation to the governors by the end of October 1939 . Muslim league adopted a policy of wait and watch. During next two years, congress drifted any from possibility of settling the political deadlock while Muslim league consolidated its position through Jinnah’s adroit -manoeuvring and bargaining with viceroy .During this period the Muslim league passed its Pakistan resolution at Lahore in 1940 demanding the setting of separate sovereign Muslim state, comprising the Muslim pre -abominated provinces of India on 8th August , 1940 the British Government made an offer as the August5 offer with their intention for exposure of governor general council to include certain number of representation of political parties and to set up a consultative committee .Congress rejected the August offer . And the rift between the government and congress become wider . Congress leader started civil disobedience . The Cripps Mission 1942 arrived at 22nd March , 1942 promised dominion status after the war hearing are third of its member as appoints of the princess. The province or the native states which did not like the future constitution may refuse to accede and meant for balkanisation of India . This was rejected unanimously. The Calinet Mission 1946 studied the situation and recommend a part from other that the constituent assembly was to be elected from the provincial assemblies which were to be sp9ilt up into Hindu and Muslims in the election the representative of their major two communities were to be sent on the basis of population of each community in the province. The Muslim boycotted the constituent assembly . Lastly came Indian Independence act 1947 with the ugly provisions for decision of British India into two independent dominions of India and Pakistan receiving the prospect of people living in both the dominions through betrayal and thereby achieving their activities to divide the material resources and potential of our nation by “Divide and Rule “policy even aft4er the independence to our great nation , where the people of both community can very well
live under their collective representation through mutual love and brotherhood in competitive spirit to strengthen the integrity and development of unified Indian citizens , who were living amicably even before the partition of India . The extra ordinary emotional circumstances had overtaken the feeling of national integration compared to main stream of rich cultural heritage and civilisation of India in quick succession after the period of British rule from 1757 and crucial period has started after declaration of Pakistan resolution at Lahore in 1940 and our independence rushed through a very desperate speed paying a very high price as our national leaders were caught up in the whirlwind of violent and emotional events of religious dominion in Indian Muslims . The cumulative effect over Indian policy was now confronted with certain deep-rooted maladies providing great impediments in the way of our national development and even threatening the very security and integrity of our nation. People do not live to face the truth and thus avoid expressing bitter truth . So it is sugar-coated words but still the same can’t ignore the impact of bittes historical truth by evasive attitude and therefore the maladies get deep-rooted by passage of time . It may compel to tolerate even for the save of some temporary gain but to compromise with the evil for a long time may not solve the problem rather make them more complicated and to avoid unassented severe consequences for claiming infallibility a delicate balance be maintained for national importance . The supreme sacrifice by partition of our great nation was offered by the national leader as the price of the freedom due to there imprudence , sentimental , impulsive divisive segmentation . The policy of “divide and rule” to the other alien countries was itself evident over the weak characters citizens living in India who were proved of being ruled through foreign ambitions , has again be submerged into the Indian continent even after getting the independence we have become slave of our peri0dical outburst which generated the feeling of hatred resulting into the confrontation between the two subcontinents and ultimately witnessed three successive battles resulting into casualties from both the side and loss of the vital resources while the internal proxy by provoking the sentiments of the people living in both the subcontinent is still going on which is detrimental for the citizens of both the nations . The house having very vital expansion and unprecedented traditions with natural resources and most suitable climate having plenty of water for irrigation has been divided into two parts and the brothers /stepbrothers is not being allowed to visit in the other part of the partition of the same house due to po0litical aspirations of our national leaders to control the affairs in the powers. This smacks some prejudice and lack of pragmatism political ambitions may be a means to an end but they do not cater the changing requirement of the people living in both the sub-continents of India and Pakistan . The poor peasant societies have been kept sent an subdued personally and politically in the matters of sharp contrast Germany despite the diversification in their policy between wets and east live , the north pole and the south pole on ideological fronts have now been unified in a single identity . Then people of Indian continent living in subcontinent of India and Pakistan may also be unified by getting a control over their impulsive , religious , fanatism for which Indian congress and Muslim league have to be blamed in the historical background but after the dawn of about 50 years of independence we have not started realising the folly committed by in accepting the partition . The people seeking expression ,seeking the participation , seeking some measure of control over the vital resources situated and saturated in a particular zone of the partitioned house may not have prejudiced with each others but find out the possibility of assessment through peaceful bicordial negotiation and by generation a spirit of unification through interaction and divergent mutual antagonistic and exclusive system of utility aspect of unification . The multiple diversities and the operation of internal power politics with treacherous diplomacy of both the countries has further aggravated the situation at the helm of the affairs and complicated problems both to lay down the foundation for survival and successful functioning of two subcontinents.
SUPERIOR COMMAND Vs RIGHT OF REBELLION "Yadyapy ete na pasyanti lobhopahanta-cetasah Kula-ksaya-krtam Dosam Mitra-drohe ca patakam katham na jneyam asmabhih Papad asman nivastitum Kula-ksaya krtam Dosam, Prapasyadbhir Janardana." "Even if these people, with minds blinded by greed, perceive no evil in destroying their own race and no sin by treason to friends, why should not we, O Krishna, who se clearly the sin accruing form the destruction of one's family, things of turning away from this crime? "Atha cet tvam imam dharmyam, Sangramam na karisyasi, tatah svadharmam kirtimca,
Hitva papam avapsyasi." "Now if you refuse to fight this righteous war, then shrinking your duty and losing your reputation, you will incur sin." "Hato va prapasyasi svargam, jitva va bhoksyase mahim, Tasmad uttistha kaunteya, yudhay krita nisc-ayah." "Die and you will heaven; conquer, and you enjoy sovereignty of the earth, therefore stand-up, Arjuna, determined to fight." "He who having sworn by solemn oath at his coronation to protect the people from wrongful oppression fail to do so shall be slain as a mad dog”.( MAHABHARAT) Politics is now regarded as the art of obtaining power and governing the masses through any means irrespective of objectivity towards its ends. The causality of intellectual honesty and lack of understandability with detachment are the result of confrontation and conflict of mutual interest. Superiority over the command between rival groups resulting in the Cold War. Politics war considered to be the branch of ethics, but now it is a powerful brut force of human stupidity greed, jealousy and malice towards fellow citizens. These forces sit over the command of the people. Man has many enemies such as lion, wolves, serpents, but is worst enemy is considered to be his own species with the man power having brutality and destruction at there commands. Mankind has now arrived at crisis on account of its own fate, ignorance and superstition may co-ordinate with these forces which are considered to be the greatest enemy of civilisation. It has come to stand still by the cumulative compulsion of divisive forces fighting with each other with materialistic approach towards life. Mutual love and affection with sympathy towards human cause is based on ethics and not on the theory of give and take. This is based on co-ordination and spiritual power of the individual. Our potential may provide a guide line for success. In the recent time we have visualised that those politicians, who were indulged in accumulating the wealth without providing any consideration for justification of their action, they have undergone through a great mental agony, frustration, discomfiture and disappointment as those people who have provided their best co-ordination to drag these politicians for monetary considerations; they have completely ruined the carrier and reputation due to their criminal prosecution launched by the investigation authorities on the motivation of judicial accountability and the principle of trusty hood as one of the statutory obligation caste upon these custodian’s of power. Marshal Stalin declared during world war "It would be ludicrous to identify the Hitler's clique with German people with the German State. The experience of history shows that Hitler's come and go, but the German people and the German State live on. President Roosevelt said - " I should be false to the very foundation of my religious and political conviction if I should ever relinquish the hope and even the faith -- that in all people without exception these lives some instinct for truth, some attraction towards justice and some passion for the people. Buried as they may be under the brutal regime." In anxiety to punish and disable Germany, the allied Powers flung her into abyssal of economic despair after the first World war, from where emerged the demon of Nazism. They drove them to the frenzy by injustice and then we make that excuse for not redressing the wrong. Hitler became Chancellor of Third Reich in January, 1933. He re-armed Germany first secretly and then openly. He influenced the plebiscite which resulting in an overwhelming majority for return of Saar to Germany. He denounced the military classes of the Versailles treaty and introduced, conscription in March, 1935. He marched into demilitarised shine land zone in 1936. He threw himself on the side of France in Spain-Britain adopted the policy of non-intervention. Hitler grew strength and confidence to fight against the atrocities committed by allied forces during the first World war against Germany. The result as that that Austria brought back to the German provinces for which even Bismarck had not courage to speak. The campaign started for liberation of Sudetenland from Czechoslovakia, a sovereign state bound by ties of treaty and friendship of Great Britain, France and Soviet Russia. This was followed by seizure of memel and defacto annexation of still free Czech territories. People grew furious. The occupation of Prague lead to the war. Till this period Hitler was led to believe that his policies and programme was not likely to a arouse the hostility of Great Britain and France. This has ultimately led to the second world war resulting into the loss of millions life and destruction through aggressive ambitions, which could have averted, if the allied forces have exercised their right of rebellion against the superior command. There would have not been any number. Trial and destruction of humanity by dropping two atom bombs at Hiroshima and Nagasaki to demonstrate the evil desire of domination by Americans at the end of the war.
Churchil spoke with enthusiasm of Mussolini's " Gentle and simple bearing " whole- heartedly from start to finish in the triumphant struggle against leninism on 20th January, 1927. The Italian system was appreciated as being founded on two rocks:- (i) The separation of church and state; and (ii) The right of labour. The Churchill's party defeat after Second World War a symbolic protest against appeasement of Nazi Germany and the opposite to Soviet Russia. Japan was ally of Britain and France. Japan invaded manchuria. No single government felt that it as an attempt against the reign of law among nations. Secretary of state for India said Japan has got a very powerful case based on fundamental realities against continual aggression of fundamental realities against continual aggression of vigorous, Chinese nationalism. This was based on conscience decision by which the British were ruling in India. Japan acquired manchuria and Korea and continued to remain great friend of Great Britain till Japan had not joined Germany. The western democracies were not condemned to the imperialist aggression of Germany. Italy and Japan due to the reason as these countries were saddle in the same boat till the people asserted their rights and forced them to resist. No country was free from sickness of selfish nationalism. The indisputable guilt of excess power should not blind us to the fact to cast the first stone with clear conscience. If we tolerate wrong doing for long; we become responsible for it. The loud complaints were mode against Germany when she launched the flying bomb and it was condemned as an " Instrument of blind malice." "An aimless destroyer." What about colossal violation of by Americans by dropping Atomic Bomb claimed 2,44,000 out of 2,50,000 population of the Hiroshima. All living things, human and animal in Hiroshima were literally shrouded to death by the Atomic Bombs. Nagasaki suffered equally terrible losses. Both cities were a disastrous ruin. It was not dropped in Europe, but in Asia purposely by Americans. Although the poisonous gas was not used in the Second World War, but the American built London ship " Empire simba" of 5691 tonnes scuttled with 8000 tonnes of poison gas held in readiness which left a little scottish harbour to said out into the Atlantic Ocean. But for atomic bomb there was not fear of retaliation as the excess power had no equivalent and for it. The obvious difference between war and massacre is just here. The war is fought the massacre is merely suffered. We do not make war on people who do not fight and retaliate. We can only murder them, killing unarmed civilians by raining death on them from the clouds is condemned as contemptible crime. It is not war. President Truman under the grab of Japan's treacherous attack on pearl harbour justified the use of second Atom Bomb and that despotic contemptible criminal of humanity and further threatened to go on until Japan and her people either surrendered or were completely destroyed. The Christian nations were using a licence to use there weapons under the validity of plea with an implied motive to attain the superiority over innocent Asian citizens; we have just massacre without retaliation of which even barbarous nation would have ashamed while Germans replied to obey the command of their superior officers in a Nuremberg trial were given punishments should Americans be spared from the tremendous cruelties which innocent citizens have suffered ? Whether the future generation bound to suffer due to the effect of radiation at Hiroshima and Nagasaki can forgive such crime ? Once arms are being taken up all the reverence for divine or Human law were thrown away as they have got a license to commit all the crimes without restraint. Whether it was a war of civilisation against barbarism ? Whether Americans were fighting for moral and not for metalistic approach? This grim ferocious epoch with vast horrors and miseries were inflicted by nations who claimed themselves to be the most civilised. The victorious allies were forgiven all compatible massacre of Japanese and humanity as justification urged for a military necessity. The obliteration without previous warning to human being living at Hiroshima and Nagasaki was a crime against the civilisation and there was no parallel to this crime in both the world wars. The fundamentalist of Nazi's slogan for military necessity justifying horrible and barbaric methods were left for behind by the Americans. The war which starts with noble object of fighting brute forces, bad faith, injustice, oppression and persecution ended by the outrage on humanity and civilisation. Moral superiority were no where to get the victory over Axis power. The defeated nations be treated in the spirit of tolerance, sympathy and goodwill and not in the spirit of distress, malice or hatred. The British government cannot escape from the responsibility of deaths from 15-20 lakh of people living in India, a figure higher that the losses of lives of Hiroshima and Nagasaki people, a figure higher than the losses of whole British Common wealth in war over total period of 6 years which was estimated to be the only about 11 lakhs. In-spite of British rule in India over 150 years, that could not save the civilisations due to their imperialism policy. The representatives of three big power Soviet Russia, United States and United Kingdom due to their respective rivalries were totally disappeared to fought against the Axis power, but the outcome of the war has resulted into the reproduction of another kind of Cold War based on economic censor and military superiority. The recommendation of the present Truman for retaining the Atom Bombs by the Great Britain and United States for the alleged protection of the civilisation and will be used for keeping the peace was mere slogan. It was said that the same will not be revealed to Russian. The whole conception was fantastic. Soon
Russian speaking on October Revolution anniversary celebration in Moscow declared that " We too shall have Atomic energy and many other things." General Degaulle, then Foreign Minister of France declared that the Ruineland be again placed under the joint strategic of military and political security of France, Belgium, Holland and Britain, It should be once for all be cut-off from Germany in such a way that its inhabitants should realise that their future did not live with Germany. If nation whose welfare depended on Ruler coal and industry imposed on international regime, some restriction than the rest of the Germany would certainly not be as powerful or rich as Germany would certainly not be as powerful or as rich as before and would never again be a danger because control over the ruler meant control of German industry. The same is the fate of Indian continents given by the British imperialism through their diplomacy and enshrined policy of divide and rule in the state of partition in of Indian continents. About 6 lakh Indian people lost their homes. Three successive battles were on the motherland and still more to be witnessed if the good sense will not prevail over vitious designs of imperialism. British’s who still maintain their supremacy with remote control having significant interference from our leadership. Recently the Americans aggressive bombardment on Korea, Vietnam and Iraq and thereby exploring the natural resources including petroleum products under the protective umbrella over Kuwait is the alarming signal for military aggression by the Americans. The disintegration of existence of U.S.S.R and economic confrontation with China may further suggest that the land on which the future war will be fought, will be of Asians most probably belonging to the land of Indian continents. The economic blockade to China and insurrection of multinationals in India continents may prove the substantial evidence for aggressive bombardment by the imperialism Americans. Our existence may be on stake as being visualised after second world war over the Japanese cities of Hiroshima and Nagasaki. Let us try to avert through constant constructive role for strengthening the national unity and if possible making a confederation of United States of Indian continents. The unified Germany is the recent example of such unification of two portions of a great nation. Let us visualise the impact of broad cast made by the President Truman on his return from Potsdam "America will maintain the basis necessary for be complete protection of our interests and of world peace (as being visualised by aggressive bombardment over Hiroshima and Nagasaki; Vietnam and recently in Iraq). We may acquire any other basis which our military experts deem to be essential for our protection (the production which was done by dropping two Atom bombs against the attack of Japanese on Pearl harbour), a policy of military imperialism. Let us not forget that we are fighting for peace and for the welfare of mankind (slogan and false propaganda is further aggravate the militants aggressive policies). The strategical interest of America must be deemed to be extended upto Mediterranean, outside the site to establish the necessary basis for our own protection. We look for nothing which belong to any other Power- We seek to use our military strength solely to preserve the peace of the world, for we knew that it is the only way to make our own freedom secure." The collapse of Soviet Union, the spectacular economic growth of China as most important power in international system after Americans and the drifts towards a confrontation shaping the dynamics of Cold War is the fresh indication of such policy being adhered to by the Americans in the recent future. China has now emerging as superpower and the Clinton's assertion on of no confrontation policy may be provided with the stagnation over the Americans trade expansion policy, the arm's control establishment and thereby losing the popular support for the presidential candidature due to such policy and therefore the Americans have started realising the issues like expulsion of Dalai Lama, the freedom of Tibetan people and demonstrating it for international independence, identity of American alliance with military co-operation from Japan, Australia and South Korea. This has further broadened the possible aggression by Americans and thereby providing uncertain strategic environment in Asia. It has to be kept in mind that the second world war was not the consequence of German aggressive policies of expansion of their strategic territorial superiority, but it was also the outcome of providing economic censor in Rhinland as a retaliation to the German attack during the first world war. The suffering from the domination of Germany and Japan was fought while the imperial power do not like to get off the backs and cause of the depended people for the independence-Racial pride is not a creation of Nazi's. President Roosevelt said. "Radical strife renders us suspect abroad. Man of all races black, white, Brown and yellow fight beside us for freedom. We cannot stand before the world as champion of oppressed people unless we practice as well as preach the principles of democracy for all men. Race prejudice and radically justified injustices reveal the contrast between the promise and the performance of imperial power. Britain could not have defended herself without help of Indians in the second world war--- what has these British’s given to the Indian people? The miseries our people may visualised by observing the apathy and thereby giving promotion to the fundamentalist to Muslims and the political aspirants Indians to see the creation of two nation theory. They cannot remove evil by announcing ideals." Stalin in November, 1941 declared "We have not nor can we have such war aims as the seizure of foreign territories or the conquest of other people's irrespective of whether European people's
territory or Asiatic people's territories are concerned. We have not nor can we have such aims as imposition of our will and our regime on Slavic and other enslaved people of Europe who are waiting for help. Our aim is to help these people in their struggle for the liberation from Hitler's tyranny and then to accord them the possibility of arranging their own lives on their own lands as they see fit with absolute freedom." The people of a week and backward country, however strong and healthy they might be, could only serve to be made examples of or as witnesses of such futile spectacles; and it was not necessarily deplorable if many of them dies of prolong illness. The most important thing is to change there spirit. The real tragedy is to life up their voice among the living and meet with no response; neither approval nor opposition, just as if they are stranded in a boundless desert completely at loss. Imagine an iron house having not a single window and virtually indestructible, with all its inmates sound asleep and about to die of suffocation. Dying in their sleep they would not feel the pain of death. Now if now you raise a shout to wake a few of the lighter sleepers, making these unfortunate few suffer the agony of irrevocable death, do we really think we're doing them a good turn? It is true that there is no hope of destroying the iron house. But still one can not blot out hope, for hope belongs to the futures. There is no refutation of affirmation of the affirmation of faith clear day light swallowed up the lamp light. If we can persuade our citizens the American disastrous consequences of confrontation with imperialistic policy of expansion and thereby unified together to avoid these fundamentalists forces to raise their heads for forthcoming confrontation through collusion with each other, we hope we are discharging or obligations to serve the nation. Unless progressive intellectuals with the capacity to fight and make their consistent and sustained efforts to sponsor and extend the cause of humanity by fighting with the evil design of divisive forces dominating over the arena of present political set-up of our nation, nothing can be achieved from the emancipation from the prevailing maladies and thereby resulting into the survivability of our civilisation in the complete darkness for future generation. Nature has created men not to war but to friendship, not to destruction but to health, not to wrong but to kind and benevolence. Nature has armed the beasts with armours. Man alone left fourth naked, week, tender with the most soft flesh and smooth skin do better to be knitted together be the leagues and conventions. Our politicians have yet to start thinking of making and enacting laws against the moral crime as one of the sociological need felt to amend on the ethical schools of law. The law is not to be compared to a venerable antique, to be taken down, dusted admired and put back on the shelf moral damage is more terrible. Politicians from the changes like chameleons. Thus the politically motivated subversion of the popular mandate is now a common phenomenon. Thus the law can not be the devoid of morality. The courts of law are the proverbial to the temple of justice. Tilting the balance of justice or sales of justice by weight of coin is the very antithesis of justice. Are the judges are indispensable? If we tolerate them like that of imperial power having their superior commands over the whelmn of the people, we are also protecting that aggressive policies of imperialism over the innocent victim. We cannot dispense with such a responsibility one has to fight for having a command over the whelmn of affairs in the country, otherwise we may witness the same fate of massacre committed over the defenceless citizens and thereby committing the greatest sin against the civilisation and humanity. In the system where the law protect the corrupt politicians and judicial pronouncements keeping justice inaccessible to the poor and downtrodden, a class of lawyer who stood in forefront of national struggle offered the supreme sacrifice and untold miseries for the cause of independence should also rise the occasion and earn a probation and leisure had their command. Justice V.R. Krishna Iyer in his book " Our courts on trial" while dealing with the heading "Justice thyself" has observed:- " The unbecoming of judicial misdemeanour, what was once a whisper, the rumour about Judges and there delinquencies has now become a conviction of their guilt among social realities, communalism and favouritism. We want our judges to be a good man, not "boneless wonders" and bundles of bias, nor wheeler-dealers of justice who stoop to conquer why should turn to publicity merchant cultivate constituencies. Political and judicial influence. Communist and economically powerful centre plead with ministers for monetary and other bonanzas? Why do they run after Chief Minister for posh house, sites at nominal prices as happened in Bombay and Chandigarh. Now that judges are banned from foreign hospitality without central approval, each judicial travel is becoming a ministerial favour". "The present generation of judges should not preside over the liquidation of the great heritage. We still have great hope, we still have great confidence in courts but the court down has begin and a national discussion among state men in politics and lawyers and scholars in social sciences is long over due to save the judges from themselves is now a critical need". "If the judicial process fails, people's sense of justice, violence fills the victim on the streets, not the courts, settle disputes."
Thus the solution lies in passing the suitable structures by the superior courted even disciplinary action to the departmental proceedings for every wrong judgement given by the person preceding over the court of law is the need of the time. The common man seeks realisation of his aspiration in no sphere of public life. The promise of better tomorrow has conveniently forgotten with a leaf turning and today there is a burning danger that the people will work out their destiny through the compelled cult of their own "Dirty Hands". Our constitutional duties prudence appears to be nothing but accommodation, but ours it meant Settlement in regard to show shoe economic progress of our society. So I has no Meaning for millions, I will not know how to into idea and fullest ideas as. Mutual district, declared and in fight is on the Increase. National discipline, co-ordination and co-operative of words have begun that casualties in the process. Strikes, Gherao’s and agitation by the opportunist have become a common menace and bureaucracy and red tapism are well trenched in the administration of Service enshrined and guaranteed as a alleged to be constitutionally recognised. A well organised class is paralysing the entire administration resulting in complete departure of the cultural heritage with the generation of hatred and rampant corruption throughout in the process of administration. The mind is the restless bird, the more it gets the more it wants and still remains dissatisfied except is being controlled in proper discipline and restrictions which are completely in the present set up of administration. Laws are the aggregate of rules representing the collective wisdom of community and therefore applied universally according to the circumstances conditions and requirements of the nation universally for the common human benefit of the people’s welfare and therefore made applicable for the strict enforcement of justice with the changing requirement and sanctity of the rule of law. Doubt perishes the man while apathy to a particular situation ruined the civilisation. Law and order to satisfy the needs of fast changing society has to be involved in order to meet out the challenges instead of remaining static. Thus the judicial thinking to be constructed by the references which would adequately dealt with the new problems and therefore we no longer need the clutches of foreign legal system. It has to be secured through the process of law. That collective interest of the community so that parties do not lose faith in the institution and thereby indulge in private retribution is the prime objective of the legal order. The procedural safeguard should commensurate with the sweep of power . The wider the power, the greater than need for restraint in its exercise and correspondingly, more liberal construction of our procedural safeguard envisaged by statute. Laws are the aggregate of rules representing is the collective wisdom of community and therefore applied universally according to the circumstances and conditions and requirement of the nation universally for the common human benefit of people's welfare and therefore made applicable for the strict enforcement of justice with the changing requirement and sanctity of the rule of law. Doubt perishes the man while apathy to a particular situation ruin the civilisation. Law in order to satisfy the needs of fast changing society has to be evolved in order to meet out the challenges instead of remaining static. Thus the judicial thinking to be constructed by reference which would adequately deal with the new problems and therefore we no longer need the crutches of foreign legal system. It has to be secured through the process of law. The collective interest of the community so that parties do not lose faith in the institution and thereby indulge in private retribution is the prime objective of the legal order. The procedural safeguards should commensurate with the sweep of power. The wider the power, the greater the need for restraint in its exercise and correspondingly, more liberal the construction of procedural safeguards envisaged by the statute . An independent and honest judiciary is sine qua non for rule of law. It is imperative to protect the honest officers from motivated misconceived complaints made by unscrupulous litigants while on the other hand infallibility is an unreliable ideals, correctness is often a matter of opinion. Thus ability to anticipate the fallibility is the gift of a prophecy consideration of finality are subject to the paramount of justice but the remedial action must be appropriate upon which the administration of justice may rest. Thus the law can not afford any favourite other than truth. Life of law is not logic; it has been experienced however logic may not be ignored when experience is silent. There has been erosion of faith in the dignity of the court and in the majesty of the law. The procedural wrangle is eroding the faith in our judicial system and one must introvert turn the search light over the process of deterioration inwardly. Therefore, the law must be definite and such as basic postulate is the requirements of the consistency in judicial decision making process and at the same time, there is the need for foreign flexibility. No straight jacket formula can be laid down for judicial functioning. The concept of public accountability of the judicial system and the professional competency with ability to promote the justice is perhaps overdue and the courts are ill equipped to speculate and seldom at contrary to democratic principles. Values in public life have undergone serious erosion during last few decades what was unheard is a common talk of the day. The new
value orientation has undergone in our culture and we are at the threshold of the cross roads of these values. This is a difficult situation. One makes Law legal only by giving its operation . The consent of one's conscience. A moral obligation to disobey is not less compelling merely because an individual is powerless and that his disobedience may lead to punishment through powerful despotic monarch. It is always electoral of pre-medication to adopt justice as synonymous to law, which may be the command of the stranger, but the humanity and conscience will always be prone to launch a protest through expression against such command of law who has no sanctity of justice behind it. The problem of obedience of unjust law is the root cause for a right to right to rebellion and delicate balance is being observed in the history of civilisation. The position of soldier under section 41 of the Army Act, 1950 as making disobedience to unjust immoral offence is in practice difficult to tackle as being liable to be shot at by a court martial and if he disobeys to be hanged by a judge. There is a concurrent conflicting demands of choosing either of the two. The discipline and of supremacy of law. It is difficult to examine and being aware of a illegality of the order and therefore law contrives an objective test. The Nuremberg trial has further declared that Nazis law and order of dictator must confirm to minimum morality. If it does not stand this test, the disobedience to unjust command will not often the discipline and rule of law will prevail. Resistance to oppression is the consequence of other rights. When the government violates the rights of the people, insurrection for the people and for each portion of the people, the most sacred of all rights and the most indispensable of all duties. Abraham Lincon’s famous slogan “Government for the people ,by the people and of the people means that the people can exercise their constitutional rights and revolutionary rights to dismember and overthrow the government. Thus rebellion to tyrants is obedience to God. Whenever any government becomes destructive of certain inalienable rights of life, liberty and pursuit of happiness, the people have the right to alter or abolish it. The abuses and usurpation design to reduce the existence of the individual and to act like absolute despotism, it is the right and the duty to throw of such government and provide security to the citizens. The rebellion against government is further justified when the majority of the people are oppressed by a despotic minority and then it becomes a moral duty of men who love liberty not to permit any moral rights to rebel against the majority. Practice of non-violent methods of rebellion as a means to end tyranny has been justified by our founder father but tyranny which makes reforms impossible is difficult to be tackled down and in that situation only the public opinion can safeguard the interest of the society. The obligation to obey the law is always linked with the question of justification for the natural outburst with the right to revolution. The ultimate raison de etre for you social discipline is reconcile apparently with conflicting claim of liberty and law. The justification to obey the law through civil disobedience involves conscious disapproval of government's action. The other factor of disobedience is through non-enforcement of the sovereign power of imposition of tax law and when ever the protest has the justification for not agreeable as unable to conscience to obey it. The peace and tranquillity of the realm is always supreme as such violent emotion is unwarranted by moral law .Socrates, who searched into things under the earth and in heaven and therefore the youth refused to hold his tongue and prepared that as he realised that law applies with equal force to all to maintain ordered society and in order to resist against. Unjust law are must not to being afraid of being incurred in punishment for disobedience, if his conscience permit him to do so. Recent events have revealed the damage of letting ashore on body politics to fester for to long, the solution must be consistent with the unity of the country and national interest and not on as can result in claim of reaction detrimental to those interest.Despite the enduring the assurance by every political party in the parliamentary democracy for country’s stability progress and radical reform, there is a complete social disruption. Sometime there is ideological compatibility due to personality cult and dynasty rule over primitive society but when there starts inherent contradictions and ego concentric personality clashes, the country stability ,progress and radical reform comes to ignominiously halt. Socialism is to social justice , what ritual is to religion and Dogma is to the truth. Our present politicians has imposed so called mindless sociological arrangement on the nation under the garb of socialism which has held in thrall the people endeavour and enterprise resulting in the transfer of wealth from the honest to dishonest opportunist, merit to the demerit; quality with the quantity and justice with injustice in the guise of giving social protection. This is the reason that 231 public-sector enterprises run by Union government and 636 by the state government of extracting the material resources from public exchequer realising exorbitant price from India's doctrines socialism. If the politicians are actually concerned and they should have provided the financial security to the backward classes as to enable them to survive by distribution of resources with a logical distributive justice. There is only quantitative growth without quantitative developments. The influential politicians who preferred to let socialism remain the opiate the people and of whom it can be truly
said that if the ignorance is the bliss they should be happiest men alive. Gandhi ji said “Economics that hurts the moral well-being of individuals or nation is immoral and therefore, sinful . True economics never militate against highest ethical standards, just as all true ethics to be worth of its name just at the same be also good economics. An economics that inculcates worship and enables the strong, to mass wealth of the expenses of the weak is a false and dismal science. It spell death true economics on the other hand stands for social justice, it promotes the good of all equally including the weakest and is indispensable for decent life. Gandhi ji told “I do not believe that multiplication of wants and machinery and contrives to supply them is taking the world single step nearer its goal ……a wholeheartedly detests with. This met desire to destroy the distance and time, to increase animal appetites and go to the ends of the earth in the search of their satisfaction. If modern civilisation stands for all this and I have understood to do so I call it Satanic” . “A civilisation, in real sense of the term consists not in the multiplication but in deliberate and voluntary reduction of wants. “Industrialisation on a mast scale would necessarily lead to passive or active exploitation of the villagers as a problem of corruption and marketing come in. Nothing should be allowed to be produced by the cities which can equally well be produced by villagers. The proper function of the cities is to serve as clearing houses for village products. Here are more hands than required for the work and therefore the problem is how to utilise the idle hours, they will render unemployed. The concentration of production and distribution in few hands privilege oriented monopoly. The industrialisation must not deprive people from environment, must but must in village artisan to reduce his drudgery and improve his efficiency”. This is the answer to the concentration industrialisation in the cities having no air to breathe at Delhi 460 S.P.M level ,Calcutta 460 S.P.M level 350 S.P.M level each. Justice H.R. Khanna, when appointed as commission of inquiry in the year 1967 in respect of the matter relating to the charge of corruption against the minister’s of Orrisa including three Chief ministers, one of whom was Biju Patnaik while dealing with 70 charges of corruption levelled against them, was faced a situation dealing with the arguments advanced on behalf of two ex chief ministers, that there was no prescribed code of conduct for the ministers to held them guilty of impropriety, that ministers cannot use their officer or allow them to be used for furthering the business interest of his family members to have commercial dealing with the State as they themselves never passed orders in respect of such transactions. Justice Khanna observed that a person on being a minister becomes the custodian of the public interest. Thus he should so formulate his politics and his activities that there is no possibility of the clash between his personal interest and the public interest. The role of minister has got to be that of pioneer rather than a pirate, of the public to sentinel rather than of self seeks of one dedicated to the public cause and not one obsessed with the desire of personal gain -- -- what is needed is a climate of strong public opinion where in none may dare to deviate from the path of rectitude . Law can punish only occasional lapses quoting a classic passage of judge hand. “ I often wonder whether we do not rest our hopes too much upon our constitution, upon laws and upon courts. These are false hopes liberty lies in the hearts of men and women. When it dies there no constitution, no law, no court can do much is to help it while it lies that it needs no constitution, no law ,no court ", to save it. The question is whether the laws speaking through the authority of the courts to deal with such threat to the security of the state, shall be absolutely silenced and reduced mute spectator because of such threat. The answer has to be given to the public. A raise weary of its own blood shed and diversities should cultivate public opinion which may offer the only chance for the survival of the species. The best guarantee for such situation is good sense of those in power, the vigilance of the people and the pressure of the public opinion. This is an alarming situation which spell out the gravity and further invite peoples co-ordination to formulate public opinion to fight through the policy of non- co-operation which has provided the independence from the British rule by our leader Mahatma Gandhi . “Every day that comes and goes, every mile the river flows, says to me and say to you, much there is to learn and do, for the water and the day, no more will pass this way”. Mankind has a habit of surviving worst catastrophes created by its own error or by violent turn of the nature and it must be so if there is any meaning in its existence, if its history and continuous survival is not the accident of a fortuitously self organising chance which it must be a purely materialistic view of the nature of the world. If man intended to survive and carry forward the evolution of which he is at present the head and to some extent of half conscience leader of its march , he must come out of this present chaotic life and arrive at the organised efforts. The ideal situation would be fulfilled by the accomplishment and preservation of the people from its own extinction by the folly committed by his own species.
EFFECTIVE MEASURES TO ERADICATE EVILS The dawn of independence has virtually came with confrontation of many problems for effective administration . The foremost and the prominent problem was for rehabilitation of the refugees. There was no place for providing them the basic requirement of shelter and for that reason, the government provided the shelter home for them. The locality was not congenial for their adaptation . Thus the hostility amongst the people has started generating their side effects . The civilisation is the beginning of the governance to any nation. In absence of any co-ordination amongst the fellow citizens , the concept of social embodiment was virtually evasive . Thus there was neither any co-operation nor co-ordination amongst the citizens. The sole motto was to accumulate the resources for advancement and to enforce their hypothetical illusive superiority amongst the other inhabitant. Thus there was a complete absence of religious and spiritual concept in the society. No man can survive in isolation . There is a rule of give and take . The moment one person is inclined to accept everything as a matter of his right, the person who is inclined to give him his extra potential , withdraw the basic offer. This become the end of social collaboration . No country is able to survive except by the will of the people . The bitterness amongst the people may ultimately lead to a crisis on psychological level. Thus the country required the coercive method for the enforcement of law and order situation. This was on account of partition of India. After independence there was the abolition of the Zamindari system in India. The entire agriculture land was wasted to the state government. The farmers were given only their cultivators rights over the rural land. Thus the concept of ownership was diluted to certain extent and those who were in occupation over the agriculture land became the Asami. Even a Bhumidhar was not vested the absolute ownership and was enjoying the transferable cultivators right. Thus the initiative for improvement of the land was slightly undergone a major change. The investment in the agriculture activities was multiplied to its many fold. This was due to inflation and the steep fall in the value of money. Thus it has gradually declined the production of the agriculture produce. The system has further suffered another set back by commercial activities as the cost of the labour was gradually increasing in its output. There was the difficulty faced by the farmers when they have entered the same cost of labour, what was required to be incurred for production. The commercial activities and the industrial production were not d4eprentdent on external factor like environmental misbalance and the natural calamities .The farmer having an agricultur3e production was solely dependent upon these two factors, this has provided a great disharmony in the progress of our nation . There were class prejudice between the various section of the society and this factor was coupled with the socio-economic factor relating to the comparative assessment of cost productivity. On one hand the industrial and commercial productivity was within the control of the labour to a certain extent however there was no organisation for boosting the cause of the farmers. By the erosion of the ethical values in the society and the rapid growth of the population, there was gradually a process of migration from there motherland to some of the major cities in the search of the better avenues for remuneration by the people. Thus the major population which was totally dependent on their agriculture output an living in rural area has under gone a great set back in respect of their earning prospects and ultimately by the fragmentation of the segment over the peace of the land, there was gradual declination of the standard of living in the village area . The political equation which were originally set-up in the pre-independence era were caught in the whirl pool by the violent stroke of caste system which was generating the devaluation in the national integration with cumulative effect . People do not live to face the truth and thus has their evasive attitude which deepens the compulsive gambler maladies by the passage of time. Although there was deep bitterness amongst the different religions but the slogan were promulgated by our political leader to maintain the feeling of the brotherhood which was not possible without proper enforcement. Thus in such as situation when there was already a deep conspiracy to upset the flow of the national esteem amongst the mind of the citizens by the other nation ,the political set-up of our country has further exaggerated such problem to the multiple proportion. There was the need for law enforcement agencies but such enforcement was still not possible without having a control over the system . This has become a crisis in the first decade after the independence gradually there was as rampant corruption ascending in the public life and the galloping race which was developed by the process of character assassination could not be halted even after the enforcement of the highest law of our country . The crucial factor , as are being discussed above alike hunger , deficiency ,disharmony and disintegration ,has further provided a fast deteriorating standard of our society and as a counter productive reactionary trend , the crime has perpetuated in our society. In absence of any deterrent , retributive and punitive theory of punishment , the political arena which was previously occupied by our so called political sufferer in the freedom movement, was gradually replaced by the criminals. This was a paradise to every law evading process to shield up their responsibility as a repercussion of the criminal activity by the procedural processed jurisprudence . Thus instead of having any growth for the advancement of the nation, every potential and resources lying within the competence and power of our citizen was vested in providing the security to our political superior. Thus by the dawn of fifty years of independence, India has not only undergone through a political uncertainty but it has exposed its character by demonstrating an example of hypocrisy, religious hatred and criminal domination. The industrial output which was occupied by labour contribution, has further suffered on account of low productivity in the public sector. There are about 250 public sector in the central government
while 710 public sectors are occupied by the state .These sector have become a money guzzles for the opportunists for accumulating their personal assets. The East India Company was initially given the power to get the administration over the different states as the ruler may earn the revenue through British’s but ultimately they became the ruler. The present industrial set-up of our country has further invited such divisive forces to rule over our nation. The first and foremost requirement in our country is to deal with a criminal with severe punishment .It has rightly been said that it is only the fear which keeps a man to do the righteous thing in his life. The bane of caste system, the business of religion and unhygienic process for accumulation of the assets and resources with the limited people which has provided a disharmony in the society , can only be dealt with by confiscation and forfeiture of the property belonging to the criminals. The bonafide citizens and a genuine person may not be liable to suffer the atrocities committed by a criminal who may get escaped from the punishment by making a target on the victim. The state is responsible for every crime and it is a lame excuse that it is meant to preserve only the law and order situation. There is a need for getting every person being removed somehow or other who by his own nature uses to indulge in a criminal activities . That is the need of the time the criminals. other wise the entire nation will be compelled to become the hens of
There is the second requirement for having an accountability of the wrong doer, It is certainly not the purpose and the objective of the law enforcing agencies , that a wrong be corrected or rectified. This is a reciprocal obligation upon every superior authority in the hierarchy of the system that their subordinate may get the proper punishment for every wilful defiance of their inaction and such in subordination of the rule of law in the society. It is the high time that every quasi judicial action in which there is a glimpse of dishonesty , such action apart from being dealt with by rectification of the mistake , be accountable against such officer on account of whose wilful negligence or lapses , the affected person has undergone a great agony, discomfiture , disappointment , frustration otherwise there will be no end of dishonest and apathetically circumstances from the society. The ecological cycle has been totally disassociated from its normal course. There is the need for filling the rainy water inside our first subcutaneous layer from where the water is pulled through pumping set. This will provide the immediate water requirement to the citizen for their daily use as well as for their irrigation. There is the wastage of this water and ultimately the same is providing the flood to the other portion of the country lying on low altitude and in this manner we may again restore the glory of the Himalayan valley throughout our nation. The privilege orientation system being generated for creating a psychological; terror on the mentality of as common man is required to be dealt with by the people themselves as no-one wanted to get his privilege been taken away simply on account of the wishes of the other citizens. The voice of the intellectual is soft and till they may not unite in the battle , the victory and the chances of success is always lying at a remote distance . Every toil will have its own colour subject to that we may be inclined to eradicate the prevailing maladies. In exercise of the power conferred upon para eight of the tenth schedule of the Constitution of India, the speaker of the U. P. legislative assembly had framed “The member of U. P. legislative assembly (disqualification on the ground of defection )Rules,1987”. The statement of object and reason of the Constitution (52 amendment) at, 1985 were sum up in these words. The evil of political defection has been a matter of National concern. If it is not combated, it is likely to undermine the vary foundations of our democracy and principles, which sustained it. The anti-defection Bill is meant for outlawing defection and fulfilling the above assurance. Surprisingly, the expression “Political party” and “Defection” are not defined in interpretation clause. The splitting of 1/3 members of a particular party by formation of separate group is permitted, but the defection of a individual legislature is prohibited under the Act. This is a very strange that if you commit the murder of democracy with impunity under the garb of the split in political party, you will be punished but the infliction of the injury on political party is punishable with the disqualification of the membership of the legislature; if the legislature has acted according to his conscience by supporting the resolution of confidence or no confidence. The question which arise in the mind of individual citizen that whether while exercising his adult franchise in the election, he chooses an individual candidate or political party to come into power and it the political party is voted to the power why the individual is permissible to play the vital role in the formation of the legislation. There are other questions regarding the sanctity of the whip enforced by the individual party is a democratic trend or it leads to an anarchy or an oligarchy. Thus the Parliamentarian system of the governance by the political party appears to be undemocratic on its face value. The supply of the essential commodity like food water electricity and other resources should be provided without interruption and for such crisis there is the vicarious liability of the state government. Thus it is for the state government to adopt the suitable measurement for providing such commodity and simultaneously to dealt with the person / employee working under them by awarding suitable punishment if they may cause such disruption. The outcome of the agriculture production are the assets of the nation. There is the check and balance in respect of determination of the prices of the food products. However despite being regulated by the government policy, there has been an apathy with the problems of the farmers. Since the entire land is vested with the state government ,it is the duty reciprocal upon the state to
provide the improvement in the soil for better productivity. There are many defects in the present system of agriculture system and till the government may not be held responsible for cultivation soil conservation and for providing the fertility , nothing can be improved by merely the slogans . Unfortunately there are the instances of the arrests a poor farmer when he finds himself unable to fulfil the contractual liability by repairment of the debt which he had taken for proving irrigation, cultivation and production of his agriculture land. Whether the government is justified for keeping privilege orientation and simultaneously putting the farmers inside the jail on account of there failure to repay the loan due to some natural calamity. Every sort of incentive by providing the financial assistance to the needy people is of no avail , if the son of the soil may undergone a treatment of discrimination and arbitrariness by committing atrocities upon them. The universal declaration of the human right is nothing but a misnomer in India . There is neither a human being who is born free and having equal dignity and rights as are being enjoyed by few opportunists. There cannot be an endeavour in the spirit of brotherhood. Our country has got the race prejudice which is dependent not only on the basis of the colour, sex , language but on the basis of caste affiliation. Here is no security of the person and everyone is subjected to be ruled by the law enforcing agents either in slavery or in servitude. People are subjected to torture and to get degrading treatment by another fellow citizen whoever is enjoying the power. The right to an effective remedy is totally collapsed by the pressure of the work. In such situation, how the courts which are considered to be sentinel in the quivive may enjoy the protection of the rule of law in the society. Success lies upon the effective measures to eradicate root an branches of all evils. It is been considered that now the arms of the law are not long enough to mould the law . According to the need of the people. The law enforcement agencies are mainly adopting the coercive power by providing a torture and they are seldom not concerned with their duty. Thus a clear imperative by proper planning ,constant counselling and persuasion are the appropriate mean rather abrupt and spontaneous method. There is a need to provide some incidental and ancillary powers to the courts for adopting new device, new methods and new strategy in securing the justice to the people. Necessary amendments are required to be done in our constitution by expanding the scope of Article 226 and 227 of the constitution of India. The judicial verdict may be regarded as the foundation and the third pillar of the democracy which may have some foundation on the basis of the public opinion. If the people may start their trust in such system then no one can save it from the ultimate collapse thus every procedural law which is providing a barrier for effective adjudication of a dispute must be wiped out from its inherent impediment. The process of judicial proceeding are in itself cumbersome and exhausting. There are huge investment in the process of final verdict . Thus a system is required to be develop in which the person may feel confident. This is not a system which is purely dependent upon the gambit or like a profound gambler but on the other hand it may require to win the trust amongst the people. If the litigant consider it as a chance verdict for which a huge investment may require then for him it may become as a Hobson’s choice. Unfortunately the mutation proceedings for providing the name being recorded ion the revenue record and on the basis of which every transaction is dependent are still being considered as the summary proceeding which are collateral piece of evidence for the purpose of realisation of the compensation in the land acquisition and for proving the possession . who bothers for title and it is seldom found easier to fabricate a negotiable instrument and document for raising a dispute and there by to obtain an injunction even amazed the state government to cultivate a right over such land. Thus it has become a compulsive gambler to an innocent citizen either to surrender his rights of ownership or he may adopt a course of criminal nature to settle dispute. Thus if the accountability and responsibility of the wrong doer may not be fixed by the present judicial system the foundation which are based for the peaceful assimilating of the superior command may gradually be vanished from the scene of our present judicial set-up. The concept of tortuous liability has yet not been evolved for providing the damage to the victim of the wrong. In absence of such responsibility there is neither the requirement which has been visualised by the higher judiciary to have the proper and effective control over the subordinate judicial officer. Power of judicial review is coupled with the power to scrutinise as to whether the judicial authority entrusted with the power to hold enquiry was vested with the jurisdiction, power and authority to reach a definite conclusion which has been arrived by such judicial officer in delivering a judgement . The legal proposition based on such supervisory jurisdiction is coupled with the fact as to whether an abuse of the discretion may not be viewed by its magnitude and its gravity of the said misconduct, may not be sufficient for disciplinary action. Such power may be exercised in exceptional cases but atleast there may be some fear in the minds of the judicial officer to conduct its functioning as the confidence of the litigant public may not be shaken by the lack of integrity and character of the judicial officer by providing the suffering to an innocent person and also to maintain the discipline in the judicial service. Unfortunately we have lost our sight from this basic requirement, which is necessary to maintain the rule of law . The government has a sovereign function which includes the right to impose tax. Seldom , people ask that why they should be held responsible for the payment of the tax . The reason for their declination to fulfil such a responsibility is basically two folds; Firstly, the public money is mis-utilised by the bureaucrats and other politicians, who are holding the public office as the custodian of the trust of the people. Secondly, the money which is realised as the tax is occasionally mis-utilised for
the political consideration which is contrary to the object and being invested for extraneous consideration. The tax payer has a right on the public exchequer as it may not be hired at the convenience of the politician. In absence of an institution like that of Ombudsman which is known as Lok -Aayukt where the people may lodge a complaint against the dishonest and corrupt officials. This is due to the reason that in India , we have lack of sense of duty and dedication to public service and a reluctance to confirm one’s own behaviour to the accepted norm of honesty and probity in public life. Illiteracy reigns supreme in India. A complete absence of enlightened public opinion is prevalent which is necessary to make such Institutions work. A persistent tendency to subordinate national interest to the personal interest accompanied by an Individual his inordinate love for chair , power and money is evident in our country. Thus in absence of a superior command we may seldom get a man, who by his own nature may be indulged for the welfare of the people. This is only the fear which may keep a person in order . The judicial system which was initially meant for rectification of the mistake of the subordinate judicial officer , is seldom found in itself being indulged into its own mistake . The litigation is now being filed nearly as a clock for attaining private ends and as such the court must be careful to weigh conflicting interest of the other side. The consequent delay in disposal of the cases is seldom visualised the shortage of the water supply for the agriculture irrigation facility, shortage in electric supply ,obstructing industrial development and for the construction of the road and irrigation canal by entertaining the petition on the plea of malafide or by levelling the allegation for collateral purpose against the land acquisition proceedings. Thus there may be reimbursement of cost of escalation resulting from such delay to the public or to the affected party , in case such litigation which has started for extraneous consideration ultimately fails. Religion is politics ; and the politics is the brotherhood ( William Blake ). Thus the politics is an essential branch of the art of promoting the human welfare and happiness but it was never considered to be an art of obtaining power, which may turn as demagogy. Every action has three basic requirement for its objective , i.e Desire , Emotion and Knowledge. In absence of any of the three basic ingredients to be adhere prior to the implementation of a policy, we may have the utter failure in every efforts. Thus the country is also bound to collapse on every front, if there is the absence of the knowledge amongst our politicians. Every basic thrust is secondary for the utilisation. If we consider money as the paramount consideration for attaining the political power , the custodian of the public trust shall automatically purged with the illusion of hypothetical superiority and nothing shall remain to provide a contribution towards the welfare of the citizen. The necessity of the money is to achieve the basic requirement otherwise the accumulation of it in itself become a corruption. The similar sentiments may be attributed towards power and sex desire which has its reservoir in the emotional psychological sphere but if it is unchecked it may result in disastrous for the society. Thus if we are inherently incapable to decide, what is required for our existence , there is a need for sanction and the punitive measurement, if one may side track from the basic requirement unfortunately despite our inherent capability to improve in a span of last 50 years after being ruled by the alien power, we have yet not evolved an effective system. This is the reason of our political disaster. Oligarchy, a system in which ultimate power is confined to a section of the community; the rich to the exclusion of the poor, aristocrats to the exclusion of plebeians, opportunists to the exclusion of benevolence , reservation to the exclusion of efficiency, males to the exclusion of females ,is an absolute monarchy in our nation. This system is based on the ethics of gaining more advantage of than of that of the rest of the community. The power rests on public opinion and if we diversify our intention for the lesser important factors, the prominent amongst them may be crucified. This was the approach of our political master to rule the nation after getting independence . In the present context of the political set-up of the country having certain global phenomenon regarding involvement of the politician at large in the nefarious activities by gaining undue prominence without any moral obligation towards the citizens to protect their human rights , there should be the persistent efforts of the people for participating into political sphere as the article of perpetuating corruption by mediocrity and thereby earning enormous money and power to be restricted for which the person willing to sacrifice their future for the betterment of the human rights of the public may come forward . The choice of the people in political arena for launching any political party into the power is just like of patting the snake or Cobra . Destiny is the result of consequences reflecting through individuals action. An urge may lead to big surge . Hell and heaven both exists in a society only the truth remains without any virtue , not with any voice. It is said that where the science ends , religion begins ; where the religion ends spiritualism starts ; where the spiritualism ends , a reality survives. These are the realities of the life in the process of evolution . the creative acts of the genius are always remain the subject matter of criticism as they are usually confronted with optionally stupidity of other fellow citizens. There is a delicate balance between public duty and personal honour . The numerical majority leads to the destruction of benevolent leadership . The human progress do not originate in the composite brains , but it is by the wisdom of the individual personality . Thus in the search of the better human rights provided to its citizens , there is necessarily some impediments in process of evolution and advancement of society because the protection is at large in favour of those citizens who are involved through their activities towards their towards destructive approach for advancement of the society , which is detrimental to the interest of the superior in command . Still there may not be any compromise with the human rights conferred upon an individual.
Society is becoming more complicated. The democracy brings with it evils of its own system . It is difficult to search a really devotes person amongst the majority. Psychological reconciliation amongst fellow citizens to utilise every potential energy and to maintain co-ordination between fellow citizens. Civilisation begins in order , grows with liberty and ultimately perish in chaos , civil liberty are better and save as long as its enforcement do not bother others existence . Administrative system and judicial institutions are considered for vacillation of the purposes. There is always a conflict between opinion and rivalry of the interest. Time has come to expose the falsehood and fallacies through discussions in order to avert its global devolution. The remedy is speech, not enforced silence. The ship of progress is equipped with moral strength. We cannot remain silent spectator by observing the gradual disintegration of every institution in a democratic society. However , our potential will prove the power to save them and to resist against evil disasters . There is no steady advance towards higher condition of progress. The opinion persists to subordinate personal interest to social interest as the vested interest are always motivated to usurp power through any means even at the cost of its own interest. Sincerity is now slave of destructive activities and human rights are passing through the state of psychological retardation. Attitude of the public is mainly consist of denouncing the receptive norms. Moral damage is more terrible. The individual human rights enforcement is inadequately persists and thus the existing remedies are required to fresh appraisal. The entire fabric of the society is scattered and shattered , which is existing with galloping corruption. The proper assessment of legal and social condition is essential. Reason obeys itself while ignorance submits to whatever is dictated to it . Freedom does not mean abuse nor liberty is a license . The survival of the human rights and individual freedom requires obedience, endeavour, honesty , truthfulness, sacrifice , discipline and character . Implementation of the strong idea requires steadfast wisdom. Such idea should burst every chain , which tends to paralyse its efforts to push forward. Most of the people tends to see nothing nor inclined to observe. They do not take the notice of evil consequences as the simplest and the cheapest attitude is apathy. The ensuring success is mostly understood at the beginning due to strong contrast of public opinion . There is one prominent factor in representative government that it is not ruled by the minority through the brute forces and may again lead to us for a slavery. Thus it is seldom considered that let the advancement of the people may suffer by other radical factors , but at least we are not leading for the unpleasant slavery and subordination at the hands of a foreign ruler. Thus we have to search the new method, strategy, accountability and responsibility in the present political system of a representative government. Every art and every enquiry and similarly every action and pursuit is thought to aim for welfare of the people and thus all things depends upon them to find as better end . LAW SHOULD LIBERATE, NOT ENSLAVE Jurisdiction of court is like that of constructor of a building which has either perfection or many defects. The final word of posterity is dependent upon the skill and calibre of builder who may heartily desire to build up it like expert builders with architectonic virtues to amend or/and add some material both by method and uniformity and if the structure itself does not found ventilation for the want of windows and lake of sufficient light or other deficiency in the architecture, whatsoever, then to demolish the existing structure, only than we may blessed the amending hand as if the trumpet idea gives an uncertain sound who shall prepare himself to the battle? Likewise justice should speak by tongue, word easy to understood, otherwise how a common man will understand and know what is spoken, if the justice shall be spoken into the air? There should not be such short sentences as we may forget the use of verbs which may reconcile the idea into action. “The play is done : the curtain drops slow falling to the prompter’s bell. A moment yet the actor stops and looks around, to say farewell. The approving audience gives him cheer. He bows to them and says his say. Yet down his cheek there falls a tear from him. This is the ending of his days.” Fragrances are more hypnotic , music more inspiring , food tastes better and the sense of touch is more intense. This is all because of human Aura, which is extending an outlining the head and body through spiritual cult in the form of twinkle blue, pale or gold and glitters through etheric world. The physical vision is usually peripheral with the third eye located as pineal gland. This is known as holo, which passes through legend, but gradually earthlings have lost the ability to see the Aura, the etheric or a holo except the few person, who have retain the gift in their present incarnation. This is of vital importance to the individual’s health, happiness and spiritual involvement. The esortic wisdom begins with the understanding of real existence. You can be able to see the etheric or human Aura and then your subconscious will pack up the message for uplifting you to the higher self by using the crowded elevator. This overlapping and mixing of etheric self with crowded elevator creates tension and uneasiness except few extravagant personality. Every person in the world need a space. There are electromagnetic charged atmosphere, which may be washed out by taking a bath through shower. As those magnetic pits which may be picked up from others be washed off. Some of the animals have better sense of understanding the effect of Aura, etheric and spiritual carving of individual through there perceptions. Adversaries are the touchstone of brave mind. The spiritual way of living may only be adopted by taking the course of its learning which the individual may incline, when he will proceed further to learn in this regard. Since the necessity is the mother of invention as such without
having any need for learning, one may not advance through this process, except in adverse circumstances. It is rightly being said that the bearer of the shoe knows as to where it pinches to such individual. Let us start with physiology of human body which has the respiratory organ for breathing of the air. It provides the survival of the cells of the brain and the rest of the body is provided the air for nutrition and energy. The deep breathing indulges the individual through passing off the channel from the nostrils and comes in the contact the thin layer over brain where the fluid is filled up and is connected with spinal cord at its base. The “Kundanlini” in the individual contains the fluid which is sucked through suction force to the cells of the brain. In this process the potential to one’s perceptions in respect of his retention power inside the brain may directly be attributed to the individuals memory. This gives a personality cult of an individual to make the further advancement in life. In absence of such atmosphere, one may feel despotic isolation and thereby the stagnation to the process of evaluation may ultimately ruin the future prospective for progress. The mind is the master of senses and the breathe is the master of mind. The mind cannot be restrained without restraining the breathe. Mental activities keeps pace and respiration. Thus the consultation is regarded to be the best source for all sort of management of human affairs. This may be in numerable form of philosophy. The philosophy of argument and the philosophy of the rule which capture the intellect in there nets and led it away from the true knowledge. The physical control is merely a preparation for mental control. When the mind is calm down, It is indeed the process of becoming one with reality begin. Only few dies of suffocation but rest of the death are caused as such person has not been breathing enough from years. Let us examine the existence of these principles which are necessary for the protection of the society in which the judicial discipline is the source of inspiration for protecting the fellow existence. The Hindu mythology also based on the principle of separation of power. There are the different duties and role assigned to the omnipotent powers in the universe. Lord Brahama is considered to be the creator of animal existence and other human being in this world while the Lord Vishnu is considered to be considered to be the protector of the living creator while Lord Shiva is maintaining an equilibrium by imposing the appropriate punishment as to maintain the esteem of administration of justice. There is not even an absolute power vested with the God itself according to our Hindu mythology. Thus the concept of legislation, executive and judicial power is embodied with separation of power. The religious virtues are marked with ten characteristics viz. patience, forgiveness, self denial, honesty, purity, mastery over senses, sensibility, knowledge, veracity, and cheerfulness. The individual has not given an absolute power and likewise the universe protects the existence of other fellow being to be ruined by the stronger as the lion and other carnivores animals may not destroy every healthy and vigorous animals. Thus the individual having the absolute power of government may not be allowed to rule the nation. The ruling body of the people may not be vested with the absolute power nor the person embodied with such power should be allowed to delegate it to some other person otherwise the fate of the nation will be identical to the fate what we have visualised by giving the power of management to the British East India Company who had subsequently captured the full command over the nation. The mutiny became the turning point for justifying the rule by the British domination, as the nation was subsequently came under the control and sovereignty of the British Empire. The country must be free from enemies and for this purpose law and order situation must be effective in vanquishing the enemies and resisting their onslaught. For this purpose, the enforcement agency be admirable and efficient for becoming victorious through benevolent rules and regulation. The law of punishment is the dispenser of justice. The theory of retributive justice must be implemented to wake the people who are fast sleeping. It is difficult to wake them by shouting a voice as those who are having the intoxication by power, wealth and privilege may not rise to the occasion for the advancement of the country. This is important as the virtue of religion which is meant to preserve the justice and not to destroy it. The abortion of justice provokes the resentment of the people. Thus it is important that at least a person who is sitting on the seat of legislating the law and to deliver judgement may not be voluptuaries, malicious and if he has such disqualification, then the person occupying such position should be punished by retributive justice. The justice is a very awful and majestic, It cannot be upheld by ignorance and non righteous person as the person who is not learned, untrained and block headed is never able to enforce the law with justice. Thus a wise man is only able to enforce the law in the strict sense. The decision of such judicial member may not be transgressed by any one. There were ten evils always recognised from ancient time which are arising from the love of pleasure; i.e 1) Hunting, 2) Killing of innocent animals, 3) Gambling, 4) Sleeping by day time, 5) Listening to love talks and scandals, 6) Excess with women, 7) Use of intoxicant, 8) Singing in club, 9) Playing musical instrument in night clubs, 10) Useless strolling. These vices are now been accepted in the society as the necessary evil. Nothing can eradicate the prevailing maladies except by strict enforcement of the discipline which is not given the due priority in our country. The government should watch if the justice is upheld in inflicting of punishment and no unjust punishment is inflicted. The treasury and the executive work must be in the hand of such responsible person who should be held responsible for the lapses and given deterrent punishment, in case they are found to provide the loss to the public exchequer. It is as fare if one hundred entrenched garrison soldier can resist the attack of ten thousand enemies, why not a patriot to this nation may be able to get the correct prospective of our system. Thus it is not only the punishment for reformation or
censure is imposed but in the deserving case, the person deserving punishment may be provided with the exemplary punishment as no other person could dare to commit such wrong with the people. In case of violence, theft , adultery defamation, insult and assault, since these offences are usually being committed in secrecy, the onus is shifted on the accused person to prove his innocence. The culture and heredity plays a vital role in governing the nation. There should not be the denouncing to the existing values by invasion of encroachment over the existing set up. The attitude of the people is important and a governing factor to built up a society otherwise the inglorious incidents shall take over the existence of the society. The capitalism approach of life with atrocities committed by the superior over the down trodden is required to be dealt with sever punishment as there is no protection to the poor class of citizen. There is always a struggle for existence and it is understood that the survival of the fittest is the ultimate notion. Thus it is considered that a criminal coming in the public and getting ruthless shooting in discriminatory and mercilessly killing the innocent inhabitants in the society is seldom punished by the court of justice. He is evading his arrest and in case if he is being arrested, he may be bailed out easily and even in case of conviction, he shall rarely be confined in the four corner of the jail premises. This is the law of our nation. Let us examine the aspect of putting a poor farmer inside the lockup for the reason that due to the natural calamity and ecological misbalance, he could not ripe the harvest in the season and therefore was unable to repay the loan which he had taken for the improvement of the land. It is well known that the state government is the absolute owner of the entire agriculture land and the farmer has got only the cultivators right and if something is done for the improvement of such land, how the poor farmer can be kept in confinement. There is only one reason that in the country of “Daridranaryan“, the poor person is subjected to suffer the atrocities of the superior person but the rich people are above the law. One should not tolerate the injustice committed by the wrong doer over the innocent person as it is generally understood that the robbers usually rob the rich person while the government robs the poor people and leave the rich people beyond the clutches of law enforcement machinery. There is another aspect of the picture that a bread earner, who is knocked by a fast moving vehicle, may get some compensation from the insurance company or from the owner of the vehicle under vicarious liability but if the person is stabbed inside his abdomen by the assailant, there is no compensation given to the victim. In case of death out of onslaught by some criminal, there is neither the punishment for the crime nor the compensation to the family of the victim citizen. How the government can claim to be the representative of the people ? What is the justification of saying that it is “We, the people” who are said to be the government ? Can a country may survive in such a type of anomalies and undisciplined atmosphere ? “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 criminals 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.” “ All the persons in that court are dead, as it were, and none of them is alive, where justice is killed by inequity and truth by falsehood in presence of its courtiers.” “ Justice destroyed, destroys, its destroyer; and justice preserved, preserves its preserver. Hence never destroy justice, lest being destroyed, it should destroy the destroyer of justice.” “ The learned regard him to be base caste who violates justice which gives all wealth and showers all blessings. Therefor no man should ever destroy justice.” “ 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 company of justice is never cut off.” Thus when injustice is done in the government and the Hon’ble Court due to inadvertent do not dart injustice and may attribute some partiality with underrepresented poor citizen and protect the criminal or doer of injustice, there may not be such deserving respect and it may circumvent the law with all inequity. Such a situation is alarming in the nation as the law which is regarded to make the citizen free from all side of encroachment, has itself is making the people enslave. Let a situation be derived by breaking the chain which is providing restriction to fight against the injustice. Although it is an iron curtain, but still one cannot blot all such hopes, as the hopes belong to a future. A single day light may shallow the darkness from our country. Constitutional Resurrection There is one thing stronger than all the armies in the world and that is an idea whose time has come . Ideas are in truth ,forces .Infinite too is the power of personality .A union of the true always make history . The voice of the intelligence is soft and weak ,said Freud .It is drowned out by roar of fear .It is ignored by voice of desire . It is contradicted by voice of shame. It is hissed away by hate and extinguished by anger .Most of all is it is silenced by ignorance. “ Great things are done when men and mountains meet ,this is not done just by jostling in the street” William Blake.
Our constitution with its gospel to achieve and resolve the glorified socialistic sovereign democratic republic through the processor of therapeutic justice to escalating psychosomatic maladies and explosive rights with enforceable duties to the citizen is regenerating the spiralling professional delinquencies .It promises to keep and mile to go to its citizen ,before they may undertake the sleep. The Quest of mankind is to grasp the fundamental truth ,the tenacity without even the least touch of faith in reality has diminished the entire surrounding and undergone a radical transformation to the point of extinction. This is the political freedom ,the self independence, what the India has achieved after attaining the freedom from British domination . The structure of the society rests on the foundation .We cannot escape the consequences of losing all access to abrader a vision It creates a narrow-mindedness in the prospects of a development .Few amongst the citizen ,the masses have the ever given any serious consideration to the problem of life. Thus the problem of life still remain unsolved. Let us discuss that why are not having the solid foundations without access for the broader vision having an extinction for our existence. Freedom from bondage is liberation there is a goal of life with and devotion. Our tryst with destiny has not brought any desired changes for wiping out t he tears from every eye .There cannot any political will amongst the individuals who are craving to get power. The Political will is guided by our constitution of India and we find that it is not having strong hold to keep the nation intact ,the society move and the country prosper .Some radical changes are needed to maintain country’s unity and integrity .The prosperity of the citizen do not lies in the form of government, chosen by them but in the accountability and the stability in its precepts and practice . There is no representative Govt. but an equation of inducting themselves as the representative of the to form there govt. It is only the constitution which may provide a device to ensure a degree of self assessment .We want more stability and lesser responsibility upon these representatives chosen from amongst the people by the appropriate amendment in our constitution .There should be periodical assessment of the responsibility of executives .The present constitution is the reproduction of the Govt. of India Act,1935 and the combination of ideals of western liberal democracy nurtured to achieve the goal of our constitutional aspiration . The federal system is based on decentralisation and it is a system evolved of the governance of heterogeneous , diverse and plural society in a small country to have been based on the representative Govt. and not on the basis of indirect representation through parliamentarian democratic system .It leads to instability we should take notice ofd the expectations of the people who fought the battle of independence by adopting the policy of self realisation as being professed by our father of nation. Our constitution is based on the assumption of the authority where the entrustment of power is imposed by having the restriction upon the excessive power. Let us accept that it was weakness of the character of our citizens that Indian dominion has to live under the British sovereignty and we had to fight a struggle for attaining the freedom. The need for imposing the restrictions are required to be done to keep the society intact from adjuring violence ,dealing with corrupt politicians and to control over burden some disastrous consequences .Let us examine how to fight against criminalisation, black-marketing ,essential service maintenance and law & order situation .There is a lake of political will in those are actively participating in service tom the nation ,they are being subjected to oppression and harassment .There is no place for benevolent honest citizen and those who are dishonest opportunist with a criminal background are seldom being respected by our citizens . The genesis of the character is based on the falsehood and in such circumstances until and unless accountability of the individual in public life is not fixed upon the representatives of the Govt. there is no hope for the revival of the nation . A constitution is the basic law ,the highest state craft entrusted to keep the ideals and inspired the Nation. It is the exponent of the ideals with pragmatic approach having sensitive awareness articulated in the feeling of fellow citizens. The constitution becomes supreme importance as it reciprocates with the wisdom and sanctity of the founder of the nation ,the vision and foresight of its maker and to govern the people with discontentment depending upon the happiness and well being of the successive generation as being gathered by enthusiastic approach whole drafting the same .The vehicle is now come to a stand still and the horse is now riding over the cart instead of pulling the same for the advancement of nation. The presidential form of Govt is to avoid the decentralising tendencies and to re-enforce centralising evaluation of the governance of the people in heterogeneous ,diverse and plural society inhabiting through the vast land and lastly to avoid the head on collision between head of state and head of Govt. in down capacity. The tradition of party system is like a mushroom growth with no defined policy or ideology has been destructive because of its origin in the upsurge against the imperial rule and asserting the independence was not real without making people educate in running the administration .The growth of country the depends by taking care of the poverty prevailing and to ensure stability to some meaningful reform .The presidential form of Govt. offers the best solutions to the problems created by the chaotic spectrum of the splinter parties projected on the national scene in order to bring the stability and the progress which is caused by the growth of descendants and groupies in the parliament and thereby having a great danger to the integrity of the nation .The consequential change in the constitutional change in the constitution of India is appropriate on account of electoral defection mid term polls and coalitions bargaining and to arrest the disproportionate growth of infra-structure to provide a stable Govt. equipped to absorb the shocks of the progress policies .The political climate of authoritarian emanating has provided a sustain jeopardise to our basic constitutional ideals in pursuit of gaining power by making the social justice ,harmonious co-ordination and national integration to an utopian umpire .
The realisation of the God by introspection is by learning truth ,justice and benevolence by having the characteristics of patience ,forgiveness, self denial ,honesty, purity mastery over the sensibleness, knowledge, veracity and the cheerfulness .To surrender thyself to the self in the process of disintegration is to provide unity factor against Gherao’ s , the tactics providing nuisance or dedication to the cause of nation .There must be the power of will for expansion and the fear has to be vanished by getting will to do is self imposed rigor of duty .It is the outcome of parliamentarian democracy that poverty is acting like the disease of the skin of the nation while the disintegration and hatred amongst the fellow citizen is like the cancer of the liver .We should ride a horse bridled, but not lose as to trample upon us. The starving realities leads to the economic slavery and the insurmountable foreign debts are the signs of future slavery of our country. The non-violent persuasive method of enforcing the will of the people have adversely affected social and economic administration in the country .India has reached to a stage of political stability . The employment avence are being reduced causing an adverse effect on the social order .The political aspect of the situation vulnerable to the aspirants, opportunists in India is disintegrating tendency, which is a gradual the process of further aim to provide political ideological immortality amongst the political leaders and it has become a more struggle for the power ,then adherence to duty to serve the people, the political disintegrating tendency cannot be checked by the parliamentarian democratic set-up which may ultimately lead to social instability and the people may start seeking salvation of such psychological maladjustment against the social concept of the society . Thus there is need for amendment of our constitution as the road to inflation , increasing prices lowering in the value of money entering the common standard of living of man . Economical dissatisfaction being susceptible may be reduced to the margin and the anti national activities may be curbed down and the people may not resort to dishonesty corruption , deception by hitting at the route of social structure .the economical slavery is meant to surrenders freedom to foreign power . India’s foreign debt is directly proportionate to the value of rupees in comparison to foreign currency . The devaluation in the value of the rupee has made loan liability by constant increase in the foreign exchange liability and to estimate the Indian foreign debt which was more than four thousand crores in 1966 has been multiplied due to the devaluation of the value of rupee by making an increase to 48.43 crores within a decade and now the fear of foreign power domination is paramount which may ultimately lead to social slavery .People of India desirous of revival society require a suitable system for the creation of such a spirit ,which may be devised for practical implementation of our country. The moment the socio and economic problems are solved we will able to stand on our own feet for making the nation stronger .The role of sovereign people is distinguishable from the sovereignty from the parliament . In the recent years the will of the people is represented by the right of representatives associated in the majority which is giving place to the more plebiscite system , thus the political party even with a clear majority require s the direct endorsement of the people which is not possible in the representative Govt. This aspect has its importance by looking into the relevant extract from the constitution of USA, FRANCE, IRELAND, SWITZERLAND, ARGENTINA, BRAZIL, COSTARICA, MEXICO, URAGUAY AND VENEZULA having the presidential form of Govt. We have Srilanka, Philippines, Indonesia , and the latest South Africa where this system prevails . Law and life are integral , therefore the sensitive legal control through constitutional process is pragmatic of the power for the responsible Govt. under democracy . The constitutional law is symbolic for commanding compliance be patiently corrective to gain credibility and confidence. Thus the constitution is not an omnipotent sacrosanct instrument ,but it is political legal document fundamental in character and value based regulatory measurement to strike between the need of people and the power process. Thus the constitution is not an omnipotent instrument , but it is political legal document fundamental in character and value based regulatory measurement to strike between the need of people and the power process. Thus the vigilant intellectuals with the constructive attitude and analytical criticism may persuade the people for the corrective and practical angles to be emerged for a better perception by the periodical constitution review and reforms .This is a dynamic approach for constructive politics . The hypocrisy of the constitutional immutability by having the crutches of Anglo- Saxon Jurisprudence as an instrument of status Quo through resisting radical innovation in the use of constitutional power set up in the light of socio-economic policy to the aspirations of the liberated people of our nation .The basic structure of our constitution as ‘Rule of law ‘ separation of power independence of judiciary ,uncertainty in law with the power of judicial review are the basic and essential feature of constitution . The Indian judiciary is the guardian and protector of the rights and the liberty of people of India since the constitution is regarded to be the supreme of all the institutions whether legislative ,executive ,and judiciary has to function under it in strict compliance of its provisions and as such the needs form its review as to achieve a just social order is required to play a decisive role in the quest for social justice .There is the need of expansion of the doctrine of locus standi and involvement of the experts and voluntary organisations in judicial fact finding process, accountability of the people in power and democratisation of the remedies available to them. We have to take the recourse the new strategies new tools and new remedies to serve the goal of delivering the social justice which may penetrate to the cause of poverty and exploitation and demolish them by reorganising social ,economic and political relations .The democratisation of judicial remedy as professed by Justice Bhagwati requires the enforcement of fundamental rights in relation to the benevolent citizens as to enforce the new remedies for their effective enforcement and for that purpose we have to renounce these rights by dominant esteem of judicial creativity ,through enforceable fundamental duty to
maintain basic harmony of the constitution. Millions of the people of India belonging to deprived and vulnerable sections of the humanity are looking it the constitution for improving their life conditions as to make basic human rights more meaningful and enforceable unfortunately the preamble of our constitution being the signature time for providing social and economic justice has not yet been drafted as to provide the corrective process of executive errors removing the quality and characteristics of political authority and to provide a curve over excessively political governance which tends to destroy the delicate balance by the separation of power between its three basic institutions. We find that 1% of wealthy people are having the control over 20%of urban wealth and 4%of top ,41%of the urban wealth as the sheer magnitude of the problem by demarcation between the dishonest opportunist and the benevolent innocent and until the suitable restrictions are not being enforced. There can not be the democratisation of judicial remedies. The concept of crime in its socio-legal essence is in the contradictions of social development .Thus the social prevention of the offences is required to aim in a society free from exploitation of man by another man .This is required for economical potential which will lead from each according to his need ‘by strengthening law and order .We may ensure consolidating civil discipline as the decisive factor of unsuccessful construction .Criminal as being self contained are not isolated form the society and creates problems of social consciousness and as such change the basic concept of directional proposition on its mobile nature to the phenomenon of reality in respect of the enforceable duties castled upon them. The approach is an essential condition for revealing an identification of the activities relating to the essence of crime .Crime is a social phenomenon dealing with the global problem but its identification with the individual connected with the criminal activities depend upon the different approach relating to the disciplinary measurements and the degree of independence from the society. Any act is forbidden by law is an offence ,it is an unlawful act , a breach of law ,the classification has further laid down the responsibility of such wrong doer as a criminal offence ,civil administrative financial and other economical offence. In assessment of its ingredients with infringement ,the form of anti social behaviour in accordance with its degree of guilt has to be taken into consideration as affecting to the socio-economic and legal concept for the various social aspects can a criminal having anti social behaviour with the emergence of individual negative qualities having no responsibility and control over anti social phenomenon presupposes an appropriate judicial qualification for the enforcement of his fundamental right. This will distort the picture for prevention of the crime became it affects human destiny and provide an attack over moral fabric of the society. A socially dangerous act is more dangerous than an individual act towards the objective aspect to concrete omission which constitutes the corpus deliecti to regulate human behaviour. Thus the fundamental rights which are considered to be invalidated for implementing the directive principles of the state policy by introduction of Article 31-a,31-b and 31-c removing to some extent the veto of Article 13 as being upheld in Keshvanand Bharti case should necessarily be restricted in respect of its enforceability in favour of anti social criminals protection as a part enforceable fundamental duties of others. After the 42nd amendment Article 32-C was further amended by making the fundamental right s conferred by Article 14 and 15 to the directive principles by giving prianacy over fundamental rights may not be coming in the way as regarded violative of the basic structure of the constitution in Minoura Mills case . The recent judgement of seven judges of the Hon’ble Supreme court has upheld in L.Chandra Kumar case (1997 (3) S.C.C 261) Although the constitutional maker have enshrined the expression ‘procedure established by law ‘ in determining the criteria whether the procedure is reasonable to the content of the enacted law but the supreme court by introduction of the doctrine of reasonableness transparency and the principles of proportionality apart from having the concept of natural justice embodied under Article 14 has virtually introduced in the expression due process of law in Article 21 of our constitution ;then why not such ideal laws enunciated in the opinion of the court may not be introduced as the measurement of legal duties and responsibilities in the life of legal philosophy for the ethical constant consistent with its frame work for a attending the ultimate set of social condition. The morality of the law in the pre condition for the advancement of social set-up in the society .The end of all political association is the conservation of the natural rights of the man. Thus the rights to rebellion against the dictatorial existing structure of our constitution provides for orderly and peaceful change , which is pertinent in this context .The next question as to be dealt with regarding imposition of the restriction through the power of the parliament to modify the rights of the members of the armed forces in respect of the restrictions abrogation under the garb of ensuring the proper discipline of duties has to be read in respect of the enforceability of such rights of the anti social elements who is providing disintegration, disassociation and disco-ordination amongst the citizens and whether such discipline is not required for the governance of the nation and prosperity of the people as that of those who are assigned for the protection of the unity and integrity of the nation they are being curtailed such fundamental rights while those who are indulged in the anti national activities are getting protection through our constitution .Constitution must correspond to definite social relation and the stage of social development according to changing norms and value of the society .There must be substantial change in the static and invariable constitutional classes as there is need for its renovation. The constitution must replace by the new provisions reflecting the change conditions and the needs. Duty to uphold and protect the unity and integrity of the nation as to render national resources and to
promote harmony against its citizen and to abjure the violence to rise with higher levels of endeavour and achievement must be enshrined in the preamble of the constitution of India. The preamble is the part of the constitution . There is the duty for preventing exploitation of one individual by other individual . ‘ Socialism is based on each according to his ability to each according to the work ‘ There is no constraint responsiveness of the public opinion so that administration may be increasingly diverse and meaningful .Democracy is not a slogan ,but rather striving to raise the level of social justice to the individual. Socialism is something different from social justice. It is not the privilege orientation to some individual ,but requires potential for upliftment of the society at large. Slogan do not solve the problem. The ornamental democratic norms set-up by some individual consisting of a body of 292 people representing the different constituent assemblies cannot fulfil the ideals and aspirations of an individual citizen till there may not be enforceable duty governing to others fundamental right in the pursuit to govern ,advance and prosperous nation. The potential resources of our country are not vested in the privilege to its legislature ,but requires to be invested to strengthen the ideological front based on the principle of equal opportunity and popular sovereignty .The social order is essentially a system of class relating. The doctrinaire approach to the problem of socialism and pragmatic view provided to enable the courts to learn more and more in favour of nationalisation and state ownership,but unfortunately the same has resulted into our 240 public sectors governed by the central Govt. and 740 public sectors being owned by state Govt. as money guzzles and the black whole in the economy of the nation. Let we should also have some enforceable duty upon the propagator of the theory of socialism through representation to their leaders as the economic justice would mean the development of more productive economy and stability to eliminate the disparity in the economic status Every legal system is required for a living society and thus our constitution must be alive .It is not merely the imprisonment of the past but it is also the unfolding of the future. It demands the most flexible and imaginative adjustment for harmonising the national and the social interest .It is a dynamic process in the function of the state craft . Thus the constitution cannot be applied in disregard of the external circumstances. The significance is vital , not formal ; it is to be gathered not simply by taking the words from the dictionary , but by considering its origin and its utility .A constitution is the principles for an expending future. The judicial approach should be dynamic rather than static pragmatic and not pedantic and elastic rather than rigid . The courts instead of ascertaining the intent may now provide some meaning to the constitutional clause by adopting ‘Due process of law’ and the attempt should have been made for maintaining a delicate balance in between the due process and procedure established under the law .The court while acting as sentinel on the quivive to protect fundamental right and the larger and broader interest of society. In India the majority is not a political majority . The majority is born ; it is not made .This is the difference between a communal majority and political majority and one should destroy it .Until and unless this thing is not been done by the adequate safeguard provided to our constitution, the oligarchic approach of our guardian ,the so called representative by the process of the election that “Damn your safeguards ,we do not want to be ruled by you “, who are these people there must be the much exposure to such people who are sceptical to public opinion and are only interested to keep on the system based on no assessment of the responsibility through the periodical assessment of the election by the communal majority in our parliamentarian system of democracy . The intelligentsia of country feels that our electoral system and parliamentary form of the Govt. are responsible to great extent to the political instability. Dissension , self interest ,moral degradation and political conflict are spreading like a wild fire. The problem of bread and butter is accude but we proudly claim that our country is progressing towards the materialism which is destined to fall soon . The demeaned duties are accomplished by the human being of high calibre and not by the representatives of communal majority under the garb of their so called socialism. The time is ripen for its final phase . It is becoming chronic to maintain country’s integrity and unity . Some radical changes are needed to maintain country’s prosperity , integrity and unity of the Nation “Who never ate his bread in sorrow , Who never kept till midnight hours , Weeping & waiting for the morrow , He who knows ye not ,ye heavenly powers. .
Need for Enforceable “Fundamental Duties “in the Constitution -as Coexistence to National Solidarity India -A country having a constitution on which galaxy of fundamental rights to its citizens is now being ruled with governance through laissez faire , a policy with political set-up having co-ordination with divisive forces for economic social and national oppression of the people at large where about 50% of the population are still illiterate after 50 years of independence. The people are enjoying the fundamental right without any enforceable fundamental duties.
There are virtually no individual fundamental right except the right conferred under article 19 of the constitution of India , rest are the fundamental duties of the state which are likely to be enforced for the protection of its citizen. By the gradual advancement of the judicial activism , the basic fundamental duties embodied in our constitution, have now been regarded as enforceable rights of the citizen without taking into consideration as to whether the person , who is coming forward for seeking the enforcement of such duties by the state , may actually deserve for such enforcement under an equitable discretionary jurisdiction of the constitutional courts in India. This is a basic flow in the process of judicial verdict . There is the need that the impact and implementation of the law which is primarily concerned with a social science , may be able to achieve its objective the concept and the guarantees enshrined under article 14 having two connotation ,i.e equality before the law and the equal protection of the law are not the same phraseology, although they appears to serve a common objective to eradicate the social evils of inequalities and discrimination. Thus Article 14 has a pervasive potency and a versatile quality, equilitarian in its soul, but allergic to discriminatory dictates. It is well known that equality is anti-thesis to arbitrariness. Since the licence may not be given to a blind man to drive a car, how worthwhile it may be to give the similar licence to a criminal to do every sort of atrocities being committed by indulging into the crime of the innocent people. There are inherent restrictions applicable for the enforcement of the individual personal right under article 19, which empowers the state to enforce reasonable restriction on the exercise of the right of the people in the interest of sovereignty , integrity of India security of the state, friendly relations with foreign state , public order , decency or morality etc. including the incitement to an offence pertaining to the reasonable restrictions regarding freedom of speech and expression , to assemble ,to form associations and freedom to reside and move freely throughout the territory of India. By the constitution (first amendment ) Act 1951 ,there have been further restrictions to practice any profession , or to carry on any occupation, trade or business for professional or technical qualification as well as carrying on any occupation , trade or business by the state and its instrumentality to the exclusion , complete or partial , of citizens. Thus the question arises as to whether there may not be a valid test of classification based on qualities or characteristics necessarily coupled with the object of legislation based on intelligible differentia which has certain nexus with the realities of the time to dealt with the law and order situation by providing necessary restriction over the unchecked liberty granted to the individual detrimental to its integrity and sovereignty for prohibition to avail the benefit of equality clause by taking the rescue for forbid classification. . there cannot be any enforceable fundamental right to an individual for indulging in anti national activities .Thus the verdict given by the Hon’ble Supreme Court in Minerva Mills limited Vs union of India (1980 3 SCC 625 is required to be reviewed for effective enforcement of the duties caste upon the citizen by passing through the test of “Form and Object” and “Pith and Substance” to mould and replace by the test of “Direct and Inevitable” effect. The farmer of constitution have miserably forgotten the basic and elementary principles of jurisprudence and legal theory ;that “every night implies the forbearance on the part of others to perform his duty . Every right is correlated and coexistent with duty “The preamble of our constitution was not having the boosting prospects to its citizen of our constitution was not having the boosting prospects to its citizens for resolving India as “Sovereign democratic republic and for endeavour the unity of nation till 3rd January 1977. These fundamental duties ten in number touch almost all important aspects of National life of an individual life of an individual as well as nation . These are true Magna Carta by adopting an adhering to which in our life . We can achieve the objective of an egalitarian society ,free from corruption ,oppression , favouritism and nepotism . Each of these duties , when decoded and dilated , will go to encompass , the various facet of human activity and behaviour ; a remedy to most evils plaguing our society -an educational institution ; a public undertaking etc. The present day crisis is the result of the phenomenon where tried to achieve right while forgetting corresponding duties as reciprocal to fundamental rights . We may get rid of the despotic and corrupt tendencies of authority in politics and administration having pressure groups ever hungry and lustful for privilege and power. The chapter of fundamental duties in part (IV A under article 51 A has been introduced by our constitution (Forty second amendment )Act ,1976(w.e.f 3.1.1977). The insertion of new Article 31C i.e. saving of laws giving effect to certain directive principles , notwithstanding anything contained in the article 13 , no law giving effect the policy of state towards securing the principles laid down in part IV shall be deemed to be void on the ground that it is in consistent with or takes away or abridge any of the right conferred under the Article 14 &19 of the constitution. The Supreme Court of Mineva Mills Ltd. Vs Union of India (1980) 3 S.C.C page 625 has laid down the same as unconstitutional holding “that it virtually tears away the hearts of basic fundamental freedom without which a free democracy is impossible . This is a charter of class legislation”. The Article 31 D pertaining to “ saving of the law in respect of anti-national Activities” has already been omitted by the constitution (Forty third amendment )Act 1977 w.e.f 13.4.1978. The other Article 39(f) providing “Protection to children” by giving them opportunities and facilities in healthy manner and in conditions of freedom & dignity and that childhood and youth are protected against moral and material abandonment” has been inserted w.e.f. 3.1.1977. Equal justice and free legal aid for securing justice to economically weaker classes and other disable down trodden citizens under Article 39 A is on account of 42 nd constitutional amendment . The participation o workers in the management of industries and protection and improvement of Environment and safeguarding of the forest in wild life under Article 43 A and 48 A respectively have also been inserted by virtue of 42nd constitutional
amendment,Act,1977 . We could not achieve to cherish the goal enshrined under Article 44 providing uniform civil court for the citizens, Thus till the situation has not become alarming and the Govt . was not compelled to impose the emergency, the farmer of the constitution have neither given any heed for the insertion of the chapter of fundamental duties and directive policies for the uplift of the poor worker ,children and other disabled person . It is certainly a matter of grade disappointment that till date these fundamental duties and directive principles of state policy have still not been enforce as that of the fundamental rights of the citizens ,The country may be ruled down by functioning anarchy and oligarchy , but the prosperity ,integrity and solidarity ofd the nation is impossible without the enforcement of the duties assigned to its citizens. Constitution (Forty Fourth amendment )Act,1978 has provided another directive principle under Article 38(1)&(2) that the state shall strive to promote the welfare of the people by securing and protecting a social order and to strive to minimise inequalities in income and endeavour to eliminate inequalities in status facilities and opportunities not only amongst individuals , but also amongst groups engaged in different vocations. How much reconciliation in practical implication of the ideals promulgated through the aforesaid directive principle of state policy may be seen by a simple instance that ion the state of Uttar Pradesh according to the minister of Parliamentarian affairs Mr. Barkhoo Ram Verma , the state government was spending Rs 1,11,96,000/- per month on the Zplus security of few persons .This is a single point formula of our politician , the custodian of the public trustee that now motivated for casting the vote bank in their favour. These directive principles for welfare of the people and protecting social order to minimise inequalities in status and opportunity may be good enough for theoretical purpose , but their enforcement is still a utopian empire to achieve in our so called welfare of the state. Law must be change according to changing circumstance is a means to an end . Law is only a part of human conduct and its character is its purpose . Law is required to govern the society . Its purpose is its essential mark . The purpose is to protect the interest of the society . The social impulses are the seldom to accord the selfish interest. When the selfish interest clashes with social purposes it has to be suppressed through Iron hand . Law is meant for our mean which is a social control , otherwise it will be lawless society. Every man is under legal obligations to impact certain duties which are coexistent for social solidarity , otherwise the idea of sovereignty is meaningless . Thus the essences of law is duty , not only rights to its citizens. All the rights guaranteed in our constitution can very well be safeguarded and enforced automatically if there are mandatory obligation caste upon the state and its citizens to endeavour , respect and obey certain fundamental duties. The reality is not in securing the rights , but to discharge certain duties by its citizens, if the property of the Nation is required by its citizens. Professor Laski says “Govt . by the judges would logically ,under is system be a final safeguard ,insurrection apart ,of the rule of law .Judges also may have their prejudices and limitations and that may lead to judicial despotism. The centre of legal solidarity lies not in legislation , nor in jurist’s science , nor in jurist’s decision ,but in society itself”. The first requirement of judiciary that it should correspond with actual feeling and demand of the life . Unfortunately we are still upholding the traditions of Anglo Saxon jurisprudence and resisting radical innovation in the use of judicial power to promote social justice under our constitution. Justice which has always been the first virtue of any civilised society is still required to be traced down the beating the sticks over the impressions left behind by passing through a snake of alien power ruling over the nation . Such traditions having the glimpse of slavery was least concerned with the relief to the litigants but continued to perform the deception by making the litigant as specimen in the process of advancement of the judicial system .There are conflicting decisions which were subsequently overruled but by that time the cause of the litigant was decided on the wrong precedents. We , the advocate could not even having the gut to renounce our black coat , which is reciprocal to the drudgery and a painful reminder of the traditions maintained through our slave mentality in the extremely warm environmental conditions of our country .We could not utilise our mother tongue in the process of legal , medical and technical science as the translation to the language of understanding to our citizen is still a task assigned to the future , But sill we can demonstrate with pride our solidarity to the mother tongue . The religion which is required to be adopted for maintaining a social condition is no more serving its objective and utility to the nation as the norms of our society have already been extinguished by our non productive activities and thus we can never give the prosperity , integrity and solidarity top our nation. Every one should now require to act in such a manner that we may be able to coexist with perfection of general condition by endeavouring the good wishes and brotherhood with freedom - a sum of total condition. This is required to elevate our character , integrity and solidarity to the product of human resources and thereby the growth of personality , only then the nation may survive from a complete disaster. Review of Constitution A body of 292 people representing the different constituent in the representative capacity can hardly believe that their voice was the voice of people .The ideals and aspirations which has given courage and inspiration for struggle during the British regime has been resultant for the enforceability of fundamental rights without enforceable fundamental duty ,which remains absent upto 3.1.1977 till Article 51-A was inserted in our constitution .The sentinel and custodian of public interest have completely forbidden that our constitution has must correspond to definite social relations for
development of the country. The Constitutional provisions should adhere to the changing norms and values of the society ,as such there was need for retrospection and renovation. The society is surging forward to fulfil those ideals on which the country may progress. Duty to uphold and protect unity and integrity of our nation and to render national service to promote harmony and to abjure violence to rise with higher level of endeavour and achievement should be the primary consideration to built up a nation. These duties include preventing exploitation and and the monarchy by the ruler. Each according to his ability must be rewarded and assigned with the responsibility of work Democracy is not a mere slogan. Democratic values be confirm by the people. The concept of socialism is based on social justice where the “right to work” is an essential feature .Our constitution has become static achieve such changing norms. The president should be assigned with arduous task of combining the ceremonial office of the head of the state with political head of the executive as the legislature ought to be trusted not be make bad laws. Essence of common brotherhood amongst all Indian is the principle, which may give unity and solidarity to the social life. Slogan do not solve the problem .The segmentation on the basis of caste and religionist are anti national .Agreement on the essence of the principle had broken down on each ideological front in our country. The ideological may lead to dictatorship form of government as the opportunist in the politics may preach well for popular sovereignty .The representative Govt. under the garb of conscious element imposes their vested political decision guided and emanated with the centralised organisation to the party leadership .This ultimately result in a special kind of representative Govt. where the political forces dominate the state. The social order is essentially a system of class relating . The equality of all citizens is now replaced by division into leaders. It deduces the idea of man’s dignity and freedom, the task of ensuring justice and existence of harmonious relation amongst the citizens. Economic justice would mean the development of more productive economy which may lift the Indian people from extreme poverty to a level of living closer to the citizen of developed countries. Socialistic pattern of the society means that the extreme of the wealth would be reduced and the centres of the private power would be eliminated. Justice Frank Rurter said “Every legal system for a living society even when embodied in a written constitution must itself be alive .It is not merely the imprisonment of the past ,it is also the unfolding of the future .A federal is most complicated and sublet .It demands the most flexible and imaginative adjustment for harmonising national and local interest. A dynamic process having its application to a function of statecraft. The Constitution cannot be applied in disregard of the external circumstances in which men live and move aimed have their being. Justice Homles said ‘the provisions of the constitution are not the mathematical formulas having their essence in their form ; they are organic living institution. The significance is vital, not formal ; it is to be gathered not simply by taking words from a dictionary , but by considering their origin and the line of their growth .Justice Cardozo said ‘A constitution is the principle for an expanding future’ The courts instead of ascertaining the intent which these men voice with respect to the meaning of a constitutional clause in their own way , attempt to determine the intent which these men would presumably have held ,had they foreseen what our present condition would be. The judicial approach should be dynamic rather than static , pragmatic and not pedantic and elastic rather than resist. It must take into consideration the changing trends of economic thought the temper of time and the living aspirations and feeling of the people. The court while acting as sentinel on the qui-vive to protect the fundamental rights must try to strike a just an balance between the fundamental rights and the larger and broader interests of the society , so that when such a right clashes with the larger interest of the country, It must heeled to the later. (Pathumand vs State of Kerala A.I.R 1978 S.C page 771) In India the majority is not a political majority . There is difference between communal majority and a political majority . A political majority is not fixed , but it is the majority based on conscience while the communal majority a permanent majority fixed in the attitude .One can destroy it ,but he cannot transform it. The politicians have objections to the political majority in these words. “DAMN YOUR SAVE GUARDS , WE DO NOT WANT TO BE RULED BY YOU” The immunity granted to the M.P’s under clause (2) of Article 105 and to the members of the legislative assembly under article 194 (2)of the Constitution of India that they shall not be liable to any proceeding in any court in respect of ‘ANYTHING SAID’ or ‘ANY VOTE GIVEN’ is providing protection for entering into conspiracy for bribery and to commit the offence of violence for which these representative claims to exercise the privilege for a charter for corruption. Since they are public servants and there is no authority to remove an M.P. from his office in absence of such authority competent to remove and to grant sanction under section 19(1) of prevention of corruption act , 1988. The prosecuting agency dealing with JMM bribery case in respect of the offences under section 7, 10,11, 13and 15 shall obtain permission of chairman of Rajya Sabha /speaker of Lok Sabha and if they are not found competent authority to remove them , the president of India under Article 103 is not competent to remove a M.P. from his office and thus in absence of requirement of initiating proceedings in the court of the law , no prosecution under these provisions may be taken against M.P under Prevention of Corruption Act. P.V. Narsimha Rao vs State (CBI/SPE)(1998)4 SCC page 626)Similarly the designated court of Sri V.B Gupta Special Judge conducting the trial of politicians involved in Hawala scam has acquitted all the accused persons as the evidence Act does not recognise a document written in code words as admissible in evidence. This is pragmatic
approach where the justice is dependent upon rigmarole of technicalities and our profest socialistic ,secularists ,democratic parliamentarian set-up of our country. Justice Y. Venkatachalam observed “If such acts and conducts on the part of Jaya Lalitha are allowed to continue , it will not only create indelible stigma on the system of flourishing democracy, but will also bombard the entire economic structure of our country” Erosion of credibility of judiciary in public mind may be the greatest threat to the independence of the judiciary. Eternal vigilance by the judge to safe guard against any such latent internal danger is therefore necessary lest we may suffer from self inflicted mortal wounds. Authenticity of judicial process rest on public confidence and public confidence rest of legitimacy of judicial process. Sources of the legitimacy is distinguished from subjective moods. Predilections emotions and prejudices. Ultimately the judges have to suffer the consequences ofd injustice . In Indramani and others vs Mitheshwari Prasad and others reported in J.T 1996 (9) S.C page 135. The Hon’ble Supreme Court after recording regrettable circumstances has deprecate certain behaviour undermining judicial discipline of our Hon’ble court while in state of Rajasthan vs Prakash Chandra (1998) 1 S.C.C Page1 , the Hon’ble Supreme court has again depredated the lake of judicial restraint and abuse of judicial authority by disparaging and derogatory remarks by insinuation through reckless and irresponsibly discipline against judicial flavour and judicious propriety of puisne Judge of Rajasthan High Court. Still the judicial process cannot be abused to perpetuate such illegalities for which a totalitarian regime having dangerous consequences regarding rule of conduct has to be vanished. Mr. L.K. Advani said in the legal aid orientation ; Indian judiciary instead of being solution has become a problem itself , while Jethamalani in another context has observed that the judges at the highest level were involved in lesser pursuit of propping unworthy appointment of bench while Mr. Mulayam Singh expressed that there should be adequate representation of judges on the caste basis. Whether this is pragmatic approach into the matter which is based on the great ideals to our super entrepreneurial spirit of cultural heritage and intellectual potential ? The virtue of humanity in the judges and a constraint awareness and investment of power in them is meant for use in public interest and to uphold the majesty of rule of law , which would to large extent ensure self restraint in discharge of judicial and our constitution of India. Justice is virtue “Here is not to make reply; Here is not to reason why; Here is only do and die.” Sun flower Whether thy strength been confined, Which was accumulated through out the night; Yours scorching heat and it’s stroke, Was faced by “Brave flower” during daytime; Imagine thy the extend of severe pain, You gave to him by rising from the east, “o” sun; By making the attack from the backside, An attempt to deceive likes a cowardice friend, But still then such excessive below, Could not burnt the patels of thy delicate flower, Who may visualized thy pain “o” sunflower; Life struggle Defeating me in thy race of life, You were feeling much happy; But when you proceeded a little further, You found many ahead of yours; Then you started waiting for me, As I may conquer you once again; But I always remaining standstill, Got thy people running and running; To an unknown path leading no where, Seldom trailing in thy everlasting race; Realizing sadness and happiness at times, Now you started waiting lying beneath the tree; In expectations as I started conquering you, But I remained myself standstill and calm; While instigated other for getting up to run, Thereafter given them an everlasting sleep; Now by retreating back from the beginning, You may realize the truth and identify me;
journey of life Passengers travelling inside the Bus, Children perturbed, young disturbed; But the old people are waiting, In order to reach their destination; Children are seeing those vehicles, Which have been punctured on its routes; Watching them changing their wheel, Laughing and enjoying innocently like a fool; Younger is busy in searching individuals, Carrying the worry identical to their own; But the old people are waiting hopelessly, In order to get the completion of their journey; Starting point I got my object of life at the same point, Where I have given up the same; In the same passage of darkness, Which are still containing inside my memories; I instigated the other to make a search, To know the substance of their life; In brightness amongst the gospel truth, But ultimately I got it in the droplet of water; Upon the cheeks of the labour, hard work and struggle, In the rising sun and midst of the steam of river; The glass of water I am a pot made up of glass, Which has got its own identity; Different from many other person, who are not visualized from their out side; I seldom filled up with a cup of the milk, Sometimes with the juice of the fruits; Seldom with the wine inside there, But my contents never affected me There are many other pots outside there, I do not know the contents thereof; Neither the quantity, nor the quality of them, Often I tried to hide my contents; I found myself completely helpless, As I am the glass of water with an object of life; An Introspection from the Inceptions in Memory of Childhood 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 Advocates The plights of such advocates are remarkable in respect to their struggle, for which nobody is 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 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 adjudicatory 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. 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 ion 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 honourable 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 seemless 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 adjudicatory 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”. INDIAN LEGAL HISTORY AND IT’S IMPACT ON CONSTITUTION The legal history pertaining to exercise of the power in India starts from the time of 1773 when the British parliament passed the Regulating Act which be came an important mile stone in the constitutional history of India. The Regulating Act set up a government of Bengal consisting of a governor-general and four Councillors in whom was vested the whole civil and military Government of the Presidency of Bengal and also the government and the territorial acquisitions and revenues in the kingdoms of Bengal, Bihar and Orissa. The Presidents and Councils of Bombay and Madras were to be subordinate to the Governor- General and Council who were made the supreme Government in India. The victory lord civil in the battle of plassey in 1757 laid down the foundations of the British empire and thereafter the year of 1765 has been considered to be a turning point in AngloIndian history providing the territorial sovereignty be the East India company. Since the regulating Act has provided the jurisdiction to set up a Supreme Court in Bengal, which was consisting of a Governor- General and four councillors vested with the power of civil and military Govt, the
jurisdiction conferred to the Supreme Court in Bengal was extended to all British subjects. Thus the power given to the Governor- General and his council to move and issue Rules, ordinance civil Govt. of the presidency of Bengal in 1781 there were many changes in regulating Act by issuance of Act of settlement and the same clarified that what law has to be administered by the Supreme Court. By the pits India Act, the Governor- General was vested with the power of superintendence, control and directions of the presidencies of Bengal, Bombay. Madras which were sub- ordinate to the GovernorGeneral but there was dual control of the committee of the secretary of England. Over- GovernorGeneral which continued up to 1850 when the Govt. of India was taken over by the British Govt. from the company. The charters Act, 1813, of the year of1833 and the year of1853 created a separate legislative council consisting of 12 members win of includes the Governor- General. The commander in Chief, four members of the council and six legislative members of whom two were English judges of Calcutta Supreme Court and four officials appointed by the local govt. of Madras, Bombay, Bengal and Agra. The Governor- General of India. The Govt of India Act, 1858 had abolished the power of the board of control and the court of direction which were transferred to the secretary of the state and his council consisting of 15 members, Thereafter the Indian councils Act in 1861, 1892 and in 1909 known as Minto Morley reform were introduced: creasing the members up to sixty for additional members of Governor- general council fifty members were for Madras, Bengal. U.P., Bombay, Bihar and Orissa while thirty members were from Punjab, Burma & Assam. Thus the imperial legislative council was to consist of 37 officials and 23 non- officials. Since the people were dissatisfied with the reform of 1909, Mr. Montagu the new secretary for the state of India made certain reforms for increasing association of Indians in self Govt. with a view to the progressive realisation of responsible Govt. in India as an integral past of British empire. However, the Govt. of India, Act, 1919 provided a great land mark in the constitutional development and the aforesaid Act set up a bicarmesal legislative consisting of two houses as council of state and control legislative Assembly with a life span of five years and there years respectively. This Act provided for two lists of subjects as to get uniformity in legislation was necessary and desirable. Thus the control list and provincial list were given while the residuary subjects were divided pet were control and provinces ultimately the Govt. of India Act- 1935 has provided the federal legislature which was consisting of federal Assembly and the council for the state. This Act provided for the establishment of the federal court of India with the jurisdiction over the provinces and the state consisting of a Chief justice and two puisne judges. However the last word regarding interpretation of the legislative within the spear reserved for them was to be said by the privy council sitting in London. The Indian Independence Act, 1947 provided that until a new constitution in framed, the Act made by the existing constituent Assembly, exercising all such powers which were formally exercised by control legislative were given additional power regarding the framing of new constitution. The constituent Assembly met on Dec. 9, 1946 and 4 Dec. 1946 Dr. Rajendra Prasad was elected as the permanent Chairman of the constituent Assembly. The constitution was adopted by the constituent Assembly on Nov. 26, 1949 and come in to force on Jan. 26, 1950. However a referendum which should have been held and the constitution should have been referred to the people of India for their approval was not been done. However it is said that the constitution should have it’s roots, it’s authority, its sovereignty from the people which has not been done. Thus prior to the coming in to force of the constitution, the High Court of Madras, Bombay and Calcutta had the power to issue certain prerogative writs will in their original civil jurisdiction prior to the amendment of 1963, the High Court were given power to issue a writ within its territorial jurisdiction but the power was conferred after the amendment of 1963 to empower the High Court for issuance of a writ in which a cause of action has arisla within its territorial jurisdiction even if the Govt. of the authority again whom the writ is issued is not within its territorial jurisdiction. OBJECTS AND SCOPE OF CONSTITUTION Democracy is impossible without the effective participation of citizens which involves the creation of certain conditions facilitating such participation. Civil education of citizens, leadership training and inculcation of morals and values in them are necessary for a sound democratic system. Different meanings have been given to the term ‘Republic’ by various writers. According to jellinek, a Republic is a Government not by a single person but by a collegial organisation more or less numerous. The view of Madison is that a Republic “is a government which derives its powers directly or indirectly from the great body of the people and is administered by persons holding their offices during pleasure, for limited period or during good behaviour. It is essential to such a government that it be derived from the great body of the society, not from any portion, or a favoured class”. According to Justice Cooley, “By the republican form of government is understood a government by representatives chosen by the people or community as an organised whole wield sovereign powers of Government and, on the othe(F) The preamble And our constitutional Safe Guards The preamble secures to all citizens social, economic and political justice. Social justice demands equality along with liberty. In a country like India, it is necessary that the state must try to improve the lot of the down-trodden and weaker sections of the people and provisions have been made in the constitution for that purpose. Economic justice is a corollary to social justice. It demands that there should be no discrimination between man and man on the basic of economic values. The very concept of economic justice demands a socialistic pattern of society. The ideal before the Indian
constitution is the establishment of a welfare state. Pandit Jawaharlal Nehru is said to have told the constitution, to feed the starving people and clothe the naked masses and to give every Indian fullest opportunity to his capacity”. Again, “I trust this constitution itself will lead to the real freedom that we have clamoured for and that freedom, in turn, will bring food to our starving peoples, clothing for them, housing for them and all manner of opportunities of progress.” The preamble emphasises the fact that it is the people of India who solemnly resolved to constitute India into a sovereign, socialist, secular and Democratic Republic and adopted, enacted and gave to themselves the constitution on November 26; 1949 for the realisation of the goals of justice, liberty, equality and fraternity as explained in the Preamble. As the authority of the Government of India is derived from all the people, no section of the people can challenge it. Nobody can assent that he is not bound by the authority of the state because he has not given consent to it. The fact is that his own will is included in the will of the state. No political party in India can challenge the authority of the state as the same is derived from the people. The constitution of India is not a gift of the British Parliament. It was given by the people of India assembled in the constituent Assembly to themselves. The constituent Assembly was competent to determine the political future of the country in any manner it liked and it declared the ultimate sovereignty of the people of India and the constitution of India rests on their authority. The term ‘socialism’ has been defined in shorter oxford dictionary as “a theory or policy of social organisation which advocates the ownership and control of the means of production, capital, land, property etc. by the community as a whole and their administration or distribution in the interests of all”. In excel wear v. Union of India AIR1979SC25, the Supreme Court held that the concept of socialist or a socialist state has undergone changes from time to time from country to country and from thinkers to thinkers, but some basic concept still holds the field. In the same judgement, Mr. Justice Untwalia quoted with approval the following passage from the judgement of the Supreme Court in Akadasi Padhan v. state of Orissa AIR 1963 SC 1047 where Mr. Justice Gajendragadkar had observed thus: “With the rise of the philosophy of socialism, the doctrine of Broadly speaking, this discussion discloses a difference in approach. To the justification is the general notion of social welfare. To the rationalist nationalisation or state ownership is a matter of expediency dominated by considerations of economic efficiency and increased output of production. This latter view supported nationalisation only when it appeared clear that state ownership would be more efficient, more economical and more productive. The former approach was not very much influenced by those considerations and treated it as a matter of principle that all important and nation- building industries should is pragmatic. The first proceeds on the general ground that all national wealth and means of producing it should come under national control, whilst the second supports nationalisation only on grounds of efficiency and increased output”. Mr. Justice Untwalia further observed that “the difference pointed out between the doctrinaire approach to the problem of socialism and the pragmatic one is very apt and may enable the courts to lean more and more in favour of nationalisation and state ownership of an industry after the addition of the word ‘socialist’ in the preamble of the constitution”. In D.S. Nakara v. Union of India, the Supreme Court held that the basic framework of socialism is to provide a decent standard of life to the working people, particularly security from cradle to the gravel. The object is to achieve economic equality and equitable distribution of income. This is a blend of Marxism and Gandhism, leaning heavily towards Gandhian socialism. This it the type of socialism intended to be established in India. “An India in which the poorest shall feel that it is their country in whose making they have an effective voice, an India in which all communities shall live in prefect harmony. There can be no room in such an India for the curse of untouchability or the curse of intoxicating drinks and drugs. Women will enjoy the same rights as men.” In Kedar Pandey v. Narain Bikram Singh, the appellant and respondent were contesting candidates to the state legislative assembly. The respondent was declared elected and the appellant filed an election petition challenging the election on the ground that the respondent was not duly qualified as he was a citizen of Nepal and not India. The Supreme Court held that assuming that the respondent was not born in the territory of India, on a consideration choice in India long before the end of 1949 which is the material time under Article 5 of the constitution. He had formed the deliberate intention of making India his home with the intention of permanently establishing himself and his family in India and therefore had the requisite animus manendi. He was ordinarily resident in India for 5 years immediately preceding the time when Article 5 into came force. As the requirements of Article 5 were satisfied, the respondent was a citizen of India at the relevant time. In the words of Mr. Justice P.N.Bhagwati, “These fundamental rights represent the basic values cherished by the people of this country of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a pattern of guarantee on the basic structure of human rights and impose negative obligations on the state not to encroach on individual liberty in its various dimensions.” As regards the test for determination of infringement of fundamental rights, it was held in A.K. Gopalan v. Union of India, that the object and form of state action alone need be considered and effect on fundamental rights in general will be ignored. However, this view was rejected by the Supreme Court in R. C. Cooper v. Union of India, where it was held that the theory that the object and form of state action determine the extent of protection which the aggrieved party may claim was not consistent with the constitutional scheme which aims at affording the individual fullest protection of his
basic rights. The state action must be judged in the light of its operation upon the rights of the individual and groups of individuals in all its dimensions. In Bennett Coleman Co. v. Union of India, it was held that the tests of pith and substance of the subject matter and of direct object and of incidental effect of the legislation were irrelevant to the question of infringement of fundamental impugned state action on a particular fundamental right. In Maneka Gandhi v. Union of India, the Supreme Court emphasised the relevance of directness of the impugned action in adjudging the infringement of a particular fundamental right. In Arti Sapru vs State of Jammu and Kashmir, it was held that the classification made for rectification of regional imbalances without identifying the areas suffering from imbalance, was vague and arbitrary and violative of Article 15 (4). The Government of Jammu and Kashmir earmarked 25% of the seats out of the total number of 50 seats for admission to the M.B.B.S. course in the Government Medical College for rectification of regional imbalance in different parts of the state. By a notification, certain villages were identified as socially and educationally backward for rectification of imbalance. It was held that there was no material before the Government affording a basis for classifying these villages as socially and educationally backward areas. The classification was arbitrary and unconstitutional. r, the rule of one man as King Emperor, Czar or Sultan, or with that of one class of men as an aristocracy”. Constitutional Fundamental Rights in it’s different forms Fundamental Rights have been provided in the Indian constitution in different forms. In some cases there is an express declaration of rights, e.g., Articles 29 (1), 30 (1), 25, 26 and 32. Some rights are declared as prohibitory without any reference to any person or body to enforce them, e.g., Articles 28 (1), 23 (1) and 24. Some of these rights take specific forms of restriction of state action, e.g., Articles 14, 15, 16, 20, 21, 22, (1), 27 and 28. A few of the Articles authorise the state to make laws in derogation of the fundamental rights, e.g., Articles 15 (4), 16 (3), 16(4), 16 (5), 23 (3), 22 (6), 25 (2), 28 (2) and 28 (3). Some of them are also given the form of positive declaration and simultaneously providing for the imposition of restrictions of those rights, e.g., Articles 19 (1) and 19 (2) to 29 (6). The declaration of fundamental rights does not follow a uniform pattern. They seek to protect the rights of individuals or groups of individuals against the infringement of those rights within specific limits. The constitution declares that the state shall not make any law which takes away or abridges the fundamental rights and such laws to the extent of inconsistency shall be void. In this sense, the fundamental rights operate as limitations on the exercise of power of parliament and state legislatures. The twenty-fifth amendment of the constitution in 1971 and Forty- second amendment of the constitution in 1976 enhanced the importance of directive principles by giving precedence to them over the fundamental rights. Minerva Mills Ltd. y. Union of India,AIR1980SC1789 the change made in Article 31-C by which primacy was given to all Directive Principles of state policy over fundamental rights by the forty-second amendment in 1976, was struck down. The result is that the power of parliament has been limited to framing of laws to enforce only two Directive Principles. Articles 39 (b) and 39 © even if they violate the fundamental rights enshrined in Articles 14, 19 and 31. The result is that Article31-C has not been struck down as such but the attempt to enlarge its scope in 1976 has been nullified. A question has been asked why these rights are called fundamental rights when they can be restricted or deleted by an amendment of the constitution and can also be suspended by a Proclamation of Emergency. The answer is that these rights are called fundamental rights because they are the most essential for the attainment by the individual of his full moral and spiritual stature. The denial of these rights will keep his more and spiritual life stunted and his potentialities undeveloped. To quote D.K. Sen, “Fundamental Rights are those tights of liberty and property which are essential to the development of man as an individual. A fundamental right does not therefore merely mean a right of liberty which enables an individual to develop his faculties in his interest and in the interest of the community as a whole”. (A Comparative study of the Indian constitution, Vol. II, p. 188). In cases like those of Maneka Gandhi, Sunil Batra, Hoskot and Hussainara Khatoon, one finds a new trend in the Supreme Court. In the case of Maneka Gandhi, the Supreme Court took the view that the provisions of part III of the constitution should be given widest possible interpretation. In the case of A.K. Gopalan, the court took the view that article dealt with separate rights and there was no relation between one another. They wee mutually exclusive. This view was rejected in the case of Maneka Gandhi. The constitution. “Their waters must mix to constitute that grand flow of unimpeded and impartial justice. Isolation of various aspects of human freedom for purposes of their protection, is neither realistic nor beneficial but would defeat the objects of such protection” Doctrine of judicial review The doctrine of judicial review was propounded for the first time by Chief justice Marshall of the Supreme Court of America in Marbury v. Madison. In that case, Chief justice Marshall held that all those who framed written constitutions contemplated them as forming the fundamental and paramount law of the nation and hence the theory of every such Government must be that an Act of legislature repugnant to the constitution is void and “it is emphatically the province and duty of the judicial department to say what the law is”.
While the America constitution did not make any provision for judicial review there is an express provision for it in the India constitution. In the case of A.K. Gopalan vs State of Madras, Chief Justice Kania observed thus: “In India it is the constitution which is Supreme and that a statute law to be valid, must be in all conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not”. The doctrine of judicial review is a special characteristic of the Indian constitution. This doctrine means that the courts have the power to scrutinise laws and executive acts and test their conformity with the constitution and strike them down if they are found to be inconsistent with it. Article 13 (2) of the constitution. Article 124 (6) enjoins a judge of the supreme court to faithfully abide by his oath or affirmation to uphold the constitution. It is therefore the duty of the supreme court to protect the fundamental rights against any encroachment or infringement by the state. The power of judicial review is necessary in a federal system because there is the necessity to decide in a dispute between the centre and the units with regard to the scope of the powers granted to them by the constitution. The constitution of the United states does not expressly confer the power of judicial review on the courts. The Supreme Court of the united states assumed this power to itself. It was Chief Justice Marshall who emphatically asserted this great power for the first time in the famous case of Marbury vs Madison1Cranch137:2Led60(1803). It was held in that case that it was the duty of the Supreme Court to declare a statute void if it was repugnant to the constitution. The Indian constitution is unique as it expressly confers the power of judicial review on the Supreme Court of India and the High Court. Judicial review is frequently resented because both the legislatures and the executive assert that vital questions of public policy ought to be determined not in the cloistered atmosphere of the Supreme Court or of the High Court but on the floors of the parliament or state legislatures. There is always the possibility of the abuse of the power of judicial review and social welfare legislation passed by a progressive legislature might be set aside as unconstitutional by a conservative judiciary. In spite of that, the framers of the Indian constitution provided for judicial review. On the whole, the system has worked well. The Supreme Court has exercised its power of judicial review with restraint. Separation of powers Unlike the united states, the doctrine of separation of powers in its rigid form is not to be found in the Indian constitution. In the united states, all legislative power is “vested” in the president and the judicial power is “vested” in one Supreme Court and in such inferior courts as congress may from time to establish. In a lecture delivered on August 21, 1976, Sardar Swaran Singh observed: “By inserting the word ‘Socialist’, it is intended to give a positive direction to the Government in formulating its policies. The objective of social and economic justice and its fulfilment are basic to bring about farreaching socio-economic changes to which we stand committed. The place of primacy that is now proposed should be given to the Directive Principle of state policy; our fundamental rights will enable acceleration of the pace. In his inaugural address delivered at the convention of constitutional Amendments in New Delhi on October 16, 1976, In state of Kerala v. R Jacob Mathew, it was held that Ezhavas, Muslims and Latin catholic inclusive of Anglo-Indians in the state of Kerala constitute “socially and educationally backward classes of citizens” within the meaning of Article 15 (4) and reservation of seats for them by the state of Kerala’s order dated June 7, 1963 in the Medical Colleges in the state cannot be considered as a violation of Article 14 of the constitution instrumentality or agency of the Government In R.D. Shetty v. International Airport Authority of India, the Supreme Court held that the International Airport Authority of India was a state within the meaning of Article 12. The Supreme Court laid down the following criteria to determine whether a corporation was the instrumentality or agency of the Government or not; 1. If the entire share capital of the corporation is held by the Government, it goes a long way towards indicating that the corporation is an instrumentality or authority of the Government. 2. Where the financial assistance of the state is so much as to meet almost entire expenditure of the corporation, it affords some indication of the corporation being impregnated with Government character. 3. Where the corporation enjoys monopoly status which is state conferred or state protected. 4. Existence of deep and pervasive state control may afford an indication that the corporation is a state agency or instrumentality. 5. If the functions of the corporation are of public importance and closely related to Government functions, it is a relevant factor in classifying a corporation as an instrumentality or agency of Government. 6. If a Department of Government is transferred to a corporation, it is a strong factor supporting the inference that the corporation is an instrumentality or agency of the Government. . Secularism Secularism is not anti- God or atheism. The state in a free society has to refrain from interfering with matters which are religious, that is, non- secular matters except to the extent that such interference is justified on the ground of public interest interest and the general good. Such a state guarantees
individual and corporate religious freedom and deals with an individual as its citizen irrespective of his faith and religious belief. The state is not connected with any particular religion. what we mean by secularism is that we “have respect for all religious and equal respect for all. Respect for religion does not depend on the number of the people that follow the religion. All religions in this country, however small their strength may be, have the same status and same prestige and same support from the state.” on the same occasion, Union Law Minister H.R. Gokhale defined the concept of secularism in these words: “There will be freedom liberty of faith and worship; whatever religion you belong to, is all what you mean by secularism. All that does mean is that the state will not have anything to do as a state with any religion except to treat every religion equally, but the state will not have any foundation of religion.” Justice is essentially an other- regarding virtue. It recognises the independence or separateness of other individuals. It is concerned with the procedures and outcome and with consequences of actions and their significance. About social justice, it is said that every man should stand or fall on his own individual merit or capacity and should not ask for free help from anybody. The preamble secures to all citizens equality of status and opportunity. This is provided by the prohibition of artificial restrictions on the grounds of religion, race, sex, colour, place of residence etc. Untouchability has been abolished and its practice has been made penal. All titles have been abolished. Equality of opportunity is provided by the guarantor of law. There is no discrimination in the matter of public employment. The terms of Article 16 of the constitution are emphatic on this point. Fraternity The concept of fraternity was borrowed from the French constitution. Fraternity means a sense of common brotherhood of all Indians. It is the reciprocal affection which inclines man to do unto others as he would that others would do unto him. It is the principle which gives unity and solidarity to social life. It may be difficult to achieve, but without it both liberty and equality will be no deeper than coats of paints. It is necessary to cultivate a feeling of fraternity among the people if India is to survive as a nation. While dealing with the duties of man, Mazzini wrote thus:“All privilege is violation of equality. All arbitrary rule is violation of liberty. Every act of egotism is a violation of fraternity.” Ambit power and jurisdiction to issue a writ under Article 226 The writ of certiorari lies only to remove and adjudicate upon the validity of judicial Acts and the expression judicial Act may include quasi judicial functions. The same is issued on the ground of want of jurisdiction or excess of jurisdiction or failure to exercise jurisdiction, violation of procedure or disregard of principle of natural justice and error of law apparent on the face of the record. The writ of prohibition is distinct in as much as it is issued of the different stage of proceedings. The person against whom proceedings were taken can move the High Court for binding the interior Court or the tribunal for continuing the proceedings. Thus the prohibition is for arresting the further continuance of the proceedings while the writ of certiorari is a writ for quashing after the authorities have terminated in a final decision. The writ of mandamus is derived from the Latin word “we command” and the same is issued to enforce a legal right to compel the respondent to do the performance of some duty of a public nature created by the provisions of the constitution of a statute or some rule of common law or restrain from doing something contrary to it. A writ of mandamus is thus a writ as a rule which is dependant up on the discretion of the Court to substitute it’s wisdom or discretion for that of the person to whom the judgement in the mates: a question was entrusted by law. The writ of quowarranto is to prevent a person who has wrongfully usurped an office from continuing in that office and the writ calls upon the under of the office to show to the Court under what authority he holds the office. The writ of habeas corpus has been rightly considered for enforcement to its object of speedy release by judicial decree of a person or persons who is or illegally restrained and thus it is an essentially a procedural writ. The distinction is now clear that while the writ of certiorari may be issued by the High Court requiring that the record of the proceeding which have been terminated in a final decision is some cause or matter pending be fore an inferior cause should be transmitted to the superior Court to be dealt with there while the writ of prohibition is primarily supervisory and the object of that writ is to restrain the court /tribunal from exercising a jurisdiction which is not vested with then and to prevent them from exceeding the units of their jurisdiction. The writ of quo- warrento is issued to have an inquiry as to the legal authority of a person occupying an office while the habeas corpus is a highly privileged writ to enforce Fundamental Rights in the Indian personal liberty. law made void (Article 13) In article 13, the term “law” includes any ordinance, order, bye- law, rule, regulation, notification, custom or usage having in the territory of India the force of law. The term “law in force” includes laws passed or made by a legislature or other competent authority in the territory of India before the commencement of the constitution and not previously repealed, notwithstanding that any such law or any part there of may not be then in operation either at all or in particular areas. Nothing in Article 13 shall apply to any amendment of the constitution made under Article 368. In state of Madras v. V.G. Row AIR 1952 SC 196. Chief justice Patanjali Sastri wrote: “Our constitution contains express provisions for judicial review of legislation as to its conformity with the constitution, unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative Acts under cover of the widely interpreted ‘due process’ clause in the Fifth and Fourteenth
Amendments. If then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of duty plainly laid upon them by the constitution. This is specially true as regards the fundamental rights as to which this court has been assigned the role of sentinel on the qui vive”. In Kesavananda Bharati v. state of Kerala, (1973) 4 SCC 255: AIR 1973 SC 1461. Khanna, J. made the following observation: “Judicial review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of the provisions of the statutes. If the provisions of the statutes are found to be violative of any Article of the constitution which is the touchstone for the validity of all laws, the supreme Court and the High Courts are empowered to strike down the said provisions.” As a matter of fact, the power of judicial review was held to be one of the basic features of the Indian constitution. Article 13 (1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the constitution. Keshavan Madhav Menon v. state of Bombay, AIR 1951 SC 128: In Ramesh Thappar v. state of Madras, AIR 1957 SC 628: the Supreme Court observed, “Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions, both within and without the limits provided by the constitution. Where it is not possible to separate the two, the whole law is to be struck down. So long as the possibility of its being applied for purposes not sanctioned by the constitution cannot be ruled out, it must be held to be wholly void.” The Supreme Court has laid down the following rules with regard to the doctrine of severability: 1. In deciding whether parts of a statute are separable from the invalid part, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. 2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, the invalidity of a portion must result in the invalidity of the whole. if after striking out what is invalid, what remains is in itself a complete code independent of the rest, it will be upheld notwithstanding that the rest has become unenforceable. 3. Even when the provisions which are valid are distinct and separate from those which are invalid, if, they all form part of a single scheme which is intended to be operative as a whole, the invalidity of a part will result in the failure of the whole. 4. When the valid and invalid parts of an Act are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety. 5. The supportability of the valid and invalid provisions of an Act does not depend on whether the law is enacted in the same section or in different sections. it is not the form but the substance of the matter that is material and that has to be ascertained on the relevant provisions therein. 6. If after the invalid portion is expunged from the Act what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void as otherwise it will amount to judicial legislation. 7. In determining the legislative intent on the question of separability, it is legitimate to take into account the history of the legislation, its object, the title and the preamble to it. In Mahendra Lal Jaini v. state of Uttar Pradesh, AIR 1955 SC 781: the Supreme Court held that the application of the doctrine of eclipse arises from the inherent difference between Article 13 (1) and Article 13 (2) arising from the fact that one is dealing with pre- Constitution laws and the other is dealing with the post- Constitution laws. In one case the laws being not stillborn, the doctrine of eclipse will apply. In the other case, the laws being stillborn, there will be no scope for the application of the doctrine of eclipse. In Basheshar Nath v. Commissioner of Income Tax, Delhi. AIR 1959 SC 149. the petitioner whose case was referred to the income Tax Investigation Commissioner under Section 5 (1) of the Act was found to have concealed large amounts of income. He entered into a settlement with the Department and agreed to pay in 1954 Rs 3 lacs in monthly instalments by way of arrears of tax and penalty. In 1955, the Supreme Court in Muthiah v. Income Tax Commissioner AIR 1956 SC 269. held that Section 5 (1) was ultra vires of Article 14. QUASI-JUDICIAL FUNCTIONS AS DISTINGUISHED FROM JUDICIAL FUNCTIONS A Quasi - judicial function differs from a purely judicial function in the following respects; (i)A quasi-judicial authority has some of the trappings of a court, but not all of them; nevertheless there is an obligation to act judicially. (ii)A lis inter parties is an essential characteristic of a judicial function, but this may not be true of a quasi-judicial function. (iii) A Court is bound by the rules of evidence and procedure while a quasi- judicial authority is not. (iv) A court is bound by precedents, a quasi- judicial authority is not. (v) A court can not be a Judge in its own cause, while an administrative authority vested with quasi judicial powers may be a party to the controversy but can still decide it. ADMINISTRATIVE FUNCTIONS The same are residue of governmental functions that remain after legislative power and judicial functions are taken away.
(i) The administrative order is generally based on governmental policy or expediency. (ii) In administrative decisions, there is no legal obligation to adopt a judicial approach to a question to be decided, and the decisions are usually subjective rather than objective. (iii) An administrative authority is not bound by the rules of evidence and procedure unless the relevant statute specifically imposes such an obligation. (iv) An administrative authority can take a decision in exercise of a statutory power or even in absence of a statutory provision’ provided such decision or act does not contravene provision of any law. (v) Administrative functions may be delegated and sub -delegated unless there is a specific bar or prohibition in the statute. (vi) While taking the decision, an administrative authority may not only consider the evidence adduced by the parties to a dispute, but may also use its discretion. (vii) An administrative authority is not always bound by the principles of natural justice unless the statute casts such duty on the authority, either expressly or by necessary implication or if it is required to act judicially or fairly. (viii) An administrative order may be held to be invalid on the ground of unreasonableness. (ix) An administrative action will not become a quasi- judicial action merely because it has to be performed after forming an opinion as to the existence of any objective fact. (x) The prerogative writs of certiorari and prohibition are not always available against administrative actions. However, this is a very difficult task,” where does is the administrative end and the judicial begin? “Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed. If there is power to decide and determine to the prejudice of a person , duty to act judicially is implicit in exercise of such power. On the whole the test of justifiability has replaced that of classification of function as a determinant of the appropriateness of a decision for judicial review. Extravagance of Public Finance vis-à-vis curbing the power and duties of C&AG. The constitution of India provides that the Comptroller and Auditor General of India shall be appointed by the President by warrant under his hand and seal who shall not be removed from Office, except in the like manner and on the like grounds as a Judge of Supreme Court. The term of appointment shall be for a period of 5 years and the condition of service and salary of the Comptroller and Auditor General of India shall be such as may be determined by Parliament by Law and until they are so determined, shall be as specified in the second schedule of the constitution. The Comptroller and Auditor General shall perform such duties and exercise such powers in relation to the accounts of the union and of the states and of any other authority or body as may be prescribed or under any law made by Parliament. The report of the Comptroller and Auditor General relating to the accounts so maintained of the union shall be submitted to the President who shall cause them to be laid before each house of Parliament . The report relating to the accounts of the states shall be submitted to the Governor who shall cause them to be laid before the legislature of the states. That the present accounting system applicable to most Ministries and departments in essentially external to Financial management function in that the payment made by the treasuries and accounts are compiled by audit and accounts offices under the control of the Comptroller and Auditor General on the basis of initial and subsidiary accounts received by them from the treasuries. This system worked fairly well when Governmental business was limited. With the increase ion the volume and variety of Governmental business and the continual set-up of developmental outlays, this system has proved inadequate to the administration task. The scheme of separation of accounts from audit was to be implemented in selective ministries e.g communication, civil aviation, tourism, industries and civil supplies w.e.f April 1976, where the expansion regarding the expenditures and its audit was felt to be providing certain constraint and thereby resulting into the delay in implementation of the schemes at the relevant time. However by the gradual increase of the power with these ministries, the similar laxity in relation to the procedural safeguard was further provided the other ministries resulting into the defeat of the very purposes for which the office of the Comptroller and Auditor General was given the power through checks and balances. The effect of the aforesaid process has resulted in the departmentalisation of union accounts enacted in 1976 and the transfer of personnel was given effect by the enforcement of the Act no 59 of 1976 from Indian Audit and Accounts departments which was earlier under the control of C.& AG to the newly formed department of Civil Accounts under the Controller General of Accounts under department of Expenditure ministry of Finance. In this manner the office of C& AG which was constituted under the scheme of the constitution of India to provide the restraint to the expenditure disproportionate from its own discretion by the relevant ministries was brought under the ministry of Finance and thereby giving the unbridle powers to the ministers and thereby overthrowing the constitutional mandate securing the safeguard over the whimsical expenditure. According to the legal opinion of the constitutional experts, the diversification of the financial powers to be utilised by the sole discretion of the bureaucrats without taking into consideration the Audit objections, which could have been made under the original constitutional scheme, was directly resulting into the notion of conferring the absolute power to the respective ministry. This was against the democratic, federal and republic set-up of our Constitution. The aforesaid concept of the parliamentarian democracy, providing the fraternity to an individual in preamble of the constitution, was an attack on its basic
structure. This has led to an inadequate financial control which would have been benefited to the nation if such power were remained with C&AG in India. That it would be relevant to point out that the office of the Auditor General of India was created under the Government Of India Act 1935 for exercising the control over expenditure incurred by Central And State Governments and for proper accounting thereof in such forms and in such manner as may be prescribed by him and he was also responsible for rendering a complied account of receipt and expenditure to the Centre and State Governments and he was also required to submit report on the result of Audit in his Audit report to the Governor- General and the Governor of the States for laying it before respective legislatures . That after coming over the constitution of India the Auditor General was designated as Comptroller Audit General of India under chapter V of the constitution. The state Govt. which lavishly spends crores on the refreshment allowances of its ministers, now is facing a crisis that it does not have enough money in its coffers to deposit the premium of insurance cover for 1 lakh employees of local bodies due for their group insurance scheme. As a result of this misutilisation of the public money the insurance scheme of these employees has lapsed and the life insurance corporation has expressed its inability to consider any future claim as part of the scheme in case of the death of a employee. The LIC missive state that the group insurance scheme of some 94.165 local bodies employees stands forfeited due to non deposit of approximately the premium of Rs 1.83 crores due on it from the last seven months. The LIC informed that the interest at the rate of 12% would also levied on the amount due to delay in payment of the premium. It is based on the idea for having LIC’s Master policy 4912 under its group insurance scheme which was mooted in 1977 by the state Govt. The Directorate of the local bodies makes a monthly payment of Rs 21.63 per member to the LIC while a employee make a payment of Rs 20 from his salary while Rs 1.63 is contributed by the state Govt. each months towards the policy, for which the LIC shrugs off future claims in case of the policy holders death where his next kin get Rs 25,000 under the scheme beside the premium deducted from his salary is also refunded with a 10% interest on the amount. Similarly an employee on its retirement get a premium deposited by him back with a 10% interest on the amount from the insurance firm. This is due to extravagance of public finance and curbing the powers and duties of Comptroller and Auditor General with effect from the time of enforcement of the Act no 59 of 1976 putting the earlier control of the C&AG under the Department of Expenditure Ministry of Finance in State of U.P. Question& Answer Question: What do you think whether our judiciary conferred with the power of judicial review under our constitution has been successful to deal with the plight of living dead? Answer :The constitution is supreme and all the three pillars functions under its strict supervision . the supremacy of the parliament and the power of the Hon'ble Constitutional Courts in India have gone through a consistent efforts for providing a harmonious construction to build up a foundation on which our country may survive . The doctrine of immunity from legislation against the enactment through legislation has undergone a great struggle whenever the Hon'ble Constitutional Court found the infringement of fundamental rights of the citizen . However on account of excessive burden and the need for securing the effective exercise of the judicial review by the Hon'ble Constitutional Courts even with regards to Administrative action , there is an unchecked flow of litigation for every invasion of the right under the garb of the infringement of the fundamental rights. Question: Whether you speculate in this process any tough battle for securing the basic structure of our constitution with the doctrine of Supremacy of the parliament and how far it is important for the healthy growth of our welfare state . Answer: The rigours to demotion of judicial writ power by some of the constitutional amendments like 42nd Amendment has been declared ultra virus in Minerva Mills Case (1980) 3 S.CC 625 , Waman Rao case (1981) 2 S.C.C 362 and in L. Chandra Kumar case (1997 ) 3 S.C.C 261 reaffirming the majority verdict of the landmark judgement of Keshavananda Bharti case of 13 judge constitution bench of the Hon'ble Supreme Court . The jurisdiction conferred upon the Hon'ble constitutional Courts including the High Courts under Article 226 and Article 227 has been held as a part of the basic structure of the constitution. Thus not even the power of legislative enactment but also the power conferred under Article 368 to Amend the constitution may be subjected to judicial review by the Apex Court . Question: Whether you think that in this process the expression "Procedure established by Law " as enshrined in Article 21 has now been replaced by "due process of law" as evident in American Constitution ? Answer: Article 14 has two concepts which is a unique feature in Indian constitution. Most of the constitutions of the world either speaks of "equality before the law" or the "equal protection of the laws". Both these concepts although appears to be the same are not actually the same . The equality before the law refers as to providing the equality before the substantive laws of the nation as illustrated in Article 15 to 18 and also under Article 38, 39, 39A, 41and 46 of the constitution . The connotation equal protection of law contemplates for minimising the inequalities and for eliminating the inequalities in status , facilities , opportunities , values of lives with social care towards educational and economic interest not only amongst citizen but also amongst the group of the citizens. This Article forbids class legislation except being founded on an intelligible differential and to have a rational relation to the object sought to be achieved by the statute in question . The test of classification must be rational . However by the efflux of time , Article 21 which is couched in negative
language by the framers of our Constitution has undergone the major change by interpretation through its positive angle having the inhibition contained therein i.e. "life " as synonymous to "livelihood" by taking into consideration that by abrogation and subjugation of the means of the living there shall be no life . This was done to get the rid of the radical innovation providing an instrument of status quo upholding the traditions of Anglo-Saxon jurisprudence and resisting radical innovation in the use of judicial power to promote social change by the so called judicial activism . The other concepts such as "Rule of Law" , "Judicial restraint" , "Separation of power", supremacy of fundamental right s over directive principles and "Procedure established under Law" conveniently to avoid change whenever possible through the assistance of two concepts of Article 14 as whenever required delete it and whenever inevitable dilute it as far as practicable and thus the discretionary powers were exercised in the different manner by inviting the diversities in the opinion of the constitutional Courts while dealing with Quasi judicial actions . Question : Thus you mean to say that Article 21 of the constitution is not a fundamental right of the citizen as is being dealt with by the Hon'ble Supreme Court and has been included in the chapter of fundamental rights ? Answer: True , Article 21 has been included in the chapter of fundamental right under our constitution but the same is a fundamental duty of the government as to provide protection against depriving any person of his life or personal liberty . There is only one individual fundamental right of the citizen i.e Article 19 . Article 25 and 26 is a collective right to the freedom of conscience and right to profess , practise and propagate religion and also to manage religious affairs . Thus every fundamental duty casted upon the government which is providing the protection to the individual may be read with the reasonable restrictions as contemplated in sub articles (2)to (6) of Article 19 of our constitution thus the constitution has provided a "check and balance" over the power of the Hon'ble Courts and the duties casted upon the government . In this manner the Hon'ble Courts while interpreting these Articles of fundamental rights may dealt with the individual as to whether the right which implies the forbearance to perform the duty by the Government has got the qualification prescribed in the yard stick of the reasonable restrictions or the constitution with the galaxy of so called fundamental right may be ruled in respect of its governance by the political set-up having co-ordination with divisive forces to the oppression of the people at large which has not been done after independence. Question: What was the need of introducing Article 51A when already there were fundamental duties of the Government ? Answer: Every right implies the forbearance on the part of other to perform his duty as right and duty is correlated and coexistent. After independence our country has been ruled with governance through laissez faire and the citizens have miserably forgotten there duties under the spirit of availing an aspirant cherished freedom . Thus the chapter of unenforceable fundamental duties was introduced with effect from 3.1.1977 by 42nd amendment . Question : Why there is a pendency of number of litigation before the Constitutional Courts in which the case of the living people who have been declared as dead people in the official records have not been dealt with in time .? Answer: The right of the people has been considered in the different dimension against every atrocities committed by the administration in discharge of their duty as the custodian of the public trust . The concept of public trust doctrine was developed by the Constitutional Courts to provide the safety to an individual as susceptible to abuse in discharge of the role by our Constitutional courts as a sentinel on quivive . The maxim of "ubi us ibi remedium" (where there is a right , there is a remedy ) was sparingly applied in respect of administrative action without considering as to whether the same is quasi judicial or not . The separation of power which was embodied to certain extent in our constitution and having its elasticity to provide pervasive potency and versatile quality has been diluted in absence of any accountability towards administrative action. Thus there was a flow of litigation before the constitutional Courts even in respect of violation of every right for which the administrative authority were responsible to exercise their power as the custodian of the public duty .Thus due to paucity of time , the genuine litigation was circumvented by unscrupulous litigation and there by suppressing the fundamental right of a bonafide citizen . Question: Do you think that the present system can be rectified by enacting more legislation by the parliament or it may be left to the Constitutional Courts to eradicate the prevailing maladies ? Answer There must be an accountability fixed with every officer and bureaucrats in the society regarding there abuse of power and judicial review which comprises the power of judicial superintendence over every sub-ordinate authority may be necessarily applied by the higher judiciary .There is a requirement of complete separation of power between three institutions on which our democratic set-up is dependent the adequate punishment be implemented in the deterrent and punitive manner as to create an example to the other wrong doer specially under the circumstances when the integrity and the prosperity of the nation is involved. In case of malafide exercise of power not only the action which is done contrary to the object may be rectified but there may be a judicial scrutiny for recommending the departmental disciplinary proceeding against the official who has passed such order with extraneous considerations. There should be the limit over the privilege conferred with every public servant who is not only a custodian of the power but also owe the duties towards the citizens who are considered in our constitution as the sovereign of the sovereignty . Question: What do you think to be the source of the power of judicial review ? Answer :It may be traced to the classic enunciation of the principles laid down by the Chief Justice John Marshall of U.S Supreme Court in Marbury Vs Madison ( 1 Crunch : 2 L Ed 60 (1803 ) ) as the
origin of this power is never attributed to one source alone . It has been laid down that the judiciary dealing with interpretation of Law is duty bound while expounding and interpreting the Law and to see as to whether the Law is repugnant to the settled norms of the constitutions otherwise the same be declared as void .In America where the Supreme Court has assumed extensive power of reviewing the legislative Acts while in our constitution this power is conferred by the expressed provision contained in Article 13 of the constitution of India . Thus the power of judicial review has now considered to be an integral part of our constitutional system . Question: What do you think to be the role of the Advocates in the process of judicial discipline and thereby providing a check and balance over misutilisation of the judicial and quasi judicial power by the public servant ? Answer : In America the Lawyers may conduct the investigation in respect of the wrong committed with the people through their own investigation agencies and there is there is the power vested with every officer to deal with the misuse of power by any person without taking the accent from the higher elechon in the hierarchical set-up of superior authority in some of the European countries .However in India we have no such power to fix an accountability towards a public wrong by an Advocate and also by any honest official as there is a vicious circle in our Bureaucratic set-up where there is larger privilege and lesser responsibility. Thus we have become a silent spectator of the situation which is going to be the worst by the process of time . The apathy of the intellectual echoes back into a vacuum which has neither any ventilation for providing the fresh air to our people . Till such time when the intellectuals in the society may not be allowed to run the public administration nothing can be achieved in our nation. The importance of justice is considered in our ancient time The importance of justice is considered in our ancient time, which is evident by the chapters enumerated in the code of Manu as under ; There were the best possible rules to promote the interests of both the king and the subjects. The contraction of debt- dispute relating to lending and borrowing , deposit- a person’s refusal on demand of thinks or money placed in his custody , Sale of property without ownership, illegal concerns amongst partners , resumptions of gift , deduction or less payment of wages or salary , non performance of or acting contrary to agreement , disputes of transactions , dispute between the owner and the tender of cattle , contest on boundaries , assault or severe , beating, harsh language or slander, theft larceny robbery , tress- pass or acts of violence , adultery , alteration regarding the failure of duties as man and wife , disputes of inheritance , gambling or laying thinks or conscious beings at stake in play were the points of dispute for adjudication on rival contentions. The king after considering the contention of several persons was never partial to any body with reference to the ancient law. Even in that time there were uniformity of procedure and the decision after due hearing and collecting the evidence . 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 three. 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. Legal justice , with a humane mission, must update itself to legitimise 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., litigative 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. The structure of the society rests on the foundation .We cannot escape the consequences of losing all access to abrader a vision It creates a narrow-mindedness in the prospects of a development .Few amongst the citizen ,the masses have the ever given any serious consideration to the problem of life. Thus the problem of life still remain unsolved. Let us discuss that why are not having the solid foundations without access for the broader vision having an extinction for our existence. Freedom from bondage is liberation there is a goal of life with and devotion. Our tryst with destiny has not brought any desired changes for wiping out the tears from every eye .There cannot any political will amongst the individuals who are craving to get power. The Political will is guided by our constitution
of India and we find that it is not having strong hold to keep the nation intact ,the society move and the country prosper .Some radical changes are needed to maintain country’s unity and integrity .The prosperity of the citizen do not lies in the form of government, chosen by them but in the accountability and the stability in its precepts and practice . There is no representative Govt. but an equation of inducting themselves as the representative of the to form there govt. It is only the constitution which may provide a device to ensure a degree of self assessment .We want more stability and lesser responsibility upon these representatives chosen from amongst the people by the appropriate amendment in our constitution .There should be periodical assessment of the responsibility of executives .The present constitution is the reproduction of the Govt. of India Act,1935 and the combination of ideals of western liberal democracy nurtured to achieve the goal of our constitutional aspiration . The federal system is based on decentralisation and it is a system evolved of the governance of heterogeneous , diverse and plural society in a small country to have been based on the representative Govt. and not on the basis of indirect representation through parliamentarian democratic system .It leads to instability we should take notice ofd the expectations of the people who fought the battle of independence by adopting the policy of self realisation as being professed by our father of nation. Our constitution is based on the assumption of the authority where the entrustment of power is imposed by having the restriction upon the excessive power. Let us accept that it was weakness of the character of our citizens that Indian dominion has to live under the British sovereignty and we had to fight a struggle for attaining the freedom. The need for imposing the restrictions are required to be done to keep the society intact from adjuring violence ,dealing with corrupt politicians and to control over burden some disastrous consequences .Let us examine how to fight against criminalisation, black-marketing ,essential service maintenance and law & order situation .There is a lake of political will in those are actively participating in service tom the nation ,they are being subjected to oppression and harassment .There is no place for benevolent honest citizen and those who are dishonest opportunist with a criminal background are seldom being respected by our citizens . The genesis of the character is based on the falsehood and in such circumstances until and unless accountability of the individual in public life is not fixed upon the representatives of the Govt. there is no hope for the revival of the nation . The political arena has now witness a class politics not on the basis of the actual issues relating to the human problem, but on the caste basis by giving the go by to every ethic and logical perceptions simply on account of our caste affiliation. There are the instance when a person sitting on the top of the bureaucracy and occupying a constitutional post as the top most authority either in the political spare or even in judicial side, he is also seen to be tempted with the sudden impulse of having the caste affiliation as a predominating factor in governing the Nation . We have not taken any lesson from our slavery administered by some alien forces governing the nation and still we are acting like a spoiled gambler , who has loosen every penny of his belonging and his reputation in the society, but still he is continuing to play the gamble with his life due to caste affiliation . There happens to be a tug of war between one force of identity based on religious compulsions as to demoralise the conscience of one person over the other individual . No one is having any concern with the plight of the citizen fighting against the factor relating and responsible for natural calamity , but every one appears to be interested in adopting any means ; fair or foul and that too with a flavour of caste affiliation. Who has not become an intoxicant by tasting the juice of power but one should not consume the intoxicant under the garb of the caste affiliation as he may loose his own existence and thus be ruled out by some dictator for which the invaders have already made the prediction, while giving the power to these power intoxicant at the time of independence of our Nation . God give the good sense amongst our politician and the guardian of Hindu religion to wake prior to the time when it is not already too late . No man can survive in isolation . There is a rule of give and take . The moment one person is inclined to accept everything as a matter of his right, the person who is inclined to give him his extra potential , withdraw the basic offer. This become the end of social collaboration . No country is able to survive except by the will of the people . The bitterness amongst the people may ultimately lead to a crisis on psychological level. Thus the country required the coercive method for the enforcement of law and order situation. This was on account of partition of India RELIGION AND THE NATION My nation is my religion. Salutation to the nation is meant for social co-ordination and solidarity amongst the citizens and therefore it is regarded the greatest service of humanity. The controversy triggered off over the telephonic recital going patriotic on independence the my reading the callers with “Vande Mataram” being objected with the title Masjid Mein Vande Mataram”, by Mr Idirisi has hurt the sentiment of Indians. Any negative feeling is the feeling against the nation . It will be called as the saddest day for our hard one freedom. Those hundreds of patriots who sacrificed their lives by daring to get themselves hanged by chanting the slogan “ Vande Mataram” is now triggered off controversy of fanatic psyche “Vande Mataram is not a communal song ,but is a salutation to the nation including to the sentiments of the great poet Iqbal, who wrote “SAARE JAHAN SE ACHHA HINDUSTAN HAMARA”
Conscience is the inmost thought consciousness moral sense scrupulousness ,conscientiousness It means the freedom to right or belief. To profess means to affirm one’s faith in religion or God . In Shirur Muth case (A.I.R 1954 S.C 282) the Hon’ble Supreme Court said Religion is certainly a matter of faith with the individual or communities and it is not necessarily theistic. The well-known religion in India like Buddhism and Jainism do not believe in God or in any in the religion or in any intelligent first course. A religion undoubtedly has its basis in a system of belief or doctrines, which are regarded by those who profess that religion as conducive the their spiritual well-being………. In Bijoc Emmanuel vs state of Kerala (1986) 3 S.C.C p. 615 in which a state compulsion on an individual perform a secular activity was challenged to violate his religious conscience. The circular being contra sacramental by participation in singing national anthem before marching to the classes was under challenge. The Hon’ble Supreme Court held that the circular has no force of law and any compulsion to join in the singing despite genuine conscientious religion objection would clearly contravene the rights guaranteed by article 19 (1) (a) and article 25 (1) of the constitution of India. Can we survive without a nation? Whether the freedom of conscience is a perceptible aspect or abstract phenomenon. The conscientious objection may refuse to bear arms or an atheist may not be compelled to swell in the name of God. The national anthem and the national flag was dispensable in the face of religious objections. The Hon’ble Supreme Court while observing the need of enforceable fundamental duty under article 51 -- A (a) of the Constitution which provides for proper respect to our national anthem. It was observed that the mere executive or a departmental instruction cannot canton the dimension of free conscience clause of our Constitution and therefore the increased conscientiousness provides a constraint on the compulsory vaccinations and inoculation particularly during gigantic mass of congregation like Kumbha Mela and other religious fairs in our country. The end of religion is beginning of spirituality; the end of spirituality is the beginning of reality and the end of reality is the real bliss. Instead of worshipping the great master, the omnipotent, ominous, omnipresent. We have started worshipping his servant and rather the place of worship is now regarded above to the religion. People are driven through such faulty guidance and having the darkness in the self realisation. The goal of life is to achieve the greatest possible efforts towards the serious consideration to the problem of life. If we have no essence of vary life how we can achieve the freedom from bondage which may provide salvation. Thus the religious sentiments are no where providing obstacles in the process of salutation to our nation. Rather the religion is based on the foundations of being a patriot first then to believe any dogma or rituals under the garb of the religion. The state affairs in India without having the enforceable fundamental duties as we may resolved from a political situation having growing tendency towards moral, religious and social degradation, is rather deplorable. India does not hold any bright prospects with interruptions and spirituality compassionate to the animals and to protect the vegetation is the reciprocal obligation towards the God. Thus the respect contributed towards civilisation of providing solidarity and the integrity to the nation by salutation to our country is the fundamental principle of the religion. The consequences of the present drastic change in the mentality of the individual on the -- is alienating responsible for mobcracy which may lead to enormous blood shade all over the world as if the religion is not based on spiritualism which ultimately ruin our civilisation This universe is a system of change and formation of energy for our living creative to an other. The energy which kinetic or magnetic or electrical is the basis of life. The vapours arising out of such energy is ultimately the source of our inspirations. The moments we kill our fallow inhabitants, the energy involved into the different formation, but it never extinguished, thus God is one and therefore the belief to adopt a particular religion should be founded on common foundation. God is perfect the universe is perfect but we're not perfect let our soul may appreciate it. The primary objective of the society is to do welfare of all human beings and when we inspite living inside the boundaries of our country may not provide salutation to that nation We have no right enjoy any right in such country. HUMAN RIGHT JURISPRUDENCE & JUDICIAL ACTIVISM The instrument of status quo upholding the traditions of ANGLO-SAXON JURISPRUDENCE and resisting radical innovations in the use of judicial power is no more in existence. Concepts such as “RULE OF LAW”,”SEPERATION OF POWER”,”INDEPENDENCE OF JUDICIARY”,”SUPERMACY OF FUNDAMENTAL RIGHTS OVER DIRECTIVE PRINCIPLE”, NON ENFORCEABLE” FUNDAMENTAL DUTIES”, were introduced by the passage of time. The “JUDICIAL RESTRAINS”, “JUDICIAL PRECEDENTS”& “CERTAINTY OF LAW” were used conveniently to avoid and dilute the effect whenever it was so required. Thus the resultant legal culture was the same as we have in preindependent days. The expansion of the Doctrine of LOCUS STANDI to the citizen and democratisation of remedies are not on speaking terms. Thus the role of Locus- Standi is required to be dealt with by Judicial activism by the courts dealing with the Constitutional rights. There are very less number of fundamental right & larger number of duties imposed in the chapter dealing with fundamental right in
our constitution of India. Except the right conferred under Article 19, there is no individual fundamental right to the citizen . There are some collective right to the citizens . The rest of the Articles are the fundamental duties of the government towards its citizen . The promised “ TRYST WITH DESTINY” to achieve the change were determined on the interpretation of the constitution. The judicial power are often not represented in judicial forums and appears to be at the receiving end of mal-administration and subjected to exploitation for the litigant. The greatest contribution of judicial activism is to ensure the feeling in the mind of common citizen that he may represent in judicial forum. HUMAN RIGHT IN INDIAN DEMOCRATIC CONTEXT The concept of Human rights relates in its immemorial antiquity from the time of inception of the Human being .Human rights advocacy is not an encroachment upon the national sovereignty , but is an ultimate aim of state craft .The rights of men are assets to humanity and a liability of the State. Man has created the concept of state to preserve his natural rights. The concept of fundamental law and fundamental rights are the of spring of the natural rights . This stands above the positive Las created by the political sovereign . The philosophical foundation of Human right has got tremendous power and vigour . Human rights is legitimacy of democratic political order which is enshrined in most of the constitution of different countries. Rene cassin at Colloguim has defined Human rights as “the science of human rights relates in the light of human dignity for the full advancement and development of personality of human being . Thus the human rights are such written instructions which starts from Magna-Charta -1215 , Petition of rights -1688. The French declaration of rights of citizens -1989 proclaim the natural and imperceptible rights of Man’s liberty ,property, security and resistance to oppression. The American declaration of independence -1776 ; “ All men are created equal” ( in pursuit of the happiness as endowed by creator upon all men ).The preamble of universal declaration of human rights may be summarised at this juncture ; “ Whereas recognition of inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom , justice and peace in the world ; “whereas disregard and contempt for human rights have resulted in barbarous acts , which have outraged the conscience of the mankind , and the advent of a world in which human beings enjoy the freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people ;whereas it its essential , if man is not be compelled to have recourse , as a last resort , to rebellion against tyranny and oppression , that human rights should be protected by rule of law; “whereas it is essential to promote the development of friendly relations between nations ;”whereas the people of the united nations have in the charter reaffirmed their faith in fundamental freedoms ;whereas member states have pledged themselves to achieve, in co-operation with the united nations , the promotion of universal respect for and observance of human rights and fundamental freedom; “whereas a common understanding of these rights and freedom is of greatest importance for the full realisation of this pledge. The preamble so incorporated has inspired the various constitution of the world to include certain basic human rights through court of law. The object of human rights jurisprudence is to human state agencies and to make state accountable to use of power only for human good . In A.I.R.1957 SC page 620 it has been laid down that human rights have always under pinned the common wealth. The evolution of empire into commonwealth was itself a testimony of most basic human rights -self determination . The powerful repudiation due to the diversification from the sense of family concept between people has become one of the major threat to human rights and they have transcending the difference of race religion , language and culture . In Canada under section 11 there is right of the citizens against ex-post-facto law. In China 1982 under 42 there is the incorporation of the rights to work while in U.S.S.R 1977 under Article 75 -2 there is the right to protection by the courts against encroachment on the citizen owner and reputation along with other rights . In west Germany the citizens has right to development of personality under section 2 (1) of their constitutional -1949. These rights although being recognised on principle under the ambit of the expression life , but they are still not been recognised as that of fundamental rights under our constitution . These rights are required to be effectively protected to achieve the principles of internationally recognised human rights as to achieve the ultimate goal of rule of law under the society .No society can be considered truly democratic if its citizens are denied possibility of vindicating their legal rights as enshrined under section 2(d) of the Human Rights Act,1993. Human rights reiterated the need to explore the possibility of establishing the promotion and protection of human rights . The attendant special significance after the Vienna convention 1993 by which strong public opinion was created for safeguarding for human rights . Human rights are aspirations of the common people for peaceful coexistence. Iran has set-up on International Islamic human rights commission . In Jagmohan Singh Vs State of U.P A.I.R 1975 S.C 1947 , the Supreme court has thoroughly discussed the constitution aspect of capital punishment . In Bachan Singh Vs State of Punjab A.I.R 1980 S.C 598 the sentence was expected to be imposed in rarest among rarest case. Since 1964 amnesty international reported that united state was one of the sixth country known to have executed juvenile offender with death sentence . On 14.2.1989 Ayotollaha Khomeni
pronounced’ A Fatwa a sentence of death for Salman Rushidi for his book ‘Satanic Verses’. In China five hundred people were executed in 1990 before the start of Asian games to clean up crime. The nature of the crime, the circumstances of the crime should be so revealing that if the criminal is managed to escape , he may provide a great terror to the society and in such circumstances the life imprisonment is not an adequate sentence. In such case , after due care and cautions if the sensitiveness of the crime is accepted by a judge , the death sentence may be awarded. Although , life once lost cannot be brought back up by the human efforts. The fifth pillar edict of great Emperor of Lord Ashoka, postulated death penalty as a heinous crime. Hindu jurisprudence , according to Yagna Valkaya was in favour of capital punishment . Manu prescribed death penalty for offences of treason. Kautilaya has also prescribed the death penalty for rapist , thieves of treasury and also for the thieves of King’s elephant and horses even the individual performing funeral rites was prescribed death penalty. Theft of jewellery was liable for simple murder (Kautilaya Arthashastra, chapter 85,magin 4, verse 2). Theft of government property from Store of government worth of ten pounds was liable for capital punishment . Theft of private property worth fifty cents and helping the accused to abscond from prison , murder by weapon and culpable homicide were liable to capital punishment . Killing of pregnant women ,sinking of a child into the water after two months of delivery and demolition of the dame shall be dealt with by killing the accused person by dipping him into the water. In 1991, UN security council decided to implement a general embargo on all deliveries of weapons and military equipment to Somalia. The 46th session of Human Rights Commission of United Nations met from 29.1.1990 to 9.3. 1990.The international commission on jurist intervention the situation of Human rights occupied by Israel in the situation of human rights in China , Iraq and Paris .The commission passed several resolutions condemning Israel. Human rights abuses in occupied territory. The sub-commission expressed its it’s concern about the report such as disappearance and extra judicial execution continue to occur. In India Human rights group must be created for promotion , prosperity and global stability . The police beatings arrests and execution without trial and mass killing have been reported . This is the crime against humanity , there should be conscious , awareness of such rights amongst have naught and to achieve at the cost of the domestic legislation should be made in conformity with the international standard of such Human rights . The expensive nature of the procedural aspect of praying perform justice is a real stumbling block in achievement of justice. In Francis versus administration A.I.R 1981 SC 746,Subhash versus State of Bihar 1991 S.C.J 564 , Upendra versus State of Uttar Pradesh 1982 (2) SCC 308, versus Union of India 1987 SCC 156 and in Indra Singh Vs State of Punjab 1995 SCC Crl. 586 citizen for democracy versus State of Assam 1995 SCC Crl. 680 S.C. legal aid committee representing under trial prisoner has laid down that human rights are never safe in the country unless an activists judiciary with pragmatic humanism becomes the sentinel on quivive. In India, constitution really enables the Indian courts to accord due recognition to human rights. Fostering respect for international law is an obligation of the state under the Article 51 of the constitution. Therefore , it has become the duty of the courts of the land to take notice wherever there is a grave violation of the of human rights by the state , or by any authority under the state or an individual . In fact, in the year 1984, the Attorney General of India had appeared before the human rights committee and asserted that both the Supreme court and High Courts accorded priority to the cases of Human right violations and took speedy action to pronounce on them. They were normally settled in matter of weeks rather than months and the committee need have no fear that the remedies against the violation of human rights in India were anything less than very effective. However, all kinds of courts -even the Supreme Court -sometimes rejecting petition on gross violation of human rights , directly the persons concerned to file individual complaints for alleged offences in the ordinary forums situated in different jurisdictions. One can easily find in almost all the states in the Indian union and in the union itself are of excessive force and preventative steps resulting in death and destruction of ordinary people . Protects and struggle for bringing about social changes which are only natural in an iniquitous system are invariably met by the authorities voluntarily, resulting in violation of the dignity and rights of individuals. It is not therefore surprising that the Director general of Police is trying to justify cover upto the burning down of hamlets of the tribal on the ground of such people giving shelter and good to naxalites. Human rights dies in harness , but the outcome of the death becomes glory to fortified the concept of Human conscience. The individual stressing for the survival of such rights should be like Arjun to lord Krishna , But unlike Arjun he should never failed to encourage nor even stood in the needs of others another guidance. Like Socrates, he should depend on pure reasons , but unlike Socrates, he should be loved and respected by his country man . The quest of success be parallel to the courage of Napoleon , who on the battle after the battle, but he should never had an adverse water loo. He should have an endeavour for entering into the battle of independence as commander of the Army consisting of his family member with the spirit of brotherhood then only human rights may survive in the society. One should plunge himself into this freedom of struggle , otherwise the human rights can never survive. In the present context of the political set-up of the country having certain global phenomenon regarding involvement of the politician at large in the nefarious activities by gaining undue prominence without any moral obligation towards the citizens to protect their human rights , there should be the persistent efforts of the people for participating into political sphere as the article of
perpetuating corruption by mediocrity and thereby earning enormous money and power to be restricted for which the person willing to sacrifice their future for the betterment of the human rights of the public may come forward . The choice of the people in political arena for launching any political party into the power is just like of patting the snake or Cobra . Destiny is the result of consequences reflecting through individuals action. An urge may lead to big surge . Hell and heaven both exists in a society only the truth remains without any virtue , not with any voice. It is said that where the science ends , religion begins ; where the religion ends spiritualism starts ; where the spiritualism ends , a reality survives. These are the realities of the life in the process of evolution . the creative acts of the genius are always remain the subject matter of criticism as they are usually confronted with optionally stupidity of other fellow citizens. There is a delicate balance between public duty and personal honour . The numerical majority leads to the destruction of benevolent leadership . The human progress do not originate in the composite brains , but it is by the wisdom of the individual personality . Thus in the search of the better human rights provided to its citizens , there is necessarily some impediments in process of evolution and advancement of society because the protection is at large in favour of those citizens who are involved through their activities towards their towards destructive approach for advancement of the society , which is detrimental to the interest of the superior in command . Still there may not be any compromise with the human rights conferred upon an individual. Society is becoming more complicated. The democracy brings with it evils of its own system . It is difficult to search a really devotes person amongst the majority. Psychological reconciliation amongst fellow citizens to utilise every potential energy and to maintain co-ordination between fellow citizens. Civilisation begins in order , grows with liberty and ultimately perish in chaos , civil liberty are better and save as long as its enforcement do not bother others existence . Administrative system and judicial institutions are considered for vacillation of the purposes. There is always a conflict between opinion and rivalry of the interest. Time has come to expose the falsehood and fallacies through discussions in order to avert its global devolution. The remedy is speech, not enforced silence. The ship of progress is equipped with moral strength. We cannot remain silent spectator by observing the gradual disintegration of every institution in a democratic society. However , our potential will prove the power to save them and to resist against evil disasters . There is no steady advance towards higher condition of progress. The opinion persists to subordinate personal interest to social interest as the vested interest are always motivated to usurp power through any means even at the cost of its own interest. Sincerity is now slave of destructive activities and human rights are passing through the state of psychological retardation. Attitude of the public is mainly consist of denouncing the receptive norms. Moral damage is more terrible. The individual human rights enforcement is inadequately persists and thus the existing remedies are required to fresh appraisal. The entire fabric of the society is scattered and shattered , which is existing with galloping corruption. The proper assessment of legal and social condition is essential. Reason obeys itself while ignorance submits to whatever is dictated to it . Freedom does not mean abuse nor liberty is a license . The survival of the human rights and individual freedom requires obedience, endeavour, honesty , truthfulness, sacrifice , discipline and character . Implementation of the strong idea requires steadfast wisdom. Such idea should burst every chain , which tends to paralyse its efforts to push forward. Most of the people tends to see nothing nor inclined to observe. They do not take the notice of evil consequences as the simplest and the cheapest attitude is apathy. The ensuring success is mostly understood at the beginning due to strong contrast of public opinion. The principle of reasonableness , legally and philosophically enshrined under Article 19,has been covered in its widest amplitude with the expansion and expression of personal liberty under article 21, which is essential non arbitrariness .Article 14 has a pervasive potency and versatile quality; equilitarian in its soul and allergic to discriminatory dictates. Equality is antithesis to arbitrariness. Thus Article 14 like a brooding omnipresence , protects against the fanciful and oppressive attitude of the public authority (A.I.R. 1978 S.C Page 597). The right to live with human dignity is also derived from Article 39(e)(f), Article 41 and Article 42 , which provides the extension of the limits by providing protection of health and physical strength to the workers , men and woman and children against abuses . The opportunity and facility for the children to develop in healthy manner and to provide them educational facility and other human conditions of work and maternity relief are the safeguard provided on the concept of human rights in Bandhwa Mukti Morcha (1984) 3 S.C.C Page 161 and (1991) 4 S.C.C Page 117 . In the injury cases from accidents , the medical aid by the state government including the aid from private doctors is must and negligence by not providing such medical assistance may be required to be compensated by the state government (1989)4 S.C.C Page 286 and in S.C legal aid committee Vs State of Bihar (1991) 3 S.C.C 482. Delay in execution of death sentence (1989) 1 S.C.C 678 is embodied as violated of article 21 and as such right to pre-legal aid to incapable litigant for engaging lawyer is flow from right to life Khatri II Vs state of Bihar (1981) 1 S.C.C 627 ;(1986) 2 S.C.C 401. The comprehend right to shelter (1990) 1S.C.C 520 ; against handcuffing and parading under trial prisoners has been regarded as violative of Article 21 in Sate of Maharastra Vs Ravikant S .Patil (1991 ) 2 S.C.C 373; Right to education to the children upto 14 years subject to limitation of economic capacity Unni Krishnan Vs Union of India (1993)1 S.C.C 645 and the detains right to confer with the legal advisor and meet family members Francis Coralie Mullian Vs Administrator (1981) 1 S.C.C 608 , speedy trial as provided under section 309 Cr. P.C Hussainara Khatoon (IV) Vs Home secretary , State of Bihar (1980 )1 S.C.C 98 ; (1986 ) 4 SCC 481 and right to speedy trial Kadra Pahadiya Vs State of Bihar (1983)2 SCC 104 were
already considered to be the fundamental rights within the ambit and scope of Article 21 by the apex court . Non citizens are covered and state is oblige to protect their rights of life and liberty N.H.R.C Vs State of Arunanchal Pradesh (1996)1 S.C.C 742, Public trust doctrine for extending to natural resources such as rivers , forests , sea sources , air etc. for ecological balance under ecosystem. M.C Mehta Vs Klamal Nath (1997)1 S.C.C 388 shall preservation of once necessary commitment Surjeet Singh Vs State of Punjab (1996) 2S.C.C 336 ; and right to shelter food , water decent environment education medical care Chameli Singh Vs Sate of U.P (1996) 2 S.C.C 549 against custodian violence D.K. Basu Vs State of west Bengal (1997) 1 S.C.C 416, victim of rape be compensated with award against private party as right to live with humanity Boddhi Sattava Gautam Vs Shubra (1997) 1 S.C.C 490 , Right ot privacy against telephone taping (1997) 1 S.C.C 301 are further being included by the Hon’ble Supreme Court under Article 21. The field of human rights is now expanding after being defined under the protection of Human rights Act . There are other cases on the subject reported in A.I.R 1983 S.C 465 , (1980 ) 3 S.C.C 526 , (1992) 1 S.C.C , A.I.R 1986 SC991,(1997) 4 SCC 463 , (1987 ) 2 SCC 165 , AIR 1995 SC 31, 264 and 923 which are mainly concerned with human rights and democratisation of remedy of justice. Thus the human rights and fundamental rights are intractably related with each other . Fundamental rights are inviolable , inalienable and indestructible. The very purpose of such rights is to protect the society . Justice Shastri in Gopalan Vs State of Madras has laid down that the insertion of declaration of fundamental rights in a four front of the constitution coupled with an express prohibition against legislative interference and the constitutional sanction by means of judicial review is a clear and emphatic indication that these rights are to be paramount to ordinary state made laws. Everyone shall have the right to recognition every where as a person before the law . Under Indian constitution the non justifiable rights are incorporated which are not self executor and runs as fundamental in character in governance of Country. In Minark Mills case Hon’ble Supreme Court has categorically laid down that fundamental rights and directive principle of the state policy are to be constitute harmoniously against each other so that there should not be any conflict between them. In daily labours versus Union of India AIR 1987 S.C 2342 the government was asked to immediately pay all causal and permanent workers the same minimum wages as are applicable to permanent employees in order to implement the directive principles under Article 38 (2) . The fundamental rights are so classified as to impose limitation on state action under Article 14, 15(1), 16 , 18(1), 19, 20, 22, & 31. There are other provisions which are limitation on freedom of action of private individuals for example Article 15(2), 17, 18(2),21(1) and 24. There are some anomalies which are depreciated as under :i)If the fundamental rights guaranteed against state action are violated by a private individual , there is no constitutional remedy . The remedy in such situations by giving punishment to the offender is inadequate and disproportionate to the losses suffered by the ordinary citizens. ii)Article 15(2), 17, 23(1) and 24 referred to above are the social abuses and the prohibition are not directed exclusively against the state. The Judiciary has duty of implementing the constitutional safeguard that protects the individual rights and the ideal of judgement cannot be shirked. Our legislature have undoubtedly plenary powers , these powered have are controlled by the basic concept of written constitution . If we consider human being from the global perspective then the state is required to develop the personality of the citizen on all spare of life as the concept of human rights and fundamental rights are one in spirit and soul which are intractably related with each other . The journey of human rights jurisprudence could be traced starting from individual liberty and reaching towards the concept of human entitlement. The path of human rights does not run smooth and straight every day we stumble against the irrationality . Reason is rushed to one side and rights are trodden under foot . The idea of universal human rights in under assort from strong cultural political , religious and ethnic pressures , this is because of monstrous fiction which by inspiring false idea and vain expectation into man destined to travel in the obscure walk of laborious life serves only to exaggerate and embitter that real inequity can never be removed . Freedom survive to a point , when its start destroying in itself . Inequality is the common feature amongst the human being . The rights of equality is based on legal and social concepts in the society . A hierarchical society based on the idea of economic inequalities was founded on the distinction and the sex , whether based on a rituals or on our customs . In the ancient cosmological explanation in Vedas time, the punishment of the crime varied according to the caste. The murder of a Brahmin was considered as a mortal sin while slaughtering of a Shudra woman comes under the category of the minor offence which shows that the life of the Shudra was not worth living. The British colonial administrator introduced three important legislation , namely ; abolition of slavery in 1843 ; abolition of Sati system in 1829 and prevention of female infanticide in 1870 . There after the recognition of the free status by protecting the life o0f the woman , her internal tender female babies , recognising them with equality in birth of the human life was introduced through the administration of the justice . The lad control system prevalent in pre-colonial India was regarded as most important form of the wealth and the source of livelihood .This land was brought to the market and it could be sold . The new purchasers work overwhelmingly non -resistant and belonging to the occupation of the money landing , service and the law. Thus the Raitware system introduced which ultimately resulted into Zamindari process of cultivation. The poor became much poorer while the money lender became Zamindar and started ruling upon the pre-colonial residents as their slaves. After the freedom from the colonial rule , the constitution of India gave rise to the concept of equality
as to resolve the people , the basic rights relating to equality to sponsor a further goal to minimise inequalities of income and to endeavour to eliminate inequalities of status , facilities and opportunities . Article 14 sets out an attitude of mind , a way of life rather than a rule of law . According to right of equal equality it postulate that no citizens are above the law and as such the legislation shall not violate the right to equality of a citizen . However , the doctrine of equal protection of law was based on rational classification which forbids class legislation. There were a test of permissible classification and if it is founded on intelligible differential in relation to the subject sought to achieve then that classification was considered to be rational classification . By the introduction of Article 38(2) after 44th amendment of our constitution the state shall strive to minimise the inequalities in status , facilities on opportunity not only amongst individuals , but also amongst group of people engaged in different occasions. The revolutionary constitutional assumption into mere appeasement of status quo from where the power to the political and economical uplift in derived are known as ‘compensatory discrimination ‘, protective discrimination and in more generic terms reverse discrimination which means favouritism to a despaired group of recipient of extra favourable treatment . The constitution of India does not exclude government servant class but on account of Article 33 , such persons having selected under the armed forces might be deprived of their fundamental right under the garb of discipline forces . The civilian employees of the defence establishment such as cooks , chaukidars , barbers also comes within descriptions of armed forces and consequently the legislative becomes competent by notification to make rules containing or restricting their fundamental rights . This is a very peculiar situation especially on account of continued neglect of military affair and attempt to politics the members of armed forces like that of dismissal of the Chief of noble staff. The gradual decline of rights of the personal in the defence services much be stops through introspection as corrective measures , if we want to protect our country from the external aggression . The social recognition and healthy working involvement are within their respective zones under the frame works of equality class relating to the matter concerning human rights. There is no appeal against the verdict of court martial and there is no provision of bail to the convict of court martial , even it is available to all hardened criminals. The Supreme Court in Hussainara Khatoon case (1980) 1 SCC 81 has laid down that the unfortunate specimen of humanity awaiting trial for criminal offences are in jail being deprived of their freedom , but the Hon’ble Supreme Court has not taken into account the Hardships suffered by a soldier who is deployed for protecting the nation , to whom such right is not amenable under our constitution , whether it is not equally important to maintain a social discipline amongst the citizen by having a rational classification based upon intelligentsia , differential by framing a classification between bonafide citizens and under trial prisoner in the context of which discipline under the armed forces is required to observed. In Moti Ram case (1978) 4 SCC 47 the Supreme court has taken into consideration that against the sureties if under trial prisoner is not able to satisfy his solvency then they have to incur morose depths for securing their release . Thus poor kin dour legal judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs as they6 do not find a solution for their release and watch helplessly in a position of inequality with the non poor . The Hon’ble Supreme Court has not yet considered the hardships faced by members of the armed forces who are still governed by respective Army or Armed Force Act , which are enacted by British to suit their interests. In absence of social recognition in healthy working environment which still prevail that of days of British period , can be members of armed forces may feel pride to join the forces . There is a wound being chaffed again and again to the members of the armed forces before it can heel when the start comparing themselves from the rights available to a under trial hardened criminal who still after his conviction remained released on bail during the long span upto a period varying from 20 to 30 years when his appeal is heard on merit by the Hon’ble Court. Legal institution and justice “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 Justice is the end of government just to enjoy the peace of mind. Law is a means to an end. The essence of law is duty. It is a result of constraint struggle; an struggle of conflict with a view to attain peace and order. Law is the guaranty of condition of life in society assured by the state‘s power constrain. Thus the legal institution may provide the stability in the political sphere ,if we start thinking in the process of rectification of the present problem enunciated by theoretical approach and by the correct analysis of the sociological jurisprudence to promote sociological study in connection with the legal study is the fundamental right for preparation of legislation , which may improve by intelligent effort discovering the best means of furthering and directing such efforts . Thus it is very essential to learn the basic principle of jurisprudence and adopt a positive approach for imparting the justice to the individual litigant in the society. Jurisprudence means systematic knowledge of the law .It is known as science of law Thus the jurisprudence may be considered to be systematic arrangement of the principle of the law the principle of the law, the principle duly recognised or enforced by the public and legal institution in the
administration of the justice .The general rule of external human action enforced the sovereign political authority in the common law . Jurisprudence is concerned with fundamental conception , the sovereignty does not reside in the legislatures or executives ,but in the total aggregate of persons , who are members of state and are primarily represented by the existing body of electors. The instrumentality of sovereign is endowed with powers to be exerted with on behalf of the legislature cannot invoke the sovereign power of the people to override their will . Thus the sovereignty is vested in the people and not with the government to exercise their sovereign powers . If the government ignores the protection of social interests of the people then it has no authority to discharge its sovereign powers. Thus one has to find that the sovereign power is exercising its functioning in the ultimate interest of the people , which may attribute sovereignty to that entity . Jurisprudence is the eye of law. It is innovation of the legal invention for protection of Human behaviour, which maintain intense relationship for advancement of mankind . Thus the jurisprudence is the wisdom of law , which is the ultimate purpose in pursuit of the advancement of Human conduct , If we are not aware with the realities of the life and the problems of the society , we may not be discharging the duties of sovereignty . The legal institution may not serve its purpose if other considerations have the over riding effect and there after the habitual obedience from bulk of human society will completely be vanished . Thus there should be the attempt to change the law within a reasonable living stream , but it may not become stagnant pool of conflicting precedents. If the subject of the law is the science of the man to the political ethics , the legislation may perfectly regard to discharge its duty in the strictest sense The science is not limited to the study of external conduct. Thus the first requirement of law is to correspond with the actual feeling and demand of community . The guardian of the law have made no serious efforts to curb the number of cases and they could not be worked out inspite several assurance of the Hon’ble Court. The Hon’ble Supreme court in the S.P. Sampath Kumar Vs Union of India 1987 (1)SCC Page 124 , while dealing with the provision of section 28 of the Administrative Tribunal Act , 1965 , laid down that the exclusion of the High Court jurisdiction under the Article 226 and 227 of judicial review in service matters It was held by the five Hon’ble Judges of the Hon’ble Supreme Court concurring judgement that the said act would not be rendered unconstitutional .It was held that Article 323-A authorising exclusion of the jurisdiction must provide for an effective alternative institutional mechanism or authority for judicial review . The supreme Court has referred the decision of Minerva Mills Ltd. Vs Union of India A.I.R 1980 S.C Page 1789 wherein it was held that the judicial review is the basic and essential feature of the constitution and if the power of judicial review is abrogated or taken away the constitution will cease to be what it is. However it was held that if the power of the high court are curtailed from judicial review and it is vested in any other institutional mechanism or authority , it would not be violative of basic structure doctrine. The central administrative tribunal was given the jurisdiction parallel to the jurisdiction vested under Article 226 and 227 of the High Court. By virtue of such power it was held in the case of union of India Vs Paramananda A.I.R 1989 S.C Page 1185 that “ we must unequivocally state that the jurisdiction of the tribunal to interfere with the disciplinary matters for punishment cannot be equated with an appellate jurisdiction . The tribunal cannot interfere with the finding of the enquiry officer or competent authority , where there are no arbitrary or utterly perverse . It is appropriate to remember that the power to impose penalty on a delinquent officer , is conferred on competent authority either by Act of legislature or rules made under the provision of article 309 of the constitution . If there has been an enquiry consistent with the Rules and in accordance with the principles of natural justice , what punishment would meet the ends of justice is matter exclusively within the jurisdiction of the competent authority or the penalty can be lawfully imposed and is imposed on the proved misconduct , the tribunal have no power to substitute to his own discretion for that of the authority .This principle was consistently followed in Govt. of Tamilnadu Vs A Raza Pandian A.I.R 1995 S.C.Page 561 ,State of Tamilnadu Vs S . Subramanian A.I.R 1996 S.C Page 1232 and state of Tamilnadu Vs Thiru K.V Perurmal A.I.R1996 S.C page 2474 . The supply of th ecopy of the enquiry report to the delinqent seeking his explanation against the proposed action was considered after the case of Union of India Vs Ramzan Khan J.T 1990 (4) S.C page 556 , in the case of Managing Director ECIL Hyderabad Vs B.Karunakar reported in J.T 1993 (6) S.C page 1 was considered that it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him . It will not be proper to construe his failure to ask for the report ,as waiver of his right .However , this precedent remain valid upto the period when the supreme court in the case of S.K.Singh Vs Central Bank of India 1996 (6)S.C.C page 415 has laid down that the non supply of enquiry report is in consequential if no prejudice is caused. The Hon’ble Supreme court in the case of State Bank Patiala Vs S.K. Sharma reported in A.I.R 1996 S.C page no 1669 has laid down that an order passed imposing a punishment on an employee consequent upon the departmental enquiry ,while dealing with such case ,.The Hon’ble Court in case of a procedural provision mandatory in character if found to have waived or in such situation where the rule of Audi -Alteram partem has not been applied ,then the order of punishment cannot be set-aside on the ground of said violation until the test of prejudice may be called to the delinquent. Thus ultimately further curtailing the scope of judicial review as was being exercised by the central administrative tribunal was visualised during the course of arguments and in getting the judgement from the Tribunal to the delinquent Govt. Servant was visualised during this period .
The Hon’ble Supreme Court in the judgement reported in 1997(3) S.C.C page 261 L.Chandra Kumar Vs Union of India consisting of seven Hon’ble judges has now over ruled the earlier judgement of five Hon’ble Judges constitutional bench in Sampath Kumar case. It has been laid down on the basis on the basis of Keshavanand Bharti case decided by the power of judicial review vested in the High Court under the Article 226and 227 is part of the basic structure of the constitution . Judicial review comprises of three aspects ;Judicial review of legislative action , Judicial review of judicial decisions and judicial review of Administrative action tribunal is not a substitute for the high Court .Thus section 28 of the Administrative tribunal Act divesting the jurisdiction of of the High Court in relation to the service matter and article 323-A and 323-B of the constitution of this extent are unconstitutional . The Hon’ble Supreme court has laid down that until a whole independent agency for administration of all such Tribunals may not be set up and the entire system may not be languished and ultimate consumer of the justice under the supervision of the Administrative function may not be formulated by the Union of India .The system may carry on and the tribunal will continue to act like courts of first instance in respect of the areas of law which they have been constituted .Thus the tribunal on account of this judgement instead of exercising the power of judicial review as is being exercised by the High Court under Article 226 and 227 of the constitution of India is conferred with the jurisdiction of the court of first instance in respect of areas referred under sec 14 and 15 of Administrative tribunal Act , 1985 Now the question arises what is the significance of judicial accountability in respect of conflicting judgement of the Apex court which are meant to exercise the jurisdiction as that of the law of the nation. The first requirement of a sound body of law is that it should be correspond with the actual feeling and demand of the community. A law embodies beliefs that has triumphed in the battle of ideas and then translated themselves into action . The legal Institution of the knowledge of jurisprudence and the social requirement of imparting justice to the litigants requires that the exercise of the judicial precedents may not be top harror and unconscionable as it may loss site from the very basis for which the law is meant for we cannot confine ourselves to the formal legal; materials ,but we have to go beyond to find out now people actually live in the society . The centre of gravity of legal development lies not in legislative nor jurist’s science nor in judicial decision but in society itself . If we want the real law regulating the people , we have to become aware with the hardships suffered by the litigant people and for now the same is being is ignored as what is in actual practise governing the relations of the employer and employee , some limit has to be drawn because otherwise jurisprudence will dissipate its energy over too widen area . The requirement of the society in the present political set-up is not mere formality , but it requires an accountability of each and every public officer who are exercising their powers through quasi judicial functioning vested with them in dealing with the departmental proceedings against the delinquent employee. Till suitable restrictions in exercise of such discretionary powers vested with the superior authority may not be enforced through the proper legislation or administrative instructions and punishment of warning . Adverse entry, censor and stoppage of the increment may not be imposed against the superior officers exercising his power by making an abuse of misuse of his discretionary power, may not be imposed in the case of failure to discharge such obligation, when the Hon’ble Court or the administration found the lapses and dereliction of the duties on their part , the justice cannot be given to the delinquent ,simultaneously for frivolous litigation should also dealt with exemplary cost against the fraudulent litigants as fraud and justice never dwell together and fraud and deceit defend or excuse no man .The Hon’ble Supreme Court in the cases of S.P.Changalvaraya Naidu (dead) by L.R Vs Jagan Nath (dead) by L.R repoted in A.I.R 1994 S.C 853 ,inre, Indian Bank Vs M/s Satyam Fibres J.T 1996 (7)S.C. 265 and in the case of Municipal Corp. of Delhi Vs Kamla Devi A.I.R 1996 S.C page 1733 has dealt with this aspect and found such proceedings by way of sharp practice , which are designed to abuse process of law and impose exemplary cost against the litigants . It its the need of the time the very public office should have its accountability in respect of discharging its legal obligations and for that purpose , there should be the appointments of the officers and the legal experts instead of leaving the matter to the discretion of the administration only then the justice may be realised to the individuals from the courts of law. Mankind must either give themselves a law and regulate their life by it or live no better than to limit natural liberty of a particular man such a manner as they might not hurt anyone. A herd of wolves is quieter and more reasonable than the mob for one reason or other . According to Hindu Mythology , it is meant to regulate the human conduct amidst diversities of inclinations and desire so as to reconcile harmonically to the wishes of the individual wityh the interest of the community , while according to Mohhmadden law the purpose of the law is to promote welfare of he man , the improvement of morals by keeping the preservations of the life ,property and reputation. Its purpose is to encourage obedience by offer of reward and to discourage obedience by imposition of severe penalty . Thus the object of the law according to Hindu mythology in not to the punishment of the sins, but to prevent certain external results , while according to Mohammedan law , it is the obedience by offer of the reward and as such even the capital punishment is regarded appropriate in certain cases . The importance of the justice is the wisdom of the law , as the law is without doubt a remedy for greater evils , yet it brings with it evils of its own . The object of the criminal justice may be referred from the angle of its implementation in the society . The deterrent aspect ofd the punishment is to protect society .According to Hindu Mythology penalty keeps then people under control , penalty protects them , penalty remains awake when people are asleep , so the vice have regarded the
punishment as the source of righteousness. The preventive aspect concentrates on the prisoners to prevent them for offending again in future . The retributive theory is considered to allow the victim to take the revenge . Plato was the supporter of his theory to quote him ; “ If justice is good the health of soul as in justice is its disease , chastisement is its own remedy” Judicial punishment are serve as a mean ---- good for the society . Everyone gets what is his due according to his deeds. The reaffirmative theory with the object to bring the moral reform of offender which unfortunately has been adopted as that of criminal justice has assume undue prominence on the other aspects of the criminal justice . This is the reason why the crime has now perpetuated in every sort of walk of life. Let us examine the actual purpose of the legal institution in the context of providing justice to the individual . Society has now emerged with a complete deteriorated conditions of life. The existence of the individual citizen is on the stake in every walk of life . If we forgot the realities and start building the new structure on the basis of hypothetical presumptions ,we are bound to fail in administrative of justice . Now a day every proceedings based on the basis of evidence and what to say about the evidence when the very existence of the individual citizen is in itself deceptive. If we start adjudicating the cause on the basis of false evidence , the legal institution is bound to collapse . The custodian of the public interest are now playing the role of pirate . The robbery is committed with a licence by the Govt. servant . In such situation one should realise that it is only the accountability of the individual official in respect of his function , only then the society can survive . If we keep on having the expectations without rectification of the prevailing maladies , where the litigation are instituted with the falsehood and there is no accountability of the erring individual in such process by imposition of the proper punishment , justice can never be imparted from the court of law .There happens some shock thrilling experience in day to day life as that of every individual happens to think over the present set-up of the parliamentarian democracy in the context of the law enforceable agencies , who have become the pathetic observer of the surrounding over them . The day light robbery is committed of the passengers travelling inside the bus and when they proceed in the direction to lodge the report in the competent Police Station then the robber again enter and return back the looted articles under the protest that the valuable are of the lesser value then they ought to provide to the concern Police Officer as to get exoneration from the punishment . If the miscreant are threatened with the toy automatic Rifles and per chance the threatening is succeeded then next repercussion happens by the unwarranted query from the police officer regarding the factum of unauthorised weapon in the custody of the house keeper and thereafter on relieving the substance of the truth in respect of false threatening given by him , the police department from the scene and miscreants again comes and kill the house keeper , who is the informer ?If the execution of the crime is on the behest of the police then how the society may be protected and what the legal institution will help to solve the basic problem . Thus it is only the deterrent theory of punishment , which can provide protection to the society. LEGAL ETHICS , PROFESSION AND ADVOCATES Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hallmark. Sincerity of performance and the earnestness of endeavour are the two wings that will bare aloft the advocate to the tower of success. This is the reason why legal profession is regarded to be a noble one. “ A lawyer, without the most sterling integrity, may shine for a while with meteoric splendour, but his light will soon go out in blackness of darkness. It is not in every man’s power to rise to eminence by distinguished abilities. It is not in every man’s power, with few exceptions, to attain respectability, competence ,and usefulness. The temptations, which beset a young man in the outset of his professional life , especially if he is in absolute dependence upon business for his subsistence ,are very great . The strictest principles of integrity and honour are his only safety. Let him begin by swerving form truth or fairness. In small particulars, he will find his character gone - whispered away, before he knows it. Such a one may not indeed be irrecoverably lost; but it will be years before he will be able to regain a firm foothold . There is no profession in which moral character is so soon fixed as in that of the law; there is none which it is subjected to severer scrutiny by the public . It is well that it is so. The things we hold dearest on earth , our fortunes, reputations, domestic peace, the future of those dearest to us , nay our liberty and life itself, we confide to the integrity of l our legal counsellors and advocates. Their character must be not only without a stain, but without suspicion . From the very commencement of a lawyer’s career, let him cultivate above all things, truth, simplicity and candour. They are cardinal virtues of a lawyer. Let him always seek to have a clear understanding of his object ; be sure it is honest and right and then march directly to it. The covert, indirect and insidious way of doing anything, is always the wrong way. It gradually hardens the moral faculties, renders obtuse the perception of right and wrong in human actions, weighs everything in the balance of worldly policy, and ends most generally, in the practical adoption of the vile maxim, ‘ that the end sanctifies the means.’ Therefore an exacting standard is what is expected of an advocate. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable 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 professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct him - self 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 behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life . The regard for the legal and judicial systems In this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible . The casualness and indifference with which some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the members of the profession to introspect and take the corrective steps in time and also spare the courts the unpleasant duty. An advocate stands in a loco parentis towards the litigants. Therefore, he is expected to follow norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. Counsel’s paramount duty is to the client. The client is entitled to receive disinterested, sincere and honest treatment. Nothing should be done by any member of legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession. The importance of justice is considered in our ancient time , which is evident by the chapters enumerated in the code of Manu as under ; There were the best possible rules to promote the interests of both the king and the subjects. The contraction of debt- dispute relating to lending and borrowing , deposit- a person’s refusal on demand of thinks or money placed in his custody , Sale of property without ownership, illegal concerns amongst partners , resumptions of gift , deduction or less payment of wages or salary , non performance of or acting contrary to agreement , disputes of transactions , dispute between the owner and the tender of cattle , contest on boundaries , assault or severe , beating, harsh language or slander, theft larceny robbery , tress- pass or acts of violence , adultery , alteration regarding the failure of duties as man and wife , disputes of inheritance , gambling or laying thinks or conscious beings at stake in play were the points of dispute for adjudication on rival contentions. The king after considering the contention of several persons was never partial to any body with reference to the ancient law. Even in that time there were uniformity of procedure and the decision after due hearing and collecting the evidence . 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. Legal justice , with a humane mission, must update itself to legitimise 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., litigative 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. The bar and the bench are meant to provide mutual assistance for dispensing the justice. A prominent Bar is always considered to be of utmost requirement for imparting the duties assigned to the Judge while deciding the case before him. Without the adequate assistance of the Advocate , it is not possible to ascertain the factual controversy and the legal
provisions relating to such dispute and as such it is necessary that for this purposes the Advocate should discharge their duty. The duty of an Advocate , therefore, is not only for the interest of his client ,but also equally towards the court . Thus there is the need for regulating the proceedings of the court by assigning the respective duties on each other appearing and presenting the matter for adjudication before the court of justice. There are two categories of Advocates in the present time in accordance with the provisions of Section 16 of the Advocate Act. An Advocate may , with his consent , be designated as senior Advocate, if the Supreme Court or the High Court is of opinion that by virtue of his ability standing at the Bar or special knowledge or experience in Law, he is deserving of such distinction. Senior Advocates have also been put in the matter of their practice subject to such restriction as the Bar Council of India may , in the interest of legal profession may prescribe in this regard. Recently in the Govt. Gazette published on 11th December, 1999 , there are certain rules formulated for the purposes of designating an Advocate as the Senior Advocate. The “Standing at the Bar” is not simply the years of practice as an advocate , but it means the position of eminence attained by an advocate at the Bar by virtue of his integrity , sincerity, legal acumen and high ethical standards maintained by him inside and out side the court. The power of review of the decision taken by the High Court has also vested with the Court .It is desirable to designate a senior counsel only to those advocates who have proven their integrity , sincerity & legal acumen in the profession and noting has done for unbecoming the member of Noble Profession and in case something is found contrary to such ethical value on being the conduct of such senior advocate being noticed by the court , the aforesaid designation of conferring of an Advocate may be reviewed in exercise of the power vested with the Hon’ble Court. The aforesaid designation may not be given by the High Court for Practising as a Senior Counsel of Supreme Court only under such circumstances , the administration of justice may be done by the Constitutional Courts and the other Advocates may also learn the ethics of our profession . CONVERSION OF A RELIGION - THE BANE OF CASTE SYSTEM Each soul is potentially divine. This divinity is within one’s nature ; either external by work or philosophy or internal by worship or meditation or by both virtues. This is the goal of religion. There is a serious debate on the issue of conversion of Hindu to Christian , Muslims by providing the monetary assistance and other incentive through other Nations . The issue is not relating to human problems. However. It is high lighted for the purpose of political reasons . The purpose of the issue is not for espousing the cause for human values of a particular religion , but on the other hand, it is simply meant for creating more complications as to provide any cohesion between inter se religions . The purpose of the religion is to serve the society by co-operation between fellow citizens as to attain the gospel of life by peaceful co-existence . The object of every religion is to realise solidarity , peace and ultimately the spirituality . There is no bitterness in the objective of every religion. The approach of one individual adhering to some religion may differ from other . but when we stand on a higher strata we realise that every religion is based on a universal pattern as to find out the objective of one’s life and the power governing over the living creatures . Hindu were initially recognised for their inhabitation near the Indus valley . There were the migration of the individuals from other Nation . The natural climate of India was one of the best climate of the world . Thus the people started gathering near the river bank of Satlaj, Rabi, Jhelum , Vyas & Chinab in the Punjab province while other started gathering below the Himalayan valley on the bank of Ganga & Jamuna rivers . There was one significant remarkable feature in this religion that these people after coming from the deserted land have started worshipping to the creatures of the nature. The stones lying near the bank of river were regarded as the auspicious objects representing to the powerful God namely SHIVA . There was also the respect given to the animals like Peacock , Snake , Mouse , Monkey and Elephant . The fishes are also considered to be the auspicious. This was done in order to give respect to every creatures of the nature. The rivers were regarded to be the Goddess and the Mountains were regarded as providing the place for inhibition of the identity of the God themselves . This was done in order to save the nature, as the migrants from the other Nations have seen the result of fighting with the nature . This is now a universal factor that if one will not respect the ingredients of the nature , the existence of the very life of an individual may come to the stake . Thus the ideals behind the Hindu religion were based on the observations of the human being just to maintain an equilibrium in the universe . Lord Shiva was considered to be the God of providing justice while Lord Vishnu was considered to be the governing power and the Lord Brahma as the creator of the universe. There was a guiding factor always been considered to be superior which was the outcome of the observation based on the movement of the stars and planets in the universe. The Sun was always been regarded as the source of energy providing vigour , energy and the knowledge in the human being . Thus it was accepted and recognised as being identical to the spiritualism . By the passage of time , everything, which was considered to be of utmost importance like preserving the nature , gradually vanished . The personal interest started perpetuating inside the ideals of Hindu religion and the knowledge , which was based on the observation of our great saints
, was considered to be the individual’s property . The other individuals, who were not so learned, were treated with discrimination and seldom were provided humiliation by our so called guardians in the society . The preaching of the great saints was considered for being utilised to get the predominating affairs by some individuals over the other ordinary person and ultimately the Hindu religion was divided to many segmentation, which were subsequently classified as the caste system. There were certain deciple of lord Buddha , who after their migration , were settled in the different part of our nation. They have started serving the society by giving the different assignment to the individuals having their potential according to their ability. Those people, who were having the renouncing character and their physical existence were reciprocal to their mental calibre were recognised as KAYASTHA .The individual whose kaya (physical existence) became Astha (merged ) with the spiritual knowledge and likewise they have renounced the worldly affair were identified by such nomenclature . The other individual, who were doing different work according to their ability and learning , the same were given their name according to their nature of work. The individual performing auspicious function like Worshipping to the Idol inside the temple and were teaching to the other individuals in the society were recognised on the basis of their work as Brahman , the power which governs the individuals become a reciprocal character with them. The people started giving them the due respect as was commanded by every ingredient of the nature . There was a gradual trend to treat the son of the Brahman as the respected citizens due to their nature of work . Subsequently, the lust for power has over ridden the real objective for which they were commanding such respect, but gradually, by the passage of time, it was demanded from the others. The Kshatriya having vast expansion of their chest and there were strong Arms attached to their soldier , they were chosen for their martial character and were trained for fighting and to protect the religion. On account of their power they started taking the unscrupulous method for their up lift in the society and by their conquering power , they have started their predominating character being utilised for retaining them in power. The people doing some business were called as Vaishya and they have also taken such business for their inhabitation in the future generation. The other people were considered for serving to the society and they were identified as Backward Castes and amongst those were the Scheduled caste and the Tribes . Due to their nature of work , they were not permitted to perform other functioning like entering inside the temple and to educate their children. This has ultimately taken a recourse of originating a caste system on the basis of their heredity superiority and identity thereof , irrespective of the fact as to whether they are possessing the quality of their predecessors or not, but they have started imposing themselves to be the superior class of citizens. This has created a disharmony in the society and there were gradually a feeling of taking revolt against such predominating superiority by one class of Hindu society over other class. The purpose of the religion amongst the Hindu was finally vanished by such class discrimination and espousing of the caste system . The principle of co-existence remained no more in the society , but one class of the citizen has started exploitation to another class of citizen and finally there appears a feeling of disintegration amongst fellow citizens. At this juncture there was another menace prevalent in the society as to invite one invader to defeat his enemy amongst the upper class and as such every invader who has ruled over our Nation , has found a beneficial factor prevalent amongst its citizens fighting with each other on account of one reason or other. They gradually started conversion of the Hindu to their religion and started ruling upon our Nation by adopting a policy of divide and rule . Thus the conversion of Hindu religion is not based on any outer factor, but it is on account of our caste system. Let us try to think over again and again as to whether we want to live on the basis of the principle evolved regarding our co-existence with each other or we want to be ruled again by some other invader. The political arena has now witness a class politics not on the basis of the actual issues relating to the human problem, but on the caste basis by giving the go by to every ethic and logical perceptions simply on account of our caste affiliation. There are the instance when a person sitting on the top of the bureaucracy and occupying a constitutional post as the top most authority either in the political spare or even in judicial side, he is also seen to be tempted with the sudden impulse of having the caste affiliation as a predominating factor in governing the Nation . We have not taken any lesson from our slavery administered by some alien forces governing the nation and still we are acting like a spoiled gambler , who has loosen every penny of his belonging and his reputation in the society, but still he is continuing to play the gamble with his life due to caste affiliation . There happens to be a tug of war between one force of identity based on religious compulsions as to demoralise the conscience of one person over the other individual . No one is having any concern with the plight of the citizen fighting against the factor relating and responsible for natural calamity , but every one appears to be interested in adopting any means ; fair or foul and that too with a flavour of caste affiliation. Who has not become an intoxicant by tasting the juice of power but one should not consume the intoxicant under the garb of the caste affiliation as he may loose his own existence and thus be ruled out by some dictator for which the invaders have already made the prediction, while giving the power to these power intoxicant at the time of independence of our Nation . God give the good sense amongst our politician and the guardian of Hindu religion to wake prior to the time when it is not already too late. Steadfast Wisdom and Thought meditation
Identification of mind as an independent personality and the inability to enter into harmony and oneness is resulting in mental and physical suffering, the sense of obscruation and disappointment towards de-centrifugation of society. Desire is the bondage and subjugation with discord which has lost grip of the knowledge and submerged the mind in the gross materialistic approach. There energy gets depleted by object conscienceless leading to a state of starvation and ones consciousness. Gita says “He, whose mind is not shaken by the diversity Who does not hanker of the pleasure, and is free from attachment, fear and anger is called a sage of steady wisdom. He who is everywhere without attachment, that meets with everyone good or bad, neither rejoice nor hates, his wisdom is fixed. The mind of a person have steady wisdom and he's not to distressed calamity ,he is not affected by the afflictions arising from thunder, lightning, storm flood etc. and fear arising from venomous and ferocious animals. When he is placed in an affluent condition, he does not long for sensual pleasure . The body with the controlled mind posses pious understanding or evenness of mind. He does not rejoice in pleasure, not he averse to pain that may be fall on him. He has no attachment even for his life or body as he identified himself with the supreme self, being routed in the self. He will not praise anybody when latter does any good to him nor sensor anyone when one does him any harm. For when a man thinks of objects attachment from him arises from attachment desire is born; from desire anger arises ;from anger comes delusion; from delusion loss of memory ; from loss of memory the destruction of discrimination; from distraction of discrimination, he perishes as he is swept away by impulse of passion and emotion and he will act irrationally. One has to abandon all desires in the world, be free from attachment and latent impressions doing everything outwardly and thus playing one's part in the world. He has to cut the bond of attachment from all sides by the sword of knowledge. He should not play with life and should be loyal to ideals and must spiritualise out his thoughts, emotions and actions. Soul requires solitude. In order to get peace of mind has to become calm. The physical existence must be free from all thoughts daily for sometime and during the period of wisdom dawns. Thought meditation, one may study his true internal nature and realise himself as spirit of freedom, spirit of unity, spirit of immortality. Live in truth by becoming truthful, love all, for love is unity, by reflecting upon thoughts. The man bondage may perpetuate slavery. Be aware of lust, breed, anger, passion, hatred, jealousy and the unlimited wants of five senses. They are enemies. There is no ill spirituality without love. Spiritual realisation automatically make us love everybody. Truth and universal love raise us to a spiritual status and we can see the divine life. This is the highest vision which comes when he realise God in his heart and surrender himself completely to him and thereby wiping out his ego sense. Purity truth and constant remembrance of God is what is needed to know God within us. Grace of God comes by practise and in pure mind otherwise passions will create havoc. Desire move the senses. Tapas cuts the senses annihilates desires. Tapas is worship, meditation. Thus for controlling the bondage of the desired, one has to adopt the path of spiritualism. In this manner with there will not be required any thought control nor the restrictions can be imposed upon such individual who has given his oneself to the omnipotent without feeling any discontentment by the swept of impulsive notions. This is required for the rectification of prevailing maladies in the society. An assessment of enthusiasm Self realization and thought meditation are correlated and both of them lead an individual to search the goal of his life. The route he chooses depends upon the decision he makes but the decision making process is not within the competence of an individual. There are so many guiding principles and role of inheritance is so crucial that the person who swept away with a desire to search the gospel of life ,may consider himself that he has lost his relevance in the process. An urge may lead to big surge .The innovation and the ideals play a vital role for the advancement. Some people are very optimistic and sometime they appear to become over-enthusiastic. The individuals use worship the rising sun and as such since an interaction with another individual having an innocent behavior, may always be regarded as one of the associates. Life is threefold present ;the present having an experience, past with a memory and past with a memory and a future with an expectation .Every expectation is not in anticipation nor is depended upon the circumstances. The harmonious construction is required to be given effect for analysing the truth amongst the 3 dimensional reflections. Thus the individuals who is associated with an optimistic personality always try to germinate confidence and simultaneously an introspection with retrospective effect. Throwing a stone up on the Moon may not be considered as an intelligent step but without throwing the stone in the upward direction, the heights attended by the trees in the Garden may not be crossed. It is only matter of appreciation and understanding by the individuals as to whether he may understand that the fellow is throwing the stone to cross the barrier or to some impossible distances. However even after being conversant that the person may suffer the innoclasm towards his objectives in life, but the said Individual’s approach becomes a guiding factor to other associate.
The father of the individual enthusiastic personality may seldom be not able to cope up the requirement of adjustment in life with his son but certainly there is an implied appreciation which is not demonstrated but can be felt with his behavior. Thus the child who understand that it is on account of close affinity that the matter of appreciation become an unnecessary formality and this creates a misunderstanding. People worships to God as he is unknown as usually inaccessible. Likewise the enthusiasm of an individual is indirectly related with the destiny and incase if the Luck permits, there is every possibility of achieving the success. Who will not like to become conversant with an important personality and likewise people outside may start appreciation with a critical assessment regarding your performance. Thus neither the disappointment is required nor there is any need to provide undue prominence to such negative approach. Though thy path be dark but there is a guiding factor which is given to the people by the nature and not by the individuals. Thus one should not have taken into consideration on that what the others think about you but you should think what you think of yourself. An Equation of Life and it’s religion This universe, in truth, is nothing. There were no heaven and no hell, nor the same in existence at present. Every action has it’s own repercussion. This was the comedy of the error with an amplifier, having the co–incident, that the life is originated in this universe. There was no sign of existence after the creation of earth. The sun was having its radiation on the newly created planets after disintegration. Thus the earth was also having the turmoil of uncertainty in the process. Gradually the heat transmitted in the atmosphere. There was the creation of the gases. The nitrogen, helium and ozone gases were emitting from the earth. There was the nuclear fusion and nuclear fission. The molecules were disintegrated into the hydrogen particles and likewise there was also the creation of oxygen from the ozone gases. After unification of the molecules of oxygen with hydrogen, the water came into existence in the form of the gases. There was a period of transmission of energy in the atmosphere. However, gradually the preservation of the heat could have only been regulated. The coverage was provided to the universe from the outer periphery of ozone layer on the outer side of the atmosphere. Thus by getting the protection through the outer radiation from the infra red and ultra violet rays, there was the cooling effect in the atmosphere. This process has gradually converted the steam of the water particles situated in the atmosphere to the condensation process. By having the rain of the water and other chemicals from the internal surface of the atmosphere, there was the accumulation of the water every where. However, subsequently due to the emission of the particles from the lower surface of the earth, there was again the vapor formation. These processes remain operative for thousands of millions years before when as a mere co-incidence, the water was accumulated in the ocean of the earth. There was no such rain as were in existence, but the mountains started from where the process of evaluation generated. There was the alga formation on the mountains and ridges and similarly there was a jelly formation in the water due to friction of the molecules. Thus the live molecule was created in side the jelly like substance in the water and thereafter the formation of the ameba taken place on this earth. The theory of evaluation of life is the subsequent process. The vital question for consideration for our human being is to the effect as to whether the same process is a mere co-incident at the time of the birth of an individual. There is the generating of the heat in the process of life when the idea is exchanged. These ideas ultimately become the process of reproduction. There is the combination of the molecule again in the similar process. Thereafter the creation of the zygote inside the ovary of the female. Thus if we consider the life being originated from the ocean, whether the penetration of the sperm in the egg is also the starting point of the theory of reproduction. Ultimately the life is converted into a reality when the living organism took place in the process. We forget that the existence of our life is similar to the creation of the universe. Thus we start thinking for our survival. The struggle is of no significance because it continue for some period and thereafter it vanishes from its origin and thereafter the human being realizes that his existence is for the time being. This was a mere co-incident that a particular ‘Y’ chromosome was penetrated in the egg and meet with ‘X’ chromosome. Thereafter the process of life started. The shape and the identity of the person are concentrated on particular genes. When our existence is of such a small molecule from where we can get ourselves being recognized with some identity. This is the illusion of life when we claim for the recognition of our existence. The creation of the false existence is a direct assault on the identity of the power that has created our life. Even if we deny taking into our identity, the very existence of God, but still the value of the life cannot be put to any doubt for always being a controlling factor over the living being. This is the starting point of our wisdom. The moment we give up to our intelligentsia through logical perceptions by converting it from analysis by observation, the reality of truth comes to the memory. This process ultimately lead to an individual from committing any sin as the repercussion of the same may be detrimental to one’s own existence. No body will like to loose his own existence for the mere satisfaction of his egoistic nature. Thus ultimately we use to connect ourselves from some controlling power and thereafter the existence of God comes to our conscience. This is the ultimate truth of life. History of man is one long search for God. However, we cannot subscribe to the theologian’s theory of God. Life is the image of God, which is essentially a spiritual being. If the equation of life is taken
into consideration, there can be no doubt that the man cannot eternally remain forgetful of his spiritual nature. Then he will find out his self. Time is having three-dimensional Picture, in which, there are certain memories of the past having it’s permanent impact on the way of thinking; the present as we have visualized it from such angle; and the future with our expectation to be fulfilled. Thus in this process, we may side-tracked from our inherent characteristics and may start challenging the time-honored customs. The reckless spirit of defiance of well-established sacred principle becomes the way of life. There is the open crusade against the religion. There is no religion equal to it’s potential, in which, there may be compassion for the animals and birds, truthfulness in the behavior and love for the fellow being. Thus the religion is based on the philosophy of brotherhood and spiritual cult of life. The places, where there is the program organized to slaughter the animals, as that of giving the sacrifices to the deity, these are not the places of religion but these are slaughterhouses. I have known the truth, but you can not know it. This is the preaching of every prophet. There lies their greatness. Thus they bring down the highest truth to the door of every man but never allow it to reach to such man. This is the religion of life. The true religion, which may be achieved through spiritual knowledge, seeks the truths of the inner world. Bondage is of the mind, and freedom also is of the mind. A man is free if he constantly thinks and feels: I am a free soul. Life and death are in the mind of the man. Thus one should have a burning faith in God. He may feel that he has no bondage .He will fellow the instruction of the God. The greatest virtue of Law The greatest virtue of Law is in its adaptability and flexibility. Law made for the society and there fore it has to be applied, depending upon is situation, for the benefit of society (Balbir Kaur Vs. steel authority of India ), (2000)6 SCC 493. “Law is a social engineering to remove the existing imbalance and to further the progress , serving the needs of the Socialist Democratic Bharat under the rule of law. The prevailing social conditions and actualities of life are to be taken into account in adjudging whether or not the impugned legislation would sub-serve the purpose of the society. (Ashok Kumar Gupta vs State of U.P., (1997) 5 SCC (L&S)1299:. “Law is a means to an end and justice is that end. But in actuality, law and justice are distant neighbours; sometimes even strangely hostile. If law shoots down paralyses development, disrupts order and lawlessness paralyses development, disrupts order and retards progress. High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil,(1997)6SCC339: 1997 SCC (L&S)1486: AIR 1997 SC 2631: (1997) 4 SLR 321: (1997) 2 LLN 470: “Law has been variously defined by various individuals from different points of view and no wonder there is no unanimity of opinion regarding the real nature of law, by various writers.” ‘’A law is a rule of conduct, administered by those organs of a political society which it has ordained for that purpose and imposed in the first instance at the will of the dominating political authority in that society in pursuance of the conception of justice which is held by that dominating political authority or by those whom It has committed the task of making such rules’. (Keeton) “A set of rules imposed and enforced by a society with regard to the distribution and exercise of power over persons and things”. (Vinogradoff) “Law is the command of sovereign, containing a common rule of life for its subjects and obliging them to obedience”. (Erskine) “Law is the body of principles recognized or enforced by public and regular tribunals in the administration of justice.” (Pound) “The law of the state or of any organized body of men is composed of the rules which the courts-that is, the judicial organs of that body- lay down for the determination of legal rights and duties”. (Gray) “Law is that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of Government”. (Wilson) “Law is the system of rights and obligations which the State enforces”. (Green) According to Salmond,” Law may be defined as the body of principles recognized and applied by the State in the administration of justice”. Courts may misconstrue a statute or reject a custom. It is only the ruling of the court that has blinking force as law. The highest court of a State willfully misconstrues an Act of the Legislature, the interpretation put on the Act would be law as there is no higher judicial tribunal with jurisdiction and authority to reverse it. The result is that the true test of law is enforceability in a court of law”. According to Justice Holmes,” The life of law has not been logic. It has been experience. The law will become consistent when it ceases to grow. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious; even the prejudices which judges share for their fellowmen have had a good deal more to do than the syllogism in determining the rules by which man should be governed. The law embodies the story of a nation’s development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been and what and what it tends to become”. Again, “Logic gives science of law resides in the elegantia-juries or logical cohesion of part with part. The truth is that the law is always approaching and never
reaching consistency. It is for ever adopting new principles from life at one end and it always retains old one from history at the other. It will become entirely constant only when it ceases to grow” The fast changing scenario of economic, social order with scientific development spawns innumerable situations which the legislature possibly could not foresee.The delegate is entrusted with power to meet such exigencies with in the in built check or guidance and in the present case to be with in the declared policy. So the delegate has to exercise its powers with in this controlled path to sub serve the policy and to achieve the objectives of the Act . A situations may arise, in some cases where strict adherence to any provision of the statute or rules may result in great hardship, in a given situation, where exercise of such power of exemption is to remove this hardship without materially affecting the policy of the Act, viz., development in the present case then such exercise of power would be covered under it. All situations cannot be culled out, which have to be judiciously judged and exercised, to meet any such great hardship of any individual or institution or conversely on the interest of the society at large. Such power is meant rarely to be used.(Para 18). Consumer Action Group v. State of T.N.,( 2000) 7 SCC 425. “In the interpretation of the Constitution, words of width are both a framework of concepts and means to achieve the goals in the Preamble. Concepts may keep changing to expand and delongate the rights. Constututional issues are not solved by mere appeal to the meaning of the words without an acceptance of the line of their growth. The Judges, therefore, should respond to the human situations to meet the felt necessities of the time and social needs; make meaningful the rights to life nad give effect to the Constitutions and the will of the legislature. The Supreme Court as the vehicle of transforming the nations life should respond to the nation’s needs, interpret the law with pragmatism to further public welfare to make the constututional animations a reality and interpret the Constitution broadly and liberally enabling the citizens to enjoy the rights. (Ashok Kumar Gupta v. State of U.P., (1997)5 SCC (L&S) The principle is that all statutory definitions have to be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a some what different meaning in different sections of the Act depending upon the subject or context. That is shy all definitions in statutes generally begin with the qualifying words similar to the words used in the present case, namely” unless there is anything repugnant in the Act where the meaning may have to be departed from on account of the subject or context”. Thus there may be sections in the act where the meaning may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in the definition section, namely “unless there is anything repugnant in the subject or context”. In view of this qualification, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words “under those circumstances”. Whirlpool Corpn.v. Registar of Trade Marks,(1998) 8 SCC1. “By interpretation or construction is meant”, says SALMOND,”By which the courts seek to ascertain the meaning of the Legislature through the medium of authoritative forms in which it is expressed”. “Interpretation differs from construction in that the former is the art of finding out the true sense of any form of words; that is, the sense which their author intended to convey; and of enabling others to derive from them the same idea which the author intended to convey. The drawing of conclusions, respecting subjects that lie beyond the direct expression of the text from elements known from and given in the text; conclusions which are in the spirit though not with in the letter of the law.” (AIR 1963 SC 1760,p. 1794) “In common usage interpretation and construction are usually understood as having the same significance”.(211 US 370,p.386) “The duty of judicature is to act upon the true intention of the Legislature-the men or sentential legis”. (AIR 1966 SC 346 ,p.348) “The function of the courts is only to expound and not to legislate. The numerous rules of interpretation or construction formulated by courts are expressed differently by different judges and support may be found in these formulations for apparently contradictory propositions.” “The Legislature can no doubt amend or repeal any previous statute or can declare its meaning but all this can be done only by a fresh statute after going through the normal process of law making “. “Surprise to find that an open platform having no all or roof is a building”.(AIR 1966 SC 991) “ The building of High Court is a ‘structure’ may itself be debated. Unsuccessfully argued in the House of Lords that a large substantial permanent two stereo building was not a structure.(AIR 1921 PC 240) “The question is essentially one of degree and that it is impossible to fix any definite point at which ‘maintenance’ ends and ‘repair’ begins”. There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.” With in or outside the purview of the relevant words of the statute, after laying down a working line or more appropriately some general working principles. (AIR 1960 SC 610) Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. Information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising future.
“If the word used n a fiscal statute is understood in common parlance or in the commercial world in a particular sense, it must be taken that the Excise Act has used that word in the commonly understood sense. That sense cannot be taken away by attributing a technical meaning to the word. But if the legislature itself has adopted a technical term, then that technical term has to be understood in the technical sense. In other words, if in the fiscal statute, the article in question falls with in the ambit of a technical term used under particular entry, then that article cannot be taken away from that entry and placed under the residuary entry on the pretext that the article, even though it comes with in the ambit of the technical term used in a particular entry, has acquired some other meaning in market parlance.(AIR 1997 SC 3414) “The judiciary can never regain its lost respect and esteem if faith in judiciary can never regain its lost respect and esteem if faith in judiciary is forfeited. The conduct of every judicial officer should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity. If he tips the scales of justice, its rippling effect would be disastrous and deleterious. High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil.(AIR 1997 SC 2631) “The theory of Sovereign power which was propounded in Kasturi Lal’s case (AIR 1965 SC 1039) has yielded to new theories and is no longer available in a welfare State. It may be pointed out that functions of the Govt. in a welfare State are manifold, all of which cannot be said to be the activities relating to exercise of Sovereign powers. The functions of the State not only relate to the defense of the country or the administration of justice, but they extend to many other spheres as, for example education, commercial, social, economic, political and even marital. These activities can not be said to be related to Sovereign power.” Smt. Hanuffa Khatoon, who was not the citizen of this country but came here as a citizen of Bangladesh was, nevertheless, entitled to all the constitutional rights available to a citizen so far as “Right to Life” was concerned. She was entitled to be treated with dignity and was also entitled to the protection of her person as guaranteed under Art. 21 of the Constitution. As a national of another country , she could bot be subjected to a treatment which was below dignity nor could she be subjected to physical violence at the hands of govt. employees who outraged her modesty. The right available to her under art. 21 was thus violated. Consequently, the State was under the constitutional liability to pay compensation to her. The judgement passed by the Calcutta High Court, therefor, allowing compensation to her for having been gang raped, cannot be said to suffer from any infirmity.” “Rape was committed on a woman by railway employees and a practicing advocate of a High Court filed a petition under Art. 226 which included not only the relief for compensation but many other relief’s as, for example, relief for eradicating anti-social and criminal activities of various kinds at Howrah Railway Station and the true nature of the petition, therefore, was that of a petition filed in public interest, the writ petition was maintainable. In such a case, it could not be said that she could not file that petition as there was nothing personal to her involved in that petition.” It has been held in case of Chairman, Railway Board v. Chandrima Das (AIR 2000 SUPREME COURT 988)- “The employees of the Union of India who are deputed to run the Railways and to manage the establishment, including the Railway Stations and Yatri Biwas, are essential components of the Govt. machinery which carries on the commercial activity. If any of such employees commits an act of tort, the Union Govt., of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees. It was so when instant case was case under Public Law domain and not in a suit instituted under Private Law domain against persons who, utilizing their official position, got a room in the Yatri Niwas booked in their own name where the act complained of was committed. However in case of Hussain v. State of Kerala, (2000) 8 SCC 139.The appellant is unlawfully deprived of his personal liberty for such a long period of 5 years on account of inadequate legal representation andWrong conviction and thereby overlooking the aforesaid facts and the legal position. We acquit the appellant and direct him to be set at liberty forthwith. In this case, we are not considering the question of awarding compensation to the appellant but he is free to resort to his remedies under law for that purpose. Similarly in case of death by electrocution, the Maintainability of the writ petitions is denied on the ground of Disputed questions of fact involved in case reported in (2000) 4 SCC 543. In the book written by our Uttaranchal Pradesh chief Justice Ashok A. Desai namely “ Justicing the people “- “Judiciary is independent. It does not mean judges are equally independent. They are bound by the limitations of law . Common man may not be able to see it. The judicial system has to maintain certainty and uniformity in the discharge. If the judges are allowed to settle the extent of justice according to their notion, or concept, then the system cannot achieve either of them. Intellectualism has more diversity. With the Judicial Activism, justice will vary according to the concept of individual Judge. That will cause a severe damage, not only to the system, but also to very foundation of justice. It will also create difficulty in guiding the Society. Law is always notified for the guidance of public but notions of justice of a Judge are not visible. This creates jeopardy. It would lead to, not only the Government by judiciary but by the Judges. The Democratic Society will never approve this.”
Whether a Constitutional Remedy lies against the fraud The legal maxims:- “Fraus et jus nunquam cohabitant” ( Fraud and justice never dwell together) & “ Fraus et dolus nemini patrocinari debent” ( Fraud and deceit defend or excuse no man). These maxims have been reiterated in the decisions of Apex court. It has been observed that it is in the inherent powers of superior courts to quash such proceedings, which have been secured by playing the fraud or misrepresentation. There is no other remedy being available to aggrieved party. The power conferred under the extra ordinary jurisdiction of Hon’ble High Court under Article 226/227 of the Constitution may also be exercised to defeat the wrongful gain secured by playing the fraud from the property of innocent person. There are very few instance when the Hon’ble Courts have exercised their inherent jurisdiction to secure the justice for the litigants by seeing the abstract truth, hidden behind the surface through graceful foresight looking into the substance. In this back ground, the decision given in writ petition no. 6370 of 2001 ( Amar Singh and another versus Collector/ District Magistrate, Kanpur Dehat and others) decided on 19.4.2001 is a remarkable judgement on this point. The Hon’ble High Court has not only overlooked the mistake in drafting the incomplete factual averments in the interest of providing substantial justice to the petitioners. The particulars required for the purposes of effective adjudication of the controversy involved were missing to a larger extend in the Writ Petition. However the merit of the case has been dealt with in the present case. The Hon'ble High court has further exercised the extra ordinary powers to provide the substantial justice to the illiterate villager Lalloo Lal, whose six plots measuring more then three Bighas of agricultural land were arbitrarily sold in auction sale for the alleged recovery of Bank Dues for a nominal price of Rs.40,000/- in the Illegal manner with malafide intentions for extraneous purposes. It has been observed by the Hon’ble Courts that “where the power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context ‘ in good faith’ means ‘for legitimate reasons’. Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated”. The judicial review is the heart and soul of the constitutional scheme. The judiciary is constituted the ultimate interpreter of the Constitution and is assigned the delicate task of determining the extent and scope of the powers conferred on each branch of the Government, ensuring that action of any branch does not transgress as limits. The Hon’ble Supreme Court has also held that ‘ Pithily put, bad faith which invalidates the exercise of power- sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions- is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations out side those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion’. The judiciary in India also possesses inherent power, especially under section 151 CPC, to recall its judgement or order if it is obtained by fraud on Court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent power are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court’s business. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court. Similarly, where a party misleads the court or the court itself commits a mistake, which prejudices a party, the court has the inherent power to recall its order. The court has also the inherent power to set aside a sale brought about by fraud practiced upon the court or to set aside the order recording compromise obtained by fraud. “ Charges of fraud and collusion like those contained in the plaint in this case must, no doubt, be proved by those who make them – proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences. By no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unraveled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dexterous knave would escape.”
“ Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgement or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgement/ decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior, or inferior. It can be challenged in any court even in collateral proceedings have been reiterated. “ Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the Courts have been held to be inherent power to set aside an order obtained by fraud practiced upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order”. Therefore, no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. Amar Singh and Lalloo Lal, the loanee and the guarantor, who happened to be the son and father respectively. It was alleged that neither any public notice was issued, nor any intimation was given to Lalloo Lal, the guarantor, the father of Amar Singh, but even then, his landed property of Khata no. 242 having plot nos. 73-kha, 74, 1042, 1043, 1066 and 1112 to the extent of half of its share costing the value of the landed property in approximately 3 Lac was put to auction sale in favour of Maharaj Singh for Rs.40,000/-. It was alleged in the writ petition that Collection Amin namely Dhirendra Singh remain in collusion with auction purchaser, being his close relative. The information was received by Lalloo Lal ,when the mutation proceedings for recording the name of Maharaj Singh, were initiated and notice were issued to appear before the Tehsil authorities on 13.1.2001. The prayer was sought for issuance of writ of certiorari calling for records. The alleged auction sale was taken place on 27.12.1999 in favour of Maharaj Singh. It was alleged that without observing the mandatory requirements of Rule 279 to Rule 282 of the U.P.Z.A.L.R.Rules, the entire sale proclamation done in respect of landed property and its confirmation dated 5.7.2000, which was virtually a fraud committed by the Tehsil authorities. The petitioners Amar Singh and Lalloo Lal have also prayed from restraining the Tehsil authorities from recording the mutation of the name of Maharaj Singh over the agriculture plots belonging to Lalloo Lal to the extent of its half share and to return the excess amount. Admittedly the entire proceedings in pursuance of the aforesaid transactions was done for making the auction sale. The same were a sheer abuse of process. Apart from this, in the aforesaid transaction of the 6 plots of khata no. 242 belonging to Lalloo Lal, although a sum of Rs.40,000/- having being paid by Maharaj Singh to Tehsil authorities on 27.12.1999 ,out of which only Rs. 16,481/- was credited to the Account of Amar Singh at Kshetriya Gramin Bank, while the balance amount of Rs.23,519/- was still kept in the treasury of Tehsil Rasoolabad. It was also admitted by Kshetriya Gramin Bank that at Jaitpur Branch Rs.5000/- and Rs.10000/- had already been credited in the aforesaid account on 1.7.2000, while in other account of Amar Singh at Aunha Branch an amount of Rs. 14,900/- was deposited by Dhirendra Singh Collection Amin on 10.6.2000. The two account no. DL 561 in Aunha branch and another account no. 729 at Jaitpur branch were belonging to Amar Singh, while account no. DL665 was belonging to Lalloo Lal in Jaitpur branch. There were dues to the extent of Rs.13853/-, which were lying against Amar Singh regarding account no. 729 , while total sum of Rs. 22,058/- were lying against Lalloo Lal regarding his account no. DL-665. Thus after adjustment of the amount to the sum of Rs.23,519/lying with the Tehsil authority, some dues were lying against the petitioners. Even if the dues are made clear, the outstanding amount was remaining in the tune of Rs.12, 392/- for which Amar Singh and Lalloo Lal have made a statement that they will deposit the remaining balance within the stipulated period. However, the controversy involved in the present writ petition was pertaining to the shame transaction. As per averments made in counter affidavit filed by the Tehsildar, Rasoolpur, Kanpur Dehat, Amar Singh had obtained two separate loans, one from Bank of Baroda, Kashipur, District- Kanpur Dehat on 18.6.1986 in the tune of Rs.20, 000/- and another Bank loan from Kanpur Kshetriya Gramin Bank, Jaitpur, Kanpur Dehat on 11.11.1988 in the tune of Rs.6,000/-. Amar Singh failed to deposit the aforesaid loans as consequences of which the recovery certificates were issued for realization of remaining loan dues amounting to Rs. 18,264/- dated 20.5.1993 and Rs.11,717/- dated 6.12.1993 respectively by both the banks. The father of Amar Singh namely Sri Lalloo Lal and one Sri Ram Dayal stood as guarantors towards the loan taken from Kanpur Kshetriya Gramin Bank by Amar Singh. Despite the citations to deposit the aforesaid loans issued against Amar Singh by the Tehsil authorities on 4.2.1994 and 12.12.1995, the loan was not deposited and thus the citations were issued against the guarantors Raj Kumar towards the loan dues of Bank of Baroda and two separate citations were issued against Lalloo Lal and Ram Dayal to deposit the loan dues of Kanpur Kshetriaya Gramin Bank on 27.2.1997 collectively.
In furtherance of the said recovery procedings, the Tehsil authorities on 25.11.1999 issued attachment and sale of landed properties of guarantors Lalloo Lal and Raj Kumar. Subsequently it was alleged that auction sale of landed property of guarantors have taken place. One Maharaj Singh s/o Mahadeo Singh r/o village- Saraiya, Tehsil- Akbarpur, Kanpur Dehat purchased the landed property of Lalloo Lal for Rs.40,000/-, while the landed property of Raj Kumar was auctioned for realization of the loan dues of Bank of Baroda , which was also purchased by Maharaj Singh for a sale consideration of Rs.20,400/- on 27,12,1999. An amount of Rs.14,900/- was paid to Kshetriya Gramin Bank on 10.6.2000, while Rs.1490/- was adjusted towards the collection charges, Rs.84/towards auction expenses and Rs.7/- towards the cost of notice. The remaining amount out of the auction sale of Rs.40,000/- to Maharaj Singh from the property of Lalloo Lal amounting to Rs.23,500.90 Paise was lying deposited with the Tehsil authorities. Thereafter the Kshetriaya Gramin Bank on 10.6.2000 issued NO DUES Certificate against Amar Singh. However, out of the sale consideration of Rs. 20,400/- towards the property belonging to one Raj Kumar, loan dues of Bank of Baroda amounting to Rs. 18,498/-. They were paid to the Bank of Baroda and after deduction of Rs. 1850/- towards the collection charges, Rs. 85/- towards the expenses in conducting the auction sale and amount of Rs.7/- towards the cost of notice. However, there was no prayer for quashing the auction sale pertaining to the landed property belonging to other guarantor namely Raj Kumar and thus this was not the subject matter of the controversy in the writ petition. It is well-settled proposition of law that the extra ordinary power conferred under Article 226 relating to commercial matters may apply with reluctance, but subsequently the law has under gone a change by the subsequent decisions. The present case is not a mere example of violation of an ordinary right of a citizen. Where the public functionaries were involved in such a malafide and colourable exercise of power that may abridge or abrogate the right of livelihood of a citizen duly guaranteed under Article 21 of the Constitution, the remedy will still be available under the public law notwithstanding that a suit could be filed for declaring the aforesaid transaction as void. This remarkable judgement is an exemplar of a verdict given in a socially sensitized manner containing a complex exception to show the people beacon light in favour of poor uneducated exploited mass who need a helping hand from the legal profession and also from the Hon’ble Courts. This is an attempt to prevent contagious virus of corruption, which is opposed to democracy and social order. Unless this corruption is nipped in the bud that is likely to cause turbulence by a dreaded communicable disease, the same will crumble the socio political system under its own weight. Law, order, discipline and its enforcement in society Laws are the aggregate of rules representing is the collective wisdom of community and therefore applied universally according to the circumstances and conditions and requirement of the nation universally for the common human benefit of people's welfare and therefore made applicable for the strict enforcement of justice with the changing requirement and sanctity of the rule of law. Doubt perishes the man while apathy to a particular situation ruin the civilisation. Law in order to satisfy the needs of fast changing society has to be evolved in order to meet out the challenges instead of remaining static. Thus the judicial thinking to be constructed by reference which would adequately deal with the new problems and therefore we no longer need the crutches of foreign legal system. It has to be secured through the process of law. The collective interest of the community so that parties do not lose faith in the institution and thereby indulge in private retribution is the prime objective of the legal order. The procedural safeguards should commensurate with the sweep of power. The wider the power, the greater the need for restraint in its exercise and correspondingly, more liberal the construction of procedural safeguards envisaged by the statute . An independent and honest judiciary is sine qua non for rule of law. It is imperative to protect the honest officers from motivated misconceived complaints made by unscrupulous litigants while on the other hand infallibility is an unreliable ideals, correctness is often a matter of opinion. Thus ability to anticipate the fallibility is the gift of a prophecy consideration of finality are subject to the paramount of justice but the remedial action must be appropriate upon which the administration of justice may rest. Thus the law can not afford any favourite other than truth. Life of law is not logic; it has been experienced however logic may not be ignored when experience is silent. There has been erosion of faith in the dignity of the court and in the majesty of the law. The procedural wrangle is eroding the faith in our judicial system and one must introvert turn the search light over the process of deterioration inwardly. Therefore, the law must be definite and such as basic postulate is the requirements of the consistency in judicial decision making process and at the same time, there is the need for foreign flexibility. No straight jacket formula can be laid down for judicial functioning. The concept of public accountability of the judicial system and the professional competency with ability to promote the justice is perhaps overdue and the courts are ill equipped to speculate and seldom at contrary to democratic principles. Values in public life have undergone serious erosion during last few decades what was unheard is a common talk of the day. The new value orientation has undergone in our culture and we are at the threshold of the cross roads of these values. This is a difficult situation.
One makes Law legal only by giving its operation . The consent of one's conscience. A moral obligation to disobey is not less compelling merely because an individual is powerless and that his disobedience may lead to punishment through powerful despotic monarch. It is always electoral of pre-medication to adopt justice as synonymous to law, which may be the command of the stranger, but the humanity and conscience will always be prone to launch a protest through expression against such command of law who has no sanctity of justice behind it. The problem of obedience of unjust law is the root cause for a right to right to rebellion and delicate balance is being observed in the history of civilisation. The position of soldier under section 41 of the Army Act, 1950 as making disobedience to unjust immoral offence is in practice difficult to tackle as being liable to be shot at by a court martial and if he disobeys to be hanged by a judge. There is a concurrent conflicting demands of choosing either of the two. The discipline and of supremacy of law. It is difficult to examine and being aware of a illegality of the order and therefore law contrives an objective test. The Nuremberg trial has further declared that Nazis law and order of dictator must confirm to minimum morality. If it does not stand this test, the disobedience to unjust command will not often the discipline and rule of law will prevail. Resistance to oppression is the consequence of other rights. When the government violates the rights of the people, insurrection for the people and for each portion of the people, the most sacred of all rights and the most indispensable of all duties. Abraham Lincon’s famous slogan “Government for the people ,by the people and of the people means that the people can exercise their constitutional rights and revolutionary rights to dismember and overthrow the government. Thus rebellion to tyrants is obedience to God. Whenever any government becomes destructive of certain inalienable rights of life, liberty and pursuit of happiness, the people have the right to alter or abolish it. The abuses and usurpation design to reduce the existence of the individual and to act like absolute despotism, it is the right and the duty to throw of such government and provide security to the citizens. The rebellion against government is further justified when the majority of the people are oppressed by a despotic minority and then it becomes a moral duty of men who love liberty not to permit any moral rights to rebel against the majority. Practice of non-violent methods of rebellion as a means to end tyranny has been justified by our founder father but tyranny which makes reforms impossible is difficult to be tackled down and in that situation only the public opinion can safeguard the interest of the society. The obligation to obey the law is always linked with the question of justification for the natural outburst with the right to revolution. The ultimate raison de etre for you social discipline is reconcile apparently with conflicting claim of liberty and law. The justification to obey the law through civil disobedience involves conscious disapproval of government's action. The other factor of disobedience is through non-enforcement of the sovereign power of imposition of tax law and when ever the protest has the justification for not agreeable as unable to conscience to obey it. The peace and tranquillity of the realm is always supreme as such violent emotion is unwarranted by moral law .Socrates, who searched into things under the earth and in heaven and therefore the youth refused to hold his tongue and prepared that as he realised that law applies with equal force to all to maintain ordered society and in order to resist against. Unjust law are must not to being afraid of being incurred in punishment for disobedience, if his conscience permit him to do so. Recent events have revealed the damage of letting ashore on body politics to fester for to long, the solution must be consistent with the unity of the country and national interest and not on as can result in claim of reaction detrimental to those interest. Despite the enduring the assurance by every political party in the parliamentary democracy for country’s stability progress and radical reform, there is a complete social disruption. Sometime there is ideological compatibility due to personality cult and dynasty rule over primitive society but when there starts inherent contradictions and ego concentric personality clashes, the country stability ,progress and radical reform comes to ignominiously halt. Socialism is to social justice , what ritual is to religion and Dogma is to the truth. Our present politicians has imposed so called mindless sociological arrangement on the nation under the garb of socialism which has held in thrall the people endeavour and enterprise resulting in the transfer of wealth from the honest to dishonest opportunist, merit to the demerit; quality with the quantity and justice with injustice in the guise of giving social protection. This is the reason that 231 public-sector enterprises run by Union government and 636 by the state government of extracting the material resources from public exchequer realising exorbitant price from India's doctrines socialism. If the politicians are actually concerned and they should have provided the financial security to the backward classes as to enable them to survive by distribution of resources with a logical distributive justice. There is only quantitative growth without quantitative developments. The influential politicians who preferred to let socialism remain the opiate the people and of whom it can be truly said that if the ignorance is the bliss they should be happiest men alive. Gandhi ji said “Economics that hurts the moral well-being of individuals or nation is immoral and therefore, sinful .True economics never militate against highest ethical standards, just as all true ethics to be worth of its name just at the same be also good economics. An economics that inculcates worship and enables the strong, to mass wealth of the expenses of the weak is a false and dismal science. It spell death true economics on the other hand stands for social justice, it promotes the good of all equally including the weakest and is indispensable for decent life. Gandhi ji told “I do not believe
that multiplication of wants and machinery and contrives to supply them is taking the world single step nearer its goal ……a wholeheartedly detests with. This met desire to destroy the distance and time, to increase animal appetites and go to the ends of the earth in the search of their satisfaction. If modern civilisation stands for all this and I have understood to do so I call it Satanic” . “A civilisation, in real sense of the term consists not in the multiplication but in deliberate and voluntary reduction of wants. “Industrialisation on a mast scale would necessarily lead to passive or active exploitation of the villagers as a problem of corruption and marketing come in. Nothing should be allowed to be produced by the cities which can equally well be produced by villagers. The proper function of the cities is to serve as clearing houses for village products. Here are more hands than required for the work and therefore the problem is how to utilise the idle hours, they will render unemployed. The concentration of production and distribution in few hands privilege oriented monopoly. The industrialisation must not deprive people from environment, must but must in village artisan to reduce his drudgery and improve his efficiency”. This is the answer to the concentration industrialisation in the cities having no air to breathe at Delhi 460 S.P.M level ,Calcutta 460 S.P.M level 350 S.P.M level each. Justice H.R. Khanna, when appointed as commission of inquiry in the year 1967 in respect of the matter relating to the charge of corruption against the minister’s of Orrisa including three Chief ministers, one of whom was Biju Patnaik while dealing with 70 charges of corruption levelled against them, was faced a situation dealing with the arguments advanced on behalf of two ex chief ministers, that there was no prescribed code of conduct for the ministers to held them guilty of impropriety, that ministers cannot use their officer or allow them to be used for furthering the business interest of his family members to have commercial dealing with the State as they themselves never passed orders in respect of such transactions. Justice Khanna observed that a person on being a minister becomes the custodian of the public interest. Thus he should so formulate his politics and his activities that there is no possibility of the clash between his personal interest and the public interest. The role of minister has got to be that of pioneer rather than a pirate, of the public to sentinel rather than of self seeks of one dedicated to the public cause and not one obsessed with the desire of personal gain -- -- what is needed is a climate of strong public opinion where in none may dare to deviate from the path of rectitude . Law can punish only occasional lapses quoting a classic passage of judge hand. “ I often wonder whether we do not rest our hopes too much upon our constitution, upon laws and upon courts. These are false hopes liberty lies in the hearts of men and women. When it dies there no constitution, no law, no court can do much is to help it while it lies that it needs no constitution, no law ,no court ", to save it. The question is whether the laws speaking through the authority of the courts to deal with such threat to the security of the state, shall be absolutely silenced and reduced mute spectator because of such threat. The answer has to be given to the public. A raise weary of its own blood shed and diversities should cultivate public opinion which may offer the only chance for the survival of the species. The best guarantee for such situation is good sense of those in power, the vigilance of the people and the pressure of the public opinion. This is an alarming situation which spell out the gravity and further invite peoples co-ordination to formulate public opinion to fight through the policy of non- co-operation which has provided the independence from the British rule by our leader Mahatma Gandhi . “Every day that comes and goes, every mile the river flows, says to me and say to you, much there is to learn and do, for the water and the day, noise more will pass this way”. Mankind has a habit of surviving worst catastrophes created by its own error or by violent turn of the nature and it must be so if there is any meaning in its existence, if its history and continuous survival is not the accident of a fortuitously self organising chance which it must be a purely materialistic view of the nature of the world. If man intended to survive and carry forward the evolution of which he is at present the head and to some extent of half conscience leader of its march , he must come out of this present chaotic life and arrive at the organised efforts. The ideal situation would be fulfilled by the accomplishment and preservation of the people from its own extinction by the folly committed by his own species. Ambit and scope of article 21 couched in negative language Hon’ble Supreme court has taken into account two spheres of dimensions to the right of personal liberty against the sovereign power exercising its functioning with the police power and restrictions imposing procedural safeguard in order to provide the public safety having invasion of individual privacy as susceptible to abuse. The custodian violence and torture by the police adopting third degree of interrogation and other agencies have been deemed to be violative of article 21 and article 22 of the constitution of India. It has been held that the importance of affirmed rights to deter
breaches by the violence, torture and even death in police lock up strikes a blow of rule of law. The police who is supposed to provide the protection of citizens is committing such crime under the shield of uniform and authority in the four walls of a police station of lock ups in which victim is being totally helpless. Torture of human being by another human beings is essentially an instrument to impose the will of the “strong over the weak” by sufferings. These are a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward. Universal declaration of human rights in 1948 in reference to article 5 stipulates “no one shall be subjected to be tortured or to be cruel inhuman or degrading treatment or punishment”. The constitutional guarantee provided in article 20 (3) provides that of a person excused of an offence cannot be compelled to be a witness against himself. Article 22 (2) provides that the person arrested or detained in the custody shall be produced before the nearest magistrate within a period of 24-hour of such arrest excluding the time necessary for journey. The accused shall be informed of the ground of such arrest and shall not been denied that right to concern and defend himself by legal practitioner of his choice. The personal liberties is protected under article 21 except according to the procedure established by law. Thus personal liberty is a sacred and cherished right under the constitution (UBI JUS IBI REMIDIUM). The Hon’ble supreme court has held in respect of the guarantees of the fundamental rights to education to its citizen in Miss Mohini Jain Vs state of Karnataka 1992 (3). S.C.C. Page 666, while dealing with this aspect of constitutional bench in Unikrishanan J.P and others Vs state of Andhra Pradesh (A.I.R 1993 S. C. Page 2178) has observed “Learning is excellence of wealth that none can destroy, to man nought ,else affords reality of joy”. Quoting an old Sanskrit adage. “Liberation from ignorance which shrouds the mind, the liberation from the superstition which paralysis efforts, liberation from prejudices which blind the vision of the truth. “victories are gained, peace is preserved , progress is achieved, civilisation is build-up and history is made, not on the battlefield where ghastly murders are committed in the name of patriotic , not in the council chambers were insipid speeches are spun out in the name of debate, not even in factories were are manufactured novel, institutions which are the seat-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up, statesman and soldiers, patriot and philosopher who will determine the progress of the land. In Keshavanand Bharti Vs state of Kerala A.I.R 1973 S. C. Page 1431 Justice Matthew held “The fundamental rights have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. It is relevant in this context to remember that in building of just social order, it is sometimes imperative that the fundamental rights should be somewhat related to directive principles. The following rights are held to be covered world under article 21. 1) Right to go abroad ( A.I.R 1967 S. C. 1836) 2) Right to privacy (A.I.R 1975 S.C.1378) 3) The right against solitary confinement. (A.I.R 1978 S.C 1675) 4) Right against bar fetters (A.I.R 1978 S.C 1514) 5) The right to legal aid (A.I.,R 1978 S.C. 1548) 6) The rights to speedy trial (A.I.R 1979 S.C 1360) 7) The right against hand cuffing (A.I.R 1980 S. C. 1535) 8) The right against delayed execution (A.I.R 1983 S. C. 361) 9) The right against custodian violence (A.I.R 1983 S C. 378) 10) The right against public hanging (A.I.R 1986 s c. 467) 11) Doctors assistance (A.I.R 1989 S. C 2039) 12) Right to shelter (A.I.R 1990 S. C 630) 13) the right to live with human dignity free from exploitation (A.I.R 1980 S. C 849) and 14) The right of livelihood (A.I.R 1986 S. C. 180) respectively were also considered to be within ambit of article 21. Every endeavour has been provided till now to make this article reverberate with life and articulate with meaning. It has been held that authority not performing their statutory duties to enforce laws for the protection of environment inre- J.T 1996 (2) S. C 196 and J.T 1996 (7) S. C. 775 are jeopardising the right of life of the citizen. However the authorities have still to provide protection by providing a fool proof. Safety to the passengers travelling inside the fast moving train to avoid disastrous accident endangering a cynical disrespect towards the glorious contents of life in positive language and the honourable court may interpret life of law to serve the social purpose and felt necessity as sentinels on quinine as guardian of human rights to the victim of fatal accidents, socio-economic crisis and criminal actions to their dependants which is in the prevailing situation installing a sense of fear at least by providing minimum of financial security. Transparency of action and accountability are perhaps two possible safeguards which the court enforcing the protection of fundamental rights must insist upon. Thus police in India requiring to perform a difficult and delegate task in view of the deteriorating law and order situation, communal riots, politics turns to student unrest, terrorist activities, dealing with hard core criminals, drug peddlers, smugglers having strong root in society, will feel difficulties in the detection of the crime committed by the hardened criminals. Thus a balanced justice approach is needed to meet the ends of justice. The cure cannot however, be worst them the diseased itself.
The state must therefore ensured that the various agencies deployed by it of highly sophisticated technology is increasingly susceptible to abuse. The existence of public emergency are in the interest of public safety relating to sovereignty, security, public order and integrity of India and also for preventing incitement to the commission of an offence may justify the right to hold a telephonic conversation and thus telephone tapping would tantamount to interference and certainly be claimed against the right to privacy unless it is permitted under the procedure established by law. Right to freedom of speech and expression includes a right to express one’s convictions and opinions freely by words of mouth, writing, printing, picture or in any manner under article 19 (1) (a) of the constitution dealing with the provisions of section 5 (2) of the telegraph act. Unless public emergency has occurred are the interest of public safety demands, the authority have no jurisdiction to exercise the power under the said section. The power vested under section 5 (2) shall not be issued except by home secretary’s and there shall be a review committee consisting of cabinet secretary, law secretary and secretary telecommunications appointed by the governor. It is not disputed that no rules have been framed for the conduct of telegraph is under sections 7 (2) be of the act for providing precaution and preventing the improper interception or disclosure of messages for combating terrorism act within the bounds of the law and not to become the law themselves. In order to bring transparency and accountability, it is desirable that the officer arresting a person should prepare a memo of his arrest at the time of arrest in the presence of at least one witness may be the member of the family or the respectable person of the locality. The date and time of the arrest shall be recorded in the memo which must also be counter signed by the arrested person. The claim in public law for compensation is based on strict liabilities but for the established infringement of the indefeasible rights guaranteed under article 21, the grant of compensation is an exercise of the courts under the public law jurisdiction. The quantum of compensation will of course depend upon the peculiar facts of each case and no straight jacket formulae can be evolved in that behalf. ( D.K. Basu Vs state of West Bengal, J. T. 1997 (1) S. C Page 1) ( Joginder Kumar Vs state of U. P. 1994 (4) S. C. C. 260), (state of M.P Vs Shyam Sunder Trivedi J. T. 1965 (4) S. C Page . 445, (Neelabati Bahora Vs state of Orissa J. T. 1993 (2) S. C Page 503, ( Bhim Singh Vs state of .J. K. 1985 (4) S.C.C page 677, ( Rudul Shah versus state of Bihar 1983 (4) S.C.C page 141) have been referred by the apex court. The Hon’ble supreme court in the public interest litigation filed by people’s union for civil liberties versus union of India J.T 1997 (1) S. C page 288 has laid down that the telephone tapping is a serious invasion of an individual’s privacy which with the growth. Thus as interrupted by all learned seven judges in Khadag Singh case 1964 (1) S. C. 332 that the expression life couch in article 21 included that “right to privacy and covered under protection of life and personal liberty which is insured against the arbitrary intrusion by the police. It is a right to be lit to a citizen to safeguard the privacy of his family, marriage , procreation, motherhood, child bearing and educational among other matters dealing with Article 17 of international convenient on civil and political rights 1966.
(1) No ones shall be subjected to arbitrary or unlawful interference with privacy, family woman
and correspondence not to the lawful attacks on his honour and reputation and Everyone has a protection against such interference or attack ... Article 12 of the universal declaration of human rights 1948 is almost in the similar terms. Thus it has been ordered that matters to be taken into account in relation to the interception required under section 5 (2) of the telegraph act, unless renewed cease to have effect at the end of the period of two months from the date of issue. The record shall be maintained in case it remained in an operation to the maximum limit of not exceeding six months regarding the intercepted communication, the extent to which the material is disclosed the number of person and their identity any of the material disclosed, and the extent of copies may made regarding material by authority issuing the order. The committee at state-level and central government shall also maintained that whether there has been any contravention of any of the provisions of section 5 (2) of the Act the procedures which deals with modalities of regulating, restricting on even rejecting a fundamental right felting with article 21 has to be fair, not foolish, carefully designed to effect , not to be subvert the substantive right itself which can be canalised only by civilised processes ( Maneka Gandhi Vs Union of India 1978 (2) S. C. R. Page . 621). HUMAN CONSCIOUSNESS AND SELF REALISATION The baggage of deepening in-equality is often sweeping the Indian countryside, yet we spectacular claims of progress and transformation of government enterprises. The hunger, drought and famine interchangeably with each other with the lowest level of literacy and education in country, the concept of poverty line has a role and place. Rural India never speak. They invariably plead; cry or beg for attention and if nobody listen they simply weep. No force on earth is greater than an idea economic and social justice; a more equal control of resources; a life with dignity; and the growth through justice. Let us find out some corrective steps for the disparity of the harmony and the real condition of the people in our country. The orders of society were created classifying them
according to the mode of pre domination in a particular field and apportioning corresponding duties casted upon the Brahmin, the Kshatriya, the Vaishya and the Shudra. Till the caste system is not abolished from the society, there cannot the righteousness in action. Human mind has become more complicated and absorbed with passion, fear, and anger. The intelligence of the men are puzzled in expound the truth about action. We have lost our sight from seeing the consequence of evil effect. The contentment by getting free from jealousy and transcended all pairs of apposite like joy and grief the root cause for maintaining a balance in success and failure. The yoga of knowledge and the yoga action may lead the individual to the supreme being where individual becomes free from bondage. Therefore our mind should remain unattached to the senses object .The India the unforgettable tenacity and the perfection of mind with exclusive love by practising with absolute dependence has been no more in existence. Sri Krishna has taught to Arjun that if you refuse to fight for righteous cause then shrinking your duty and loosing reputation and your popular esteem shall be the worse than the death. The life is the transformation of energy of the soul and the perception of the God. Thus by feeling unattached to everything, one should draw in his limbs from all direction, but the control one. The life is govern through some energy which is transmitted are into the body from the outer atmosphere and provides a contributory factors in maintaining the proper equilibrium between earth , water, fire, air & ether . The mind of individual is based on logical conclusion, which is also constitute ego to the materialistic nature. The moment, the stress of the personal achievement is sustain the mental horizons dilutes extent and the individual becomes passion and desires. The whole creation is dependent upon the quality of goodness principle of activity and principles of inertia. The entire field of action are comprising perpetuating in heart and visualise from outside and such person possesses the steadfast mind. That they even at the hour of death they use to worship the God. Reason right knowledge unclouded understanding forbearance veracity , control over the senses, evolution and desolation fear, non-violence, equanimity, contentment, austerities, charity, fame, obloquy are the diverse trait of creature, which makes the individual life divine. Absolute fearlessness perfect purity of mind, constant fixate in the yoga of meditation for the sake of self realisation and even so charity its Sattvic form, control of the senses, worship of God and other deities as well as of one elders including the performance of agnihotra (pouring of obligations in the sacred fire) and other sacred duties, study and teaching of the Vedas and other sacred books as well as chanting of God’s names and praises suffering hardships for the discharge of one's sacred obligations and straightness of mind as well as of the body and senses. Non-violence in thought ,word and deed, truthfulness and geniality of speech, absence of anger even on provocation disclaiming doer- ship in respect of actions, quietude or composure of mind, abstaining form malicious gossip , compassion towards all creatures, absence of anger even during their contact with the senses, mildness, a sense of shame in transgressing against the scriptures or the usage, and abstaining from frivolous pursuits. Sublimate, forbearance, fortitude, external purity, non-bearing enmity to none and absence of selfesteem these are the marks often, who is born with the divine gifts. Human knowledge has become too great for human mind. The superstition is mainly having its predominating factor over individuals conscience due to the ignorance. The scientific process of evolution for systematic knowledge of human being is based on analytical approach. This is achieved by observing certain symbol which are problem orientation process, hypothetical presumption, experimentation, evolution, observation and conclusion. Necessity is the mother of invention. Does the human minds split into thousands of isolated fragmentation, which have no longer generated to our wisdom. Scientific analytical description is based on theory of natural selection and descent of man in the process of evolution. Human behaviour flows from three main sources i.e Desire, Emotion and Knowledge. Desire includes appetite impulse and instincts; emotion includes spirits, ambition and courage and knowledge includes thought, intellect and reason. Desire is the bursting reservoir of energy which is mainly classified in three main categories; 1. Power 2.Wealth 3. Pleasures of the senses. All the others are born out of these. The philosopher namely Frieud considers to the main impulse flows from sex while Marks rates wealth as the primary appetite and Adler rates power, the most basic instinct. Basically the desire is the root of ignorance. Man being ignorant of his own self is in itself ignorant, self unconsciousness is the main reason for our desire. The Self deception to hide the ignorance and creation of the false image is the root cause of our distress. The truth is totally eclipsed and no return to the reality is possible, if the desire is implanted in the head of human being. The fallacy lies in the concept of God as an individual. Money can purchase poems, prayers, songs, bhajans ,rituals and the power too does the same quality. As soon as we indulge emotional satisfaction by creating a false image to hide one’s worthless personality, the desire for sex starts which may completely vanish the hope for spiritual growth of the Dharma. Thus none of the three desires are wholly true. Dharma survives and sustains because, each one of these three is basically not the root cause. Desire, Power and Sex are only symptoms. They are on the outer periphery on the surface. The cause is deep. Man is the hallow and empty inside. There is darkness. There is no light inside. Ignorance and lack of awareness are the basic cause of the inner poverty to hide, which these three are used to supports.
The only cause and its remedy is by inner fulfilment. Bliss is needed to fill up the dark and empty recesses of the inner spaces . The cure is in medication and meditation alone. Any person who becomes calm , quiet and still inside, who knows himself and can witness himself through the inner eyes and illumines the ignorance within himself and then he becomes happy and filled with ecstatic and blissful. To sum up, all desires are created in the absence of meditation. Sitting silently and being a witness to yourself leads to bliss and ecstasy which may ultimately give freedom from all desires. Knowledge may be acquired by self- realisation. To know what to ask is already no half of the truth. The conception of human nature is perfectly sound. Every ideal has a natural basis everywhere. Natural development is the ideal evolution. For we choose happiness for itself and never with a view to anything further whereas we choose honour ,pleasure, intellect because we believe that through them we should be made happy. The scientific glory and the power of man virtues, rather excellence will depend on self-control. It is not a possession of a simple man; not the gift of the innocent intent, but the achievement of experience in a fully developed man. The golden means; the first and the last quality will be the extreme and vices and middle quality a virtue or an excellence. So between cordial and rashness is courage; between stinginess and extravagance is liberty; between sloth and greed is ambition ;between humility and pride is modesty; between secrecy and loquacity honesty; between moroseness and buffoonery good humour ;between quarrelsomeness and flattery the friendship; between indecisiveness and impulsiveness is the self-control. Life is the root cause of our consciousness as without life there is neither any soul nor existence of God. Neutron is the root of every atom which is neutral electrical element. If we have hypothecation on the basis of logical conclusion, which may come by the study of ideal method in thought and research, observation and introspection, deduction and induction, that the neutron are the repository to the God then our desire which are like the electron are rotating in the stationary orbit with centripetal forces and is maintaining an equilibrium through electrostatic attraction for worldly affairs. These electrons are certain particles moving in certain wavelength which may be called as orbital periphery of individuals existence. Desire, impulse instincts and appetite are governed through these electrons while the emotions in an individual are governed through his ambition, courage and spirit ,which are like the proton as the integral part of an Atom. The density of which is heavier to 1837 times than electrons .Thus ultimately the emotions are controlled by inner consciousness which is the soul of the individual. The knowledge which is bursting reservoir of energy flows from the neutron, the ultimate God and when it is converted into wisdom the human beings becomes the part of the nature. The solar system is also like the atomic compositions where the planets are rotating over the Sun in its different periphery and therefore planets are governing factor of the solar system being the part of planetary electrons . Happiness ,you have to find along with the way not at the end of the path but by moving along with the pace of life. Thus the man should not be confident towards his power, but towards his aim. If you blame your present the future will be in dark therefore try to overcome the remaining part of the present. You may be very nearer to your success. If in a sin consciousness man may commit any wrongful act then these are not we who are entitled to take revenge. It is the God who will teach him. If we take any participation we may be categorised with the same guilt as that of an offender. Therefore we should avoid such blame on our soul as every action which has got sanction of consciousness is an action done by the God himself. The fullest usurers interest for each pleasure gifts are not freely scattered by its hand .We make return to every borrowed treasure . Each talent, each achievement and each gain necessitate some penalty to pay. All you bestow on cause for on man of love and hate or malice or devotion, somehow, sometime shall be returned back again. There is no waste toil ,no lost emotions. The motto of the world is to give and take. It give you flowers out of sheer goodwill, but unless a speedy recompense you made , you will find yourself presented with its bills. Life is a bubble; snap it today; Passing its gloom’s into tomorrow's Ashes It will be scattered all around. Watching, observing but unable to speak. Helplessly you will be suffering a lot, In your absence you will be lost. But at that stage, your unbounded zeal, And all your pious efforts towards amicable means. Will be having a thirsty desire for the support. And in that situation and noble spirit alone. Will Convey your idea before the masses. You will be credited for your benevolent deeds. Your great idea will survive. And the presence of this idea will be your immortality for ever .
LOVE, SUCCESS AND WEALTH IN LIFE A woman came out of her house and saw 3 old men with long white beards sitting in her front yard. She did not recognise them. She said "I don't think I know you, but you must be hungry. Please come in and have something to eat. "Is the man of the house home?, they asked "No", she said. "He's out”." Then we cannot come in", they replied. In the evening when her husband came home, she told him what had happened. "Go tell them I am home and invite them in!" The woman went out and invited the men in. "We do not go into a House together," they replied. "Why is that?" she wanted to know. One of the old men explained: "His name is Wealth," he said pointing to one of his friends, and said pointing to another one, "He is Success, and I am Love. "Then he added, "Now go in and discuss with your husband which one of us you want in your home." The woman went in and told her husband what was said. Her husband was overjoyed. "How nice!!", he said. "Since that is the case, let us invite Wealth. Let him come and fill our home with wealth!" His wife disagreed. "My dear, why don't we invite Success? "Their daughter-in-law was listening from the other corner of the house. She jumped in with her own suggestion: "Would it not be better to invite Love? Our home will then be filled with love!" "Let us heed our daughter-in-law's advice," said the husband to his wife. "Go out and invite Love to be our guest." The woman went out and asked the 3 old men, "Which one of you is Love? Please come in and be our guest." Love got up and started walking toward the house. The other 2 also got up and followed him. Surprised, the lady asked Wealth and Success: "I only invited Love. Why are you coming in?" The old men replied together: "If you had invited Wealth or Success the other two of us would've stayed out, but since you invited Love, wherever He goes, we go with him. Wherever there is Love, there is also Wealth and Success!!!!!!" MY WISH FOR YOU... Where there is pain, I wish you peace and mercy. Where there is self-doubting, I wish you a renewed confidence in Your Ability to work through them. Where there is tiredness, or exhaustion, I wish you understanding, patience, and renewed strength. Where there is fear, I wish you love, and courage. ATTROCITIES ON WOMEN AND THE LEGAL REMEDIES TO PREVENT THEM There will be no generation of great men, until there are women, free women of free mothers. There every women deserves sentiments. Women should be honoured and adorned with appraisal. The religious act of family where women are not honoured becomes fruitless. The family enjoys perpetual propriety, where women are delighted. Therefore one should honour women as ‘ PUJYA DEVI’ and refrain from committing any atrocities upon them. Equality on the basis of sex and individuality of women has been recognized by the Indian Constitution. The number of laws has been enacted to improve the lot of women, but it has not been successful in changing the status of women. The women continue to be exploited, as they are dependent, socially, economically and psychologically upon men. Education, an important source of personality development and emancipation has failed to bring women at par with men. Marriage being the sole purpose of women’s life, education becomes only a means to attain that purpose. Women constitute one of the backward social groups is in the need of special protection. Tradition, religion and law have conspired to make women subordinate to men. The subordination of women is against the spirit of democracy, it is against equality and justice. The abolition of Sati and Lord Bentinck ( Bengal Sati Regulation, 1929) was no doubt the first legal measure for social reform. Legalization of widow’s remarriage, prohibition of child marriage and recognition of widow’s property rights were some of the other reforms made during British Rule. The Constitution of India, realizing the special need for ameliorative efforts to bring about equality between man and woman provided the special provision for women and children. The egalitarian thrust provided the right to an adequate means of livelihood. The special provision for maternity relief reveals the anxiety of implementation of social obligation. In social field, the Hindu Marriage Act, 1955 took a step of abolishing poly gamy amongst Hindus. The provision in Cr.P.C. u/s 125 for getting maintenance, amendment u/s 376 I.P.C. and the promulgation of the provision of Dowry death r/w section 113-B of the Evidence Act has provided the substantial measurements for the eradication of prevailing maladies of oppression upon the women. The Hindu adoptions and maintenance Act, 1956, the Hindu Succession Act, 1956 and Hindu Minority and Guardianship Act, 1956 provided a substantial degree to remove the disabilities of Hindu women. The Dowry Prohibition Act, 1961 was passed with an ostensible idea of checking the evil. The practice of dowry has emerged as a major social evil, which is reflected in large number of
cases of “Dowry Deaths”. The reluctance of parents of the victim to lodge a report is the reason for this personal nature of the crime. Women by and large constitute a neglected section of the society. There is now indisputable evidence of steady decline in the value of women in society. The following trends may be responsible in this context: - (1) excessive morality amongst women and female child. (2) glaring disparity between men and women in access to medical services (3) Persistent decline in sex ratio. (4) Illiteracy and unemployment of women. Dowry is a clear Affirmation of the fact that one’s gender determines one’s worth or significance. Since worth is distributed unequally amongst the sexes at birth, worth deficiency amongst females can be offset by material additives. Dowry is the most prominent additive. In the survey of the cases of unnatural deaths of young women, this hypothesis suggested itself again and again. Brides who earn more that their husbands are made to feel an obligation to supply ‘dowry goods and services’ long after their marriage, just as those women who earn nothing. Society perceives woman as economically less productive than man (or unproductive) and, therefore, a female is regarded as a net economic drain on a family. At marriage, when the female is in transit between the two households, the family that accepts her is perceived to be saddled with a net economic liability, while the household that is losing her is in fact losing a liability. Dowry is, therefore, a compensatory payment to the family, which agrees to shelter her, hypothetically for the rest of her life. And precisely for this reason, dowry is a recurring phenomenon, which lasts a lifetime. In Air India Vs, Nargesh Meerau (1981) 4 SCC 335, an Air hostesses case, according to regulation 46 and 47, the air hostesses shall retire on following contingencies (1) on attaining age of 35 years (2) on marriage, if it took place within four years of service (3) on first pregnancy. On other hand, Assistant Flight persons were retiring at the age of 55 or 58 years. Both categories continued the same cabin crew. The Apex court observed that compelling the air hostess not to have any children and thus interfere with and diverts the ordinary course of human action. The Apex court observed that this provision is not only manifestly unreasonable and arbitrary, but contains the quality of unfairness and exhibits “ naked despotism” and therefore violative of Article 14. There are vide variety of women employees i.e. (1) small segment in workforce as executives and prestigious professionals (2) semi professionals like nurses, school teachers who are hired not only for their skills and intelligence, but presumably for their looks too. (3) The lowest economic stratum, predominantly illiterate semi literate. We have to see that (1) whether there are set of laws which meaningfully deals with the stresses and strains faced by women in workforce (2) Do existing law discriminate in any way against those women? (3) are the existing law comprehensive enough to protect the interest of women ? (4) What are the special steps required to meet the specific disabilities faced by women (5) Is there the need for special laws to meet the disabilities faced by women. Laws, as we know, are only regulatory and not curative and had this not been so. Nothing would have been easier for us and to make laws against all social evils and find the next morning that our society has become heaven. The eradication of an evil lies not so much in law as in the society itself. No society can exists, breathe and move without a base and this base is provided by norms and values. Let us have an introspection upon the prevailing maladies and get the effective implementation of the better idea, the better measurements as to prevent them by the strong will power in order to protect the half of the human being which constituted the part of the women folk in the society. A TRIBUTE TO SHRI SHANTI SWAROOP BHATANAGAR ( Ex-ADVOCATE GENERAL, UTTAR PRADESH) Shri Shanti Swaroop Bhatnagar has now been departed from this worldly affair to the heavenly abode. He was the kingmaker and always reacts like lord Krishna to Arjun in solicits the advice to the lawyers. He was very affectionate personality and was always ready to provide guidance to every person associated in legal profession. He used to incite the individual to look into the provision and than only indulge in the discussions. He used to react like boil milk upon the legal discussions by imprudent Advocates. The moment the recipient may become able to understand the issues in discussions, he may become cool. He remained occupied with gatherings of Judges, Advocates and prominent personalities. He was like a guiding light in my life, a reminder that come what may everything is right. His precious advice, right guidance and farsightedness encouraged me through thick and thin moments of life. His stimulating pats on my back, even your harshness at times all only added to inspire me, making me trust you completely as a lifelong companion, which has been grown up special with him in each passing years. Seldom I feel that there was some thing wrong with me in association with other, but still I felt difficulty in expressing my resentments. This is difficult to express an opinion as to what is the correct approach; as to whether I should keep silent; or I should react over the situation. It was realised that the best way was to adopt an apathetically behavior toward every situation, but at the same time, I feel that I have lost my identity and in this situation I feel a lot of disturbances. From there I have
started my interactions towards the behavior and other associated activities, which was directly or indirectly associated with my life “Life is a shylock; always it demands. The fullest usurer’s interests for each pleasure Gifts are not freely scattered by its hand. We made returns for every borrowed treasurer. Each talent, each achievement and every gain me necessitated some penalty to pay. All you bestow on causes or on men of love or hate of malice or devotion somehow and sometime shall be returned again. This was the lesson in my life. There is no waste toil, no lost emotion. The motto of the world is to give and take. It gives you favour out of sheer goodwill but unless a speedy recompense you make you will find yourself presented with its bill”. “Competition is a struggle for existence because there is always be survival of the fittest”. “Every Act and every inquiry and similarly every action and pursuit, given by him was thought to aim at some good, and for this reason, the good has rightly been declared, to be that, at which all things aim. But a certain difference is found among ends”. For him “For best was he who knows all things himself good, he that hearkens when men counsel right. But he who neither knows, nor lays to heart another wisdom, is a useless night”. Shri Shanti Swaroop Bhatnagar was one of the senior Advocate, who has been assigned with the responsibility of representing the State Govt. as an Advocate-General in three consecutive terms with certain break due to political change in the State Govt. The responsibility of discharging the functioning by him as Advocate-General was not due to his political association with the ruling party, but it was on account of his merit, dedication, sincerity, and integrity in discharge of the duties. This was not a manifestation, but the real acknowledgement of the potential of a senior Advocate. There are the reflections of the memories in my mind, when I have seen him conducting the arguments from 1974 onwards. I have started practice after being enrolled as an Advocate in 1974. During the intervening period, since, I was involved in number of problems associated towards my responsibility of supervising 75 Acre agriculture land required to be cultivated, after converting to it’s potential from barren land to profitable agricultural land .The reason for looking after the said land was due to the sudden death of my father in the year of 1971,who died a premature death leaving behind my mother, my elder brother, myself and a younger sister. Since I could not continue my practice at Allahabad & I shifted to District Court due to family responsibilities, I could not see him conducting the argument at High Court for a long duration. This was in year of 1983, when I visited in his chamber for seeking guidance. I have visited in his chamber with a hope that I may get the adequate response, but the response I got was something beyond my expectations. It was initially to discourage me from joining the profession. He said that why a professional in the same profession will like to provide the potential to another rival in the same profession. Thus to rise up to the heights, what the individual may have attended after hard labour and dedications towards his profession, is the hard labour, dedication, sincerity and devotion to study the law. This reply has come forward with another complement that he may not be misunderstood for what he is expressing to myself regarding his inability to guide me. I immediately got the determination that now I will flight for rising up to the tower of success through my own efforts. There were very few Advocates, who can speak such a bitter truth before junior colleagues for giving them a boosting response. To rise through struggle by his own efforts and the individual is not required to have the crutches of other person to provide the support to his body. This was a very valuable advice given Shri Bhatnagar, which has always provided me a lot of confidence and inclination for struggle. This has become the guidelines to provide a contribution in due discharge of the professional responsibility. This was on account of his personality traits having a remarkable combination of predominating characteristics of a prominent Saturn with a cusp of zodiac sign of Capricorn and Aquarius. These personality track fallow in its carving out through experience of adversities else they simply comes through cultivation of opinion and is being stimulated through notional ideology of Isolated doom and perform predominant role in it’s development. This is also a symbol of self-made man personality. There were so many cases, which were argued by Shri Shanti Swaroop Bhatnagar prior to his elevation as an Advocate-General of U.P. I have never missed any opportunity to learn through his potentials to conduct the arguments, whenever I could have been able to listen his arguments .The arguments conducted by Shri Bhatnagar have conveyed the original idea and the strict and correct interpretation of the statutory provisions. It was in the year of 1991, that I got an opportunity to become associated with Shri Bhatnagar for engaging him as a Senior Counsel and from there I have learnt the technique of presentation of the arguments. Even after giving such valuable advice, Shri Bhatnagar had declined to argue in the matter. I could have only realised the standard, which is required for conducting the arguments, but none of the Senior Advocates have provided such a fruitful guidance, which has been given to me by Shri Shanti Swaroop Bhatnagar during my short association with him. I was subsequently informed by him that he has provided the self restrained in conducting the argument, as he wanted to provide me the encouragement and simultaneously wanted to find out my drawbacks tn conducting the arguments. I was subsequently inform by him that he has given me the certificate of approval towards my drafting and presentation of arguments. After the death of his junior Sri Amrish Kumar Sharma and his paralytic stock and the recovery thereof, I came in the close
association with Shri Bhatnagar. He was always inclined to guide me, but he used to advice not to indulge in discussion with other advocates on such issues. This was during the period of his becoming as an Advocate-General that once upon a time I visited in his chamber for showing my resentment and protest against the functioning of High Court. It was his advise to leave the profession and to become a social worker or a politician, who can speak in public against the wrong committed by the superior authorities, else you accept that they have been considered to be the custodians of the public office, trust and confidence in Public life. I again returned from his office with a slight disappointment. There was a discomfiture at my heart by realising my inability as I found to have chained my hand inside the chilling cage in which the projection of the light is coming from the back side and I am seeing the reflection of my image on the front side .This was the sole occasion when, I have lastly visited in the office of Advocate -General during the tenure of Shri Bhatnagar .He was not only at the heights of success in the profession, but became so popular amongst the Advocates ,Judges , the entire staff whosoever being associated with him in his chamber, he had suffered a great set back .Who ever came in association with such a personality that he has risen to the tower of success. The temperament of Shri Bhatnagar has also changed by the age factor, but the opinion expressed by him, rather the words conveyed through him, have become so valuable that the same have provided me the foundations for my existence in the profession. I have remembered each and every advice with great receptive trend, even when it was conveyed to me with some versatile temperament. The orientation of the advise has been equipped with the great confidence as it was never conveyed without making any references from where it was originated in the constitution. I have seldom realised, that, whenever I used to criticise the provision of the constitution inviting the unprecedented litigation before High Court. Shri Bhatnagar was used to react in the same manner by conveying his protest that in case if he possessed a paperweight, he could have thrown it for hitting on my body. This was simply due to the reason that without even learning to the provisions I had started giving my opinion after joining the profession, which was intolerable to him. This is the incident in the previous years, when I first visited Allahabad High Court as an Advocate and started gossiping with such a senior Advocate .The cultivation of moral foundations is called our cultural heritage. The most prominent and remarkable feature in the personality of Shri Bhatnagar is the purity of the mind and inclination to convey his idea with due reluctance. Seldom the people think that they know something but when they start searching for it then they find that it is missing the manner to which they knew. This is the beginning of the legal profession. The greatest virtue in legal profession is to create and enjoy at the same moment. The people do not readily except the superiority of the other intelligent person and as such these people are always remain in controversy. The simple reason of the superiority of Sri Bhatnagar was lying in his brevity of thought and the discussion to the point on the subject. He was a great learner and a great scholar in his contemporary period. He never demanded the respect, but he used to command it from the heart of his associates. I have seen him with tears in his eyes before his clients when he was informed that the family of the client is passing through financial constraint. The pain was apparent and was being chafed again and again before it can heel by his guidance on number of the occasions in my life. I have seen him with tears in his eyes when he came to my residence along with his associates and other colleagues to take the dinner, a few days before his departure for the treatment of his eyes at Apollo Hospital in Delhi. The sentimental breakdown during dinner was in the remittance by remembering his mother who used to prepare the curry that was served to him by my wife during dinner at our residence. I met him last during my visit at his residence on the festival of Holi. He invited me so many times before his death during strike, but I could not spare time to meet him. I did not know that it would be the last meeting at his residence during Holi festival. There is no one having the perfection, but certainly some of the individuals may have risen to the heights, if they may start thinking in the perfect manner and convey the idea generated through such experiences with the same precision. This is very rare in the life of an individual to have the correct analysis of his perceptions with the desire, aptitude and knowledge in adequate representations. With regard to Justice and injustice to an individual’s opinion assessments, we must consider the kind of action, it’s means and the justness for considering its effect and solution. Thus the justice is always represent in corresponding sense. I have seen him in association of some advocates who are ideologically antagonistic to his opinion, but from the very inception, a heterogeneous conglomeration of disparate and desperate interests designed mainly hedge against common enemy on both the constituents. On 2 nd August 2000 he wrote an article in daily newspaper titled as ‘Those were the days’- the last English Chief Justice Orby H. Mootham. There was a pain realised by Sri Bhatnagar by comparing the administration of justice from the present time and the past period. His reminiscences of about 50 years, right from the period of the English judges to the present scenario. It has been said that those judges were mature, modest and commanded the respect by their very entry in the courtroom. There gesture of kindness to the lawyers and courteous dialogues used to blush out of their modesty even if their faces looked red and they were scared in the moment. They entered the courtroom right at 10.00 A.M. never before or a second afterwards. The chief justice was
so cordial, warm and affectionate that this was the etiquette of high constitutional functionaries. The unusual dissent conduct with a strange warmth decency of Chief Justice Mootham was continued to remember by Sri Bhatnagar till his heavenly abode from this world. The second article published on 9 th August 2000. ‘When Chief justice Mootham apologised to a litigant’. Chief justice Mootham entered the court smilingly, but became tense and pointed out to the Bench Secretary for the impropriety of behaviour of a litigant, a gentle man who was sitting in the fifth or sixth row wearing a head-gear. The gentleman has removed his cap. The moment the functioning started, the chief justice regained his usual pleased posture, but the irritation was again visible, when he saw the gentleman recapped his head. However, when the orderly went towards the gentleman he voluntarily removed his cap. This was perhaps by reflexes that he wore the cap once again. The chief justice stopped functioning and asked the court officer to act upon and thereafter the gentleman was asked to leave the courtroom. It was per by chance that Sri Bhatnagar went to chief justice’s chamber to make a mention. Justice Gyanendra Kumar was present in chief justice chamber. The chief justice in a most inimitable style asked, whether he (Sri Bhatnagar) had seen the gentleman, who despite been told not to wear the cap, defied the advice of the bench secretary. The chief justice has also said that the gentleman looked a dissent person, but he wandered why he repeatedly wore his cap soon after removing it. Was it by the defiance to authority of the Court? Justice Gyanendra Kumar, a very pleasant conversationalist, intervened. He said “Chief Justice”, your lordship in the English society, take off a hat to show courtesy, but we in this country wear a cap to show our respect. Thus the gentleman was only trying to repeat his gesture of respect. The chief justice perhaps never knew it otherwise this was not causing irritation to him. The tall person, the chief justice broke into laugher and asked the bench secretary to trace and bring the gentleman in his chamber. Perhaps the gentleman was still out side the chief justice chamber. As soon as he entered, the chief justice expressed regret to him and pleaded his ignorance that the cap is worn to show respect. Soon, the gentleman after being happy from the reprimand made by the chief justice was again called to request him to be in the courtroom soon after the lunch. Justice Gyanendra Kumar was curious as to why the chief justice was insisting to have the gentleman in court. On being inquired the chief justice Mootham observed:- “ He has been reprimanded in court by me and therefore he deserves an apology from chief justice in the court itself. Later the chief justice apologised in court itself. This has been never seen or heard by any judge about such gesture even to a lawyer when there is no good ground for reprimand.” HOW CAN SUCH A JUDGE, THOUGH HE RETIRED IN 1961 CAN GO OUT OF MEMORY OF THOSE WHO HAVE SEEN HIM WORKING IN COURT AND OUTSIDE". The last glimpse of chief justice Mootham was seen at his farewell dinner when he rose to shake hands with each one of Advocates participating in the dinner. When he came to Sri Bhatnagar and his friend Sri Asif Ansari, some one said that he was a leader of a political party. The chief justice said that he refuses to take notice of the political affiliations of lawyers or their complexion and after this chief justice burst in laughter and shook left hand with Asif and gave right one to Sri Bhatnagar. Sri Bhatnagar continued to live with such memories and they remain fresh in his mind despite 40 years have passed in the building of the same court, which Sri Bhatnagar has last saw him. The third article published on 31 st August, 2000 was about Justice Raghubar Dayal, Sri Bhatnagar has written that he open his submissions by using a phrase from the privy council’s judgement without referring to it. He said that the learned District Judge has carved out an new case for which no place was found in pleading! Justice Raghubar Dayal did not open the file and remarked - if counsel have learned to use this kind of language so early in life, he would land himself in disaster. Sri Bhatnagar immediately apolised. He said that he has escaped his lordship wrath and will have a chance before another judge, but justice Dayal said to him that he might present in the courtroom at 10.00 A.M. as this case will be taken as part heard case. Justice Dayal was tensed and his earlier day’s annoyance was apparent. Sri Bhatnagar said that he was relying Privy Council judgement where the judicial committee has used the same language. He said that he was conscious that he did not know English to well, yet he use such word, which were used by Privy Council. Justice Dayal admitted the appeal, but refuse to exercise discretion for staying the decree for demolition. He has written that his indiscreet use of language cause lost to his client. The house of the client was demolished but Sri Bhatnagar has written that he has repented this incident through out his life as to find out where he was wrong. Justice Raghubar Dayal, who retired in 1960 as the judge of Supreme Court, still had the great respect from Sri Bhatnagar, as he never committed such mistake through out his life. Extravagance of Public Finance vis-à-vis curbing the power and duties of C&AG. The constitution of India provides that the Comptroller and Auditor General of India shall be appointed by the President by warrant under his hand and seal who shall not be removed from Office, except in the like manner and on the like grounds as a Judge of Supreme Court. The term of appointment shall be for a period of 5 years and the condition of service and salary of the Comptroller and Auditor General of India shall be such as may be determined by Parliament by Law and until they are so determined, shall be as specified in the second schedule of the constitution. The Comptroller and Auditor General shall perform such duties and exercise such powers in relation
to the accounts of the union and of the states and of any other authority or body as may be prescribed or under any law made by Parliament. The report of the Comptroller and Auditor General relating to the accounts so maintained of the union shall be submitted to the President who shall cause them to be laid before each house of Parliament . The report relating to the accounts of the states shall be submitted to the Governor who shall cause them to be laid before the legislature of the states. That the present accounting system applicable to most Ministries and departments in essentially external to Financial management function in that the payment made by the treasuries and accounts are compiled by audit and accounts offices under the control of the Comptroller and Auditor General on the basis of initial and subsidiary accounts received by them from the treasuries. This system worked fairly well when Governmental business was limited. With the increase ion the volume and variety of Governmental business and the continual set-up of developmental outlays, this system has proved inadequate to the administration task. The scheme of separation of accounts from audit was to be implemented in selective ministries e.g communication, civil aviation, tourism, industries and civil supplies w.e.f April 1976, where the expansion regarding the expenditures and its audit was felt to be providing certain constraint and thereby resulting into the delay in implementation of the schemes at the relevant time. However by the gradual increase of the power with these ministries, the similar laxity in relation to the procedural safeguard was further provided the other ministries resulting into the defeat of the very purposes for which the office of the Comptroller and Auditor General was given the power through checks and balances. The effect of the aforesaid process has resulted in the departmentalisation of union accounts enacted in 1976 and the transfer of personnel was given effect by the enforcement of the Act no 59 of 1976 from Indian Audit and Accounts departments which was earlier under the control of C.& AG to the newly formed department of Civil Accounts under the Controller General of Accounts under department of Expenditure ministry of Finance. In this manner the office of C& AG which was constituted under the scheme of the constitution of India to provide the restraint to the expenditure disproportionate from its own discretion by the relevant ministries was brought under the ministry of Finance and thereby giving the unbridle powers to the ministers and thereby overthrowing the constitutional mandate securing the safeguard over the whimsical expenditure. According to the legal opinion of the constitutional experts, the diversification of the financial powers to be utilised by the sole discretion of the bureaucrats without taking into consideration the Audit objections, which could have been made under the original constitutional scheme, was directly resulting into the notion of conferring the absolute power to the respective ministry. This was against the democratic, federal and republic set-up of our Constitution. The aforesaid concept of the parliamentarian democracy, providing the fraternity to an individual in preamble of the constitution, was an attack on its basic structure. This has led to an inadequate financial control which would have been benefited to the nation if such power were remained with C&AG in India That it would be relevant to point out that the office of the Auditor General of India was created under the Government Of India Act 1935 for exercising the control over expenditure incurred by Central And State Governments and for proper accounting thereof in such forms and in such manner as may be prescribed by him and he was also responsible for rendering a complied account of receipt and expenditure to the Centre and State Governments and he was also required to submit report on the result of Audit in his Audit report to the Governor- General and the Governor of the States for laying it before respective legislatures . That after coming over the constitution of India the Auditor General was designated as Comptroller Audit General of India under chapter V of the constitution. ALLAHABAD AS A RELIGIOUS CITY AND IT'S IMPORTANCE The confluence of three Rivers at Allahabad is not only a factor of geographical significance .It has certain spiritual resemblance. The Hindu mythology recognizes the omnipotent powers of the almighty God in three powers represented by Lord Vishnu, Lord Shiva and lord Brahma; likewise the three rivers were representing the three powers indebted in there representation. The Ganga is the symbolic representation to the source of survival to the living being in this land while the invisible Saraswati represent the creation of knowledge, from which the origin started. The Jamuna river takes it's own toll after the holy departure of living beings and as such all the powers of god were represented through it. This is also the basis of governance of a democratic society by its three organs. The legislation is represented through the creature of the system which is recognized as Law; while the power of Executives are like the flow of Ganga, which is now polluted through rubbish and sludge. The judiciary, known as the third pillar of democracy, which was earlier represented through sarsawati is not visualized. The confluence of river is not alone at Allahabad; but it is at the visnuprayag, where it is known as the place of Lord Vishnu. The Rudraprayag is the symbolic representation of lord Shiva while the governance of Lord Brahma was from Devprayag. By the gradual declination of the process and thereby the gradual degradation in the values of spiritual sanctity with the norms and environment at all these places, the importance of Allahabad has also vanished. Let us have an introspection on the happenings
surroundings to ourselves, and see, what contribution we may provide to protect the Environment which is the source of the life. The seat of the biggest High court of Asia is not mere coincidence, but from here the legal illuminates and Jurists have provided their valuable contribution for upliftment of the cause of the people. “CYBER LAWS & CRIMES” AND “THE INTELLECTUAL PROPERTY RIGHTS”. India is a major player in the field of information technology. The emphasis should be given to the users of this technology. The problem like Internet connectivity may not disturb, if we wish to find success in this field . The prevailing economic system should also be changed to cope up with the minimum needs to people as the benefits may evenly shared and costs evenly distributed. The benefits of sophisticated technology will be for the people as such there is the need of further cyberworld laws.Computer laws regulate information technology. Information extends to field by which information is transmitted such as telecommunication and broad casting. The unifying aspect of computer law is that it examines the technological aspects of information and governs information processing. Information technology has enabled information, formerly something ephemeral, to be turned into something that has a quasi-physical existence and which can be traded as if it were a physical commodity. Thus data base services sell pure information whilst software houses sell applied information in the form of computer software. The law of intellectual property already recognises that certain type of knowledge to be treated to some extent as if they were private property and thus capable of “ ownership”, for reason such as invention shown by their devisors, the effort put into their compilation or because they have been kept confidential. Human activity information technology is used to substitute for some or all of the functions previously under taken by humans, or to perform functions that could not previously be performed at all. The term “Intellectual Property” has come to be internationally recognised as covering patents, industrial designs, copy rights, trade marks, know how and confidential information. Intellectual property of whatsoever species in the nature of intangible incorporate property. The contribution of intellectual property to the economic and cultural development of Country is substantial. The commercial exploitation of different kinds of intellectual property is made in different ways. The intellectual property rights are enforced by an action against the infringement of those rights before a district court or High Court. The growing of patent monopoly in consideration of the disclosure of the inventions enables competitors in the field of manufacture new products or improved product effect improvement in the process of manufacture. The enormous technological development of transport and communication has resulted in globalization of trade and commerce. This has its impact of intellectual property which is becoming international in character. Indian have inexhaustible pool of talent in computer technology. The present generation of computer technology and software wizards are welcomed and sought after in the information technology of the world. The international character of intellectual property is recognised in various international convention for the protection of such property. India is member of both the berne convention and universal copy right convention. As technology in all field of human activities are developing expentionally the field of intellectual property is also expending the correspondingly. The software technology in particular outlining the process which leads to the production of software is useful in dealing with programmers. The software design process is a matter of defining the functions of the programme at increasing levels of specificity . The highest level is analysis of the problem which defines the general functions to be carried out and the occur in which they are performed . The final process is to produce the documentation which the user will need to operate the programme. The Hardware context ,purporting to record the terms of the transaction relating to the sell or supply of goods, fall into two categories. The first is outright sales, where ownership of the goods passed to the buyers, and, secondly , leases of equipment ,where ownership is retained by the supplier with the advents of the business personal computer .It is increasingly common to find equipment sold outright, though for more substantial system leasing is still common .The anomalous position of firm where in legal classification of computer technology divides the subjects of commerce into two types, goods and services. Software being intangible nature is often considered to be services such as off-the-shelf software packages normally licensed for use rather than sold outright. Computer Software is a term use to describe the programmes that cause the computer to operate in a particular way . On the other hand there is a distinction between standard package software and
be spoke software. The hybrid form of software is also existing. The legal nature of the software is one of the central mysteries of computer law . However, as discussed earlier software is intangible, and difficult to classify in legal terms, It appears to be pure information, enjoining no physical form except that of magnetic notation on a tape or disc. Since it seems that pure information is not property ( Oxford vs. Moss ( 1978) 68 Cr App R 183) One might conclude that neither is software. A software are provided free of charge by hardware manufacturer or at least the cost of it was “ bundled” with the price of the hardware. They were viewed as being the embodiment of expensively acquired trade secretes and know-how, rather than as a mass- produced articles. Software houses, totally dependent on software for their business were keen to protect at all costs the intellectual property rights vested in the software, and show adopted the license as the form of supply. Licenses which were used for other supplies of expensive technology or know how, is a permission to do something that would otherwise be unlawful. The license of intellectual property and the development and/or supply of the copy of software is the only real contractual risk that a third party may posses intellectual property rights which are superior to those of licensee. The nature and extent of risk is quite clear, and the drafting of the suitable provisions to control it is a comparatively simple matter. Liability may be arise either from the express term of the contract or from those employed by law, and the terms in development contracts will be quite different from those in supply contracts. The criminal consequences of computer related conduct constitute increasingly the subject of both popular and legal debate. Dependent upon the result of this latter exercise, further questions may arise whether a case can be made out for the introduction of computer-specific legislation and, if so, about the form that this should take. In many instances, the fact of a computer’s involvement in some scheme of criminal conduct raise no novel legal issues. Where the computer is involved in some scheme of fraud, there is little doubt that some form of theft-related offence will be committed at the time when the perpetrator acquires possession of the funds in question. The term “cyberspace” was coined by the science fiction author William Gibson ion his 1982 novel Nuromancer to describe the environment within which computer hackers operate. In the novel, the activity of hacking-securing unauthorised assess to the contents of computer systems- is couched in very physical terms. The image is of the hacker overcoming physical security barriers to penetrate into the heart of computer system and make changes to the physical stricture thereby modifying the operation of the system. When departing, the hacker might even remove and take away elements of the system. Whilst the use of physical descriptions may represent accurately the sentiments of those involved in the creation and use of computer-based technologies, it is much more doubtful how far the criminal law can or should regard simulation as indistinguishable from reality. Although a computer hacker’s reach may extend across the world, the hacker never leaves the confines of his or her own keyboard. No matter how exotic an experience in virtual reality might be, the subject never leaves a particular physical location. The term ‘computer virus’ has entered into popular demonology. The essence of a computer virus is that, like its human equivalent, it may be transmitted from one computer to another. This may occur when an infected disk is transferred between computers. In the event that computers are linked together either in a network or using a telecommunications connection, the virus may also be transmitted electronically. Having infected a computer, the effects of viruses vary widely. Some are relatively benign. An example is the ‘ping-pong’ virus whose effects are limited to causing the image of a bouncing ball to move continually across the computer screen. Other viruses such as the Friday 13th and ‘ Michaelangelo’ varieties can result in the permanent loss of data stored on the victim computer. New communication systems and digital technology have made dramatic changes in the way we live. a revolution is occurring in the way people transact business. Businesses and consumers are increasing using coimputers to create, transmit and store information in the electronic form instead of traditional paper documents. Information stored in electronic form has many advantages. It is cheaper, easier to store, retrieve and speedier to communicate. Although people are aware of these advantages, they are reluctant to conduct business or conclude any transaction in the electronic form due to lack of appropriate legal framework. At present many legal provisions assume the existence of paper based records and documents and records which should bear signatures. The law of Evidence is traditionally based upon paper based records and oral testimony.. Since electronic commerce eliminates the need for paper based transactions, hence to facilitate e-commerce, the need for legal changes have become an urgent necessity. International trade through the medium of e-commerce is growing rapidly in the past few years and many countries have switched over from traditional paper based commerce to e-commerce.
There is a need for bringing in suitable amendments in the existing laws in our country to facilitate e-commerce. This will enable the conclusion of contracts and the creation of rights and obligations through the electronic medium. Computer crime as distinguished in each case by the role played by the computer may be having encompassing a vast range of activities spme pf which may have most tenuous connection with a computer may be identified in their work in three common trends. These encompass the topic ;-“ Computer fraud ; damage to data or programmes; and theft of the information. The computer might; (a)Serve as victim of crime; (b) constitute the environment within which a crime is committed; © provide the means by which a crime is committed; (d) symbolically by used to intimidate. deceive or defraud victims. Thus it was resolved to promulgate The Information Technology Act, 2000 to achieve the above objectives. “ An Act to provide legal recognition for transaction carried out by means of electronic data interchange and other means of electronic communication commonly referred to as “ electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information of facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, 1860 , the Indian Evidence Act, 1872 the Bankers “ Books Evidence Act, 1891 and the Reserve Bank of India Act. 1934 and for matters connected therewith or incidental thereto”. Tampering with computer source code and Hacking with computer system are offences punishable with imprisonment up to three years and /or may extend up to two lakh rupees. Publishing with information obscene in electronic form is an offence punishable with five years imprisonment and fine of one lakh rupees and in the event of a second or subsequent conviction ,imprisonment up to ten years and also with fine up to two lakh rupees. The penalty for misrepresentation is punishable up to two years and / or fine up to one lakh rupees. There are provisions prescribing for penalty for breach of confidentiality and privacy. Any computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, in respect of which any provision of The Information Technology Act, 2000 made thereunder has been or is being contravened, shall be liable to confiscation. Property in its traditional sense is not an ideal jurisdiction for the action for breach of confidence. Contract, tort and equity are more appropriate in that they focus on entitlement rather than ownership and this more accurately reflects rights over information than does property. YOG - THERAPY HEALTH & MEDITATION The lack of scientific knowledge and general information regarding anatomy and physiology of human body provides misconception about the importance of yogic practice. The physiology of yogic practice differs from the physical exercise, but on the other hand , this is a process of synchronisation of the physical existence and mental activity in human body which , apart from physical strength provides renunciation to the materialistic approach for the advancement of moral ,ethical and spiritual values. The nature of every yogic practice is psycho-physiological and if this conceptual background is not clearly understood , the whole outlook on yogic practices will be distorted . Yoga literally means Union .The whole system of yoga was developed to attain the highest state of “CHITTA” or consciousness where everything is merged into absolute consciousness. Patanjali - the Father yoga has explained eightfold system of Yoga to advance oneself on the spiritual path while Hata-yoga explore the bodily postures - ASANAS as well as PRANAYAMAS , to prpare oneself for the higher yogic practices like Dharna, Dhyan ,Samadhee,. Today what is in vogue are these Hata-yogic practices i. e. Asanas , pranayamas Bandhas , Mudras ,Kriyas etc. which are known to contributed for the physical as well as the mental well being . Logical and scientific explanations could be given for traditional technique of various yogic practices in the light of modern science like Anatomy ,Physiology , Biochemistry etc.. Due to these researches, it is now Possible that the psycho-physiological channels, through which the yoga practices work in side the body , are being understood through these sciences. The anatomic- physiological mechanism is understood and is directly involved in the yogic practice .The physiology of yogic practice including its technique effect and the available information are based on scientific researches . Electromyographic (EMG) studies have also shown that the effortlessness and the relaxation brought by the above method could reduce the muscular activity or tension in the muscles even is case of paschimottan & Ardhamatsyendrasana The duration of the maintenance was also increased by 10 to 50 % and the Heart rate did not increase more than 6%. This indicates that the energy cost of these asanas was reduced to great extent. Therefore there is no question of exhaustion or strain on the cardiorespiratory systems . Individual could spend to maintain the asanas , which is important to get maximum benefits from the adopted postural pattern. The passive stretching of muscles and ligaments gets more time to percolate deeply upto the periosteum
(covering of the bone) and capsules and stimulates the circulation around them. This mild exercise thus maintains their normal healthy condition by making them more flexible. Anatomico-physiological mechanisms develops through asanas which can be classified; - (I) corrective asanas and (II) cultural asanas. These asanas are further classified in three divisions . Sub group (A) This group of asanas predominantly work on and through: - 1. Visceral organs and the sensory inputs from them , arising due to the pressure changes brought about in the intra-abdominal cavity, e.g Yaga mudra paschimottan, Mayurasana, Ardha- Matsyendrasana, SuptaVajrasana, Halasana, Pawan-muktasana etc.
2. Muscles and nerves of the vertebral column as well as the joints and ligaments of the same, e.g.
Bhujangasana, Shalabhasana, Dhanurasana, Ardhamatsyendrasana, Chakrasan, Vakrasana, Ushtrasanasub group (B) These asanas predominently work on and through various proprioceptive mechanisms of the skeletal muscles of the body e.g. Baddha padmasana, Gomukhasana, Matsyasana Vajrasana, Trikonasan , Bhadrasana, Padahastasana, SuptaVajrasana etc. Sub group © These asanas predominantly work on and through the vestibule organ for the sense. Of body balance, e.g. shirshasana, Sarvangasana, Viparitkarni, Garudasana, Vrishchikasana etc.
2. Relaxartive Asanas : These are meant for the relaxation of body and mind which helps the
corrective posture and their nmechanism . They remove the physical and mental tensions and work at the level of consciousness. These asanas even assist meditative asanas and pranayamas, dhyan etc. e.g. shavasana and Makarasana. 3. Meditative asanas : these asanas provide a comfortable and stable sitting position of body for a steady mind for meditation, dhyan etc. e.g. padmasana, Siddhasana, Swastikasana, Samasana. Now let us consider the salient features of these groups and their possible mechanisms in the body. CULTURAL ASANAS:- Important objectives of cultural asanas could be summarised as follows :
1. To produce physiological balance in different systems of the body for their harmonious working.
This will provide the best organic vigour to the individual
2. To train the nervous system, specially the autonomic nervous system in such a way that it could
easily bear the interaction of spiritual force (Kundalini) when aroused.
3. to bring in stability and peace of mind as well as a sense of well being . To condition various
joints. Their muscles and tendons to offer a stable and comfortable posture for higher practices like pranayama, dharana dhyan etc. Salient features : (1) The movements to acquire and then to release any asana, are very smooth and slow. That is why the reciprocal activity in the muscles and joints can have full play and gets maximum time to correct the tone in the muscles and to influence circulation around them. There slow movements and the maintenance of asana in the relaxed way, require minimum muscular activity and energy and therefore they do not put any burden on the systems. Thus heart rate, respiration rate remain in the normal range. This indicates no strain on the cardio-respiratory mechanism. (2) In asanas like paschimottanasan, Halasan, Chakrasan, relaxation in the final posture allows gravity to act as a stretching force and the muscles are passively stretched. In asanas like Vakrasana, Ardha-matsyendrasana, matsyasana, the locks and holds help the muscles to remain in stretched condition, while in Bhujangasana , shalabhasana, Dhanurasana etc. an effort to maintain the posture stretches the muscles. Such passive stretching brings down the muscle tensions and thereby correct the tone in reciprocal group of muscles. (3) Cultural asanas provide best possible movements for the spinal column.(I) Forward bending (Flexion) paschimottanasan Halasana, Yoga Mudra(ii) Backward bending (extension) Bhujangasana, Dhanurasana, ushtrasana, Matsyasana, Naukasana(iii) Lateral bending on right & left sides- chakrasana (as developed by swami Kuvalayananda) ,konasana (iv) Rotation of the spine in vertical axis- Vakrasana(swami kuvalayana nda) Matsyendrasana (v) Topsy -turvy and balancing against gravity- Sarvangasana, Shirchasana, Viparitkarni, Mayurasana, Kukkutasana, Bakasana. Even the trunk movements are also slow and hence there is a gradual movement of the vertebrae. This exercise keeps the spine flexible and elastic or supple and prevents gighdity of its muscles and joints. In growing children(above 12 years of age) the growth and development of the individual vertebra by stretching or producing traction in them. The nutrition of the joint is improved and the waste products are efficiently removed. In sarvangasana, for example due to the chin-lock position of the head, the arteries of the cervical spine are stretched. It presses the soft tissues., Jugular veins and thyroid gland and causes temporary redistribution of the flow of blood from the brain. When the pressure is removed, the reactive increase in the blood supply probably causes the effective mixing of thyroid hormones with the circulation.
BHARTIYA YOG THERAPY , HEALTH & MEDITATION CENTRE, ALLAHABAD Yog therapy may help in espousing the cause for uplifting the norms and human values by affiliation to the process of synchronisation in the Human Body and Mind through consistent efforts as to provide a congenial atmosphere for social coordination without discrimination to caste, creed, sex and culture and thereby renunciation to the materialistic approach for advancement of spiritual moral and ethical values. If the individual is doing some mental work having more involvement in a sitting gesture , there is a gradual declination for the physical activities and ultimately one is required to get preventive measurement as to prevent the ailments of blood pressure , diabetes , obesity , digestive disorder and respiratory problems, which may be cured by improving the health and better living. The Yogic Science may develop and evolve the micro - Yogic System By which ; the stagnation in the harmonic process is rectified. This process inculcate the different Body systems like Respiratory System , Nervous System, Blood Circulatory System, Digestive System etc. resulting the better coordination in between Mind & Body thereon. In the present time there is the need of a healthy human being in a healthy society to construct a healthy Nation by following our ancient Indian Culture i.e. YOG , which not only increase the Age of human being, a Healthy Human being , but in a short time, it helps an individual to improve the efficiency in discharge of different nature of work assigned to him as his duty towards family & the Society at large. There is no difference in the object sought. Virtue , devotion and spiritual communication are everywhere made up in every human being . Mercy and affection are same in every human body but the doctrinaire may diverge as different from one and another . The path choose n for reaching to the goal may be by steamer or by the train but the ultimate gospel is to attend the happiness and the peace of the mind. This is the ultimate destination of all the religion . Yog is a process to achieve its purpose . Inactivity should be avoided by all means . Activity always means resistance . Resist all evils , mental & Physical ; and when you have succeeded in resisting , then will calmness and positive thinking come. This is the purpose of YOG THERAPY & MEDITATION. All knowledge ,therefore , secular or spiritual , is in the human mind . In many cases it is not discovered , but remains covered , and when the covering is being slowly taken of , the ignorance is lifted . This is the objective of the life . Our feelings and action - our tears and our smiles , our joys and griefs , our weeping and our laughter , our curses and our blessings, our praises and our blames - every one of these we may find, if we calmly our own selves , to have been brought out from within our selves. The fire is struck from it ,which discover power and knowledge. This is the objective and purpose for establishing the Institution with the financial assistance of the citizens not only from Allahabad , but from every individual living in the different part of the Country and abroad who ever might be willing to support the cause . The lack of scientific knowledge and general information regarding anatomy and physiology of human body provides misconception about the importance of yogic practice. The physiology of yogic practice differs from the physical exercise, but on the other hand , this is a process of synchronisation of the physical existence and mental activity in human body which , apart from physical strength provides renunciation to the materialistic approach for the advancement of moral ,ethical and spiritual values. The nature of every yogic practice is psycho-physiological and if this conceptual background is not clearly understood , the whole outlook on yogic practices will be distorted . Yoga literally means Union .The whole system of yoga was developed to attain the highest state of “CHITTA” or consciousness where everything is merged into absolute consciousness. Patanjali - the Father yoga has explained eightfold system of Yoga to advance oneself on the spiritual path while Hata-yoga explore the bodily postures - ASANAS as well as PRANAYAMAS , to prpare oneself for the higher yogic practices like Dharna, Dhyan ,Samadhee,. Today what is in vogue are these Hata-yogic practices i. e. Asanas , pranayamas Bandhas , Mudras ,Kriyas etc. which are known to contributed for the physical as well as the mental well being . Logical and scientific explanations could be given for traditional technique of various yogic practices in the light of modern science like Anatomy ,Physiology , Biochemistry etc.. Due to these researches, it is now Possible that the psycho-physiological channels, through which the yoga practices work in side the body , are being understood through these sciences. The anatomic- physiological mechanism is understood and is directly involved in the yogic practice .The physiology of yogic practice including its technique effect and the available information are based on scientific researches . Electromyographic (EMG) studies have also shown that the effortlessness and the relaxation brought by the above method could reduce the muscular activity or tension in the muscles even is case of paschimottan & Ardhamatsyendrasana The duration of the maintenance was also increased by 10 to 50 % and the Heart rate did not increase more than 6%. This indicates that the energy cost of these asanas was reduced to great extent. Therefore there is no question of exhaustion or strain on the cardiorespiratory systems .
Individual could spend to maintain the asanas , which is important to get maximum benefits from the adopted postural pattern. The passive stretching of muscles and ligaments gets more time to percolate deeply upto the periosteum (covering of the bone) and capsules and stimulates the circulation around them. This mild exercise thus maintains their normal healthy condition by making them more flexible. Anatomico-physiological mechanisms develops through asanas which can be classified; - (I) corrective asanas and (II) cultural asanas. These asanas are further classified in three divisions . Sub group (A) This group of asanas predominently work on and through: - 1. Visceral organs and the sensory inputs from them , arising due to the pressure changes brought about in the intra-abdominal cavity, e.g Yaga mudra paschimottan, Mayurasana, ArdhaMatsyendrasana, Supta- Vajrasana, Halasana, Pawan-muktasana etc. 1. Muscoles and nerves of the vertebral column as well as the joints and ligaments of the same, e.g. Bhujangasana, Shalabhasana, Dhanurasana, Ardhamatsyendrasana, Chakrasan, Vakrasana, Ushtrasanasub group (B) These asanas predominently work on and through various proprioceptive mechanisms of the skeletal muscles of the body e.g. Baddha padmasana, Gomukhasana, Matsyasana Vajrasana, Trikonasan , Bhadrasana, Padahastasana, Supta- Vajrasana etc. Sub group © These asanas predominently work on and through the vestibular organ for the sense. Of body balance, e.g. shirshasana, Sarvangasana, Viparitkarni, Garudasana, Vrishchikasana etc. 1. Relaxartive Asanas : These are meant for the relaxation of body and mind which helps the corrective posture and their nmechanism . They remove the physical and mental tensions and work at the level of consciousness. These asanas even assist meditative asanas and pranayamas, dhyan etc. e.g. shavasana and Makarasana. 2. Meditative asanas : hese asanas provide a comfortable and stable sitting position of body for a steady mind for meditation, dhyan etc. e.g. padmasana, Siddhasana, Swastikasana, Samasana. Now let us consider the salient features of these groups and their possible mechanisms in the body. CULTURAL ASANAS:- Important objectives of cultural asanas could be summarised as follows : 1. To produce physiological balance in dirrerent systems of the body for their hormonious working. This will provide the best organic vigour to the individual 2. To train the nervous system, specially the autono-mic nerous system in such a way that it could easily bear the interaction of spiritual force (Kundalini) when aroused. 3. to bring in stability and peace of mind as well as a sense of well being . To condition various joints. Their muscles and tendons to offer a stable and comfortable posture for higher practicers like pranayama, dharana dhyan etc. Salient features : (1) The movements to acquire and then to release any asana, are very smooth and slow. That is why the reciprocal activity in the muscles and joints can have full play and gets maximum time to correct the tone in the muscles and to influence circulation around them. There slow movements and the maintenance of asana in the relaxed way, require minimum muscular activity and energy and therefore they do not put any burden on the systems. Thus heart rate, respiration rate remain in the normal range. This indicates no strain on the cardiorespiratory mechanism. (2) In asanas like paschimottanasan, Halasan, Chakrasan, relaxation in the final posture allows gravity to act as a stretching force and the muscles are passively streched. In asanas like Vakrasana, Ardha-matsyendrasana, matsyasana, the locks and holds help the muscles to remain in stretched condition, while in Bhujangasana , shalabhasana, Dhanurasana etc. an effort to maintain the posture stretches the muscles. Such passive stretching brings down the muscle tensions and thereby correct the tone in reciprocal group of muscles. (3) Cultural asanas provide best possible movements for the spinal column.(I) Forward bending (Flexion) paschimottanasan Halasana, Yoga Mudra(ii) Backward bending (extension) Bhujangasana, Dhanurasana, ushtrasana, Matsyasana, Naukasana(iii) Lateral bending on right & left sides- chakrasana (as developed by swami Kuvalayananda) ,konasana (iv) Rotation of the spine in vertical axisVakrasana(swami kuvalayana nda) Matsyendrasana (v) Topsy -turvy and balancing against gravity- Sarvangasana, Shirchasana, Viparitkarni, Mayurasana, Kukkutasana, Bakasana. (4) Even the trunk movements are also slow and hence there is a gradual movement of the vertabrae. This exercise keeps the spine fiexible and elastic or supple and prevents gighdity of its muscles and joints. In growing children(above 12 years of age) the growth and development of the individuaol vertebra by stretching or producing traction in them. The nutrition of the jointy is improved and the waste
products are efficiently removed. In sarvangasana, for example due to the chin-lock position of the head, the arteries of the cervical spine are stretched. It presses the soft tissues., Jugular veins and thyroid gland and causes temporary redistribution of the flow of blood from the brain. When the pressure is removed, the reactive increase in the blood supply probably causes the effective mixing of thyroid hormones with the circulation. (5) The exercise of the trunk portion is more emphasised . The circulation is increased and the nerves are toned up as the may get fresh nourishment. This strengthening of the nerves in the viscera including spinal cord and sympathetic cord is necessary to unable and individual to withstand powerful action of the kundalini. (6) The increased visceral circulation and the alternate pressure changes brought about in the viscera promotes and the preserves the health of the endocrine glands in the abdominal and pelvic region and the provides a proper background for the nervous activities . (7) The typical postural patterns of the cultural asanas when practised judiciously ,would definitely remove minor functional and structural defects .The corrective asanas are practised in effortless manner the cortical activity (intellect) does not interfere with cerebellum- hypothalamus functional axis, and that is why emotional tension can not play there vicious role in the body. (8) In topsy- turby postures ,the cardiovascular reflex mechanisms are stimulated. The question of vericose veins would not arise if one practises these postures daily. It also keeps the blood pressure at the optimum level during day to day activities of the body. (9) These balancing asanas stimulate vestibular organs of balance and improve its function. RELACTIVE ASANAS The aim relaxation in Yoga is directly related to the awareness and the aims at the release of the tension working at the lavel of the consciousness (chitta).The concept of the Chitta - Vishranti ,i.e. the tranquility in the consciousness , is emphasised in the hath-yog which realised the value of the relaxed mind . They knew the mental tensions can give rise to physical (muscular) tensions. Tensed muscles obstruct the blood flow and easily get exhausted. Shavasan and Makarasana are two asanas from Hatha Yogic school to provide best relaxation supine and prone positions of the body respectively .It should be born in mind that this is not only a ‘resting condition ‘ of the body or mind , or sleeping but a conscious relaxation .On the contrary the relaxation of mind and chitta makes the individual more fresh and energetic against the tiring routine of work and different types of tensions and stresses of life. ASANAS AND EXERCISES Many people consider asanas as exercises and practise them on exercise pattern . Keeping their therapeutical view aside , if asana are to be practised to maintain normal health of body and mind ,or to advance on the path of yoga,then they differ from exercises in many respects. Let us see these differences one by one. 1. The movements ,are slow , steady and smooth to attain and to release any asana. Exercises are performed in a fast or speediy manner leading to an exertion and fatigue All the movements are gone through woth a jumpy and jerky element . 2. The effect of asanas is ,more on the trunk part . Proprioceptive and visceroceptive mechanisms are given free scope . the asanas produce pressure changes in the internal cavities of the visceral organs which influence the circulation in the abdominal part . Nerve roots in the abdominal region are toned up. Movements of the extremities are more prominent and also important while exercise to the trunk is secondary in exercises. It acts mainly on superficial skeletal muscles and their nerves. The circulation is increased in the periphery. The movements in exercises are quick or rapid and may be of repetitive nature. 3. In asanas, movements of the spinal column are done in all most all directions and with their possible range of movements. The vertebrae are not compressed in only one directyion but are stretched in all the four directions and in a rotation. There is a counter movement for every movement of the spine in asanas. The deep muscles of the spine and its ligaments are brought into action. 4. There is no purpose of muscle building in asanas. Heavy muscular activity is avoided in asanas and hence the energy requirement is also less than that of exercises. This does not put any burden on cardio-respiratory mechanisms on the contraty the tensions are reduced at various levels. Heavy muscle masses are built through exercises for more and more muscular strength. These bumpy muscles are cultivated for a manly look and are regarded as the sign of physical fitness and vigour, But really speaking they do not improve stamina or physical end urance. After a particul;ar age these over developed muscles act mainly as parasites, saping their energy and nutrition from other tissues. They become loose and give an ugly shape to the body. Heavy muscular exercises increase the work of cardiovascular system putting undue strain on it.
increase beyond a particular level. 6. As the volunatary efforts are withdrawn in the final stage of asanas rthe activity of the motor cortex is gradually reduced or even withdrawn completely. One remains aware of the external things (external awareness) since the4 reaction is to be measured outside the body with the judgement of exteroceptors e.g. bull-worker exercise. The motivational part is also different and therefore they should never be confused for each other. It is clear that the health and hygien of the internal organs is maintained by asanas on the physical level. The sensory inputs which are initiated in the trunk region, due to the special pattern maintained for some length of time, bring about the nerve culture. A proper tone in the neuro-muscular system is established. A feling of exhilaration, freshness, lightness as well as the stability and balancer of mind are common benefits of asanas even to the physical culturist. One should, however, take into account one’s own limitations due to age, sex and the bodily (hypertonic or hypotonic) conditions, regidity or flexibility of the joints etc, while practising asanas. One should avid pulling or pressing of the body parts or undue strain in order to emulate the perfect pattern of the asana, which nay otherwise cause a sprain, tear of fibrou8s tissue or an injury to the joints. Asanas should never be resorted to in a competitive spirit and no violent efforts, to reach the final posture, are to be made ‘pleasant pain’ is the limit of normal range of movement as has been described above which would lead one progressively towards the final posture of asana, one day. The respiration is semi-involuntary in nature That means it takes place automatically as well as controlled by our desire. When we are not thinking about our breathing at all. When we make changes in the depth and duration of inhalation or exhalation etc. it becomes a voluntary control . Thus the respiratory centre is also influenced by the impulses from higher centres in the brain i.e. cerebral cortex. By volition we can breath in any manner and at any rate we please. We can also hold our breath upto a certain limit where the life is involved. We release tension when we exhale and we become more active when we inhale. Respiratory system also contributes to the awareness. Thermoregullation, Water balance, Detoxication and Excretion are other functions of respiratory system. DIAPHRAGM:It is probably the most important voluntary muscle in the human body which divides the thorax from the abdomen, serving as a partition between the two. It is a dome shaped muscle and its convex surface touches the heart and the lungs. Diaphragm moves up and down several times a minute and participates in respiration. When it contracts it descends with the result that the vertical diameter of the thorax increases, the lungs expand and an inhalation takes place. During exhalation diaphragm relaxes to resume its former position. Due to this rising of the diaphragm the thorax decreases thus exerting a pressure on the lungs and hence an exhalation results. Along with the normal inhalation and exhalation the downward and upward movements of diaphragm produce relatively positive (+ve) or negative (- ve) pressures in the visceral cavities which are required for some normal functions like micturation, defecation inhalation etc. The breathing in which the movement of diaphragm becomes more prominent is known as diaphragmatic breathing. NERVOUS SYSTEM :- Main function of the nervous system is to regulate the activities of the different organs and of the entire organism. The nervous system includes the brain, spinal cord and nerves. For our convenience it may be divided into two divisions (1) the central nervous system and (2) autonomic nervous system which is further divided into two parts (1) sympathetic and (2) parasympathetic nervous systems. The central nervous system consists of the brain, spinal cord, 12 pairs of cranial nerves arising from the brain and 31 pairs of spinal nerves. These nerves give off branches to the different organs and tissues. So, the objective of Yogic practices on their physical side is to avoid disease and to promote health by establishing and maintaining such physiological harmony in the human body.
5. Skeletal muscles are passively stretched and hence the muscle tone can not
SYNOPSIS ON ADVOCATE ACT. 1. Silent Feature Of The Indian Bar Council Act 1926. The Bar Council was to be constituted for the High Courts (section-3). The act was constituted for conferring powers and imposing duties relating to the legal practitioners. There were 15 members. The Advocate General and 4 members were nominated by the High Court while 10 members were elected by the Advocates of the High Court from amongst themselves. The Bar council was authorised to make Rules and to regulate the admission of persons to be the advocates
at High Court without affecting the powers of the High Court to refuse admission to any person at its discretion (section-9) . The function of the Bar Council was merely advisory in nature The role of the advocates was to be maintained by the High Court (Section 8(2)) . The Bar Council had the disciplinary power over the Advocates. There are instances that the advocates are other High Courts were refused permission to appear and plead in another High Court for the want of permission of the respective Chief Justice. 2.ALL - INDIA BAR COMMITTEE - 1951 . The said committee was constituted for achieving “ A claim for the fulfilment of the cherished ideal “ and to maintain autonomy and unified All India Bar by the legal fraternity. The Govt of India appointed All India Bar Committee under the Chairmanship of Hon’ble Justice S.R. Das of Hon’ble Supreme Court. The Committee made recommendations for providing a common Role of an advocate who would be entitled to practice in all courts in all over country. The principle recommendations includes; 1 To maintain a register of all existing Advocates entitled to practice in respective High Courts. 2. Vakil and pleader entitled to practice in district and other subordinate courts . 3. State Bar Council should sent copy to All India Bar Council . The requirement of leave for practising in any other High Court as required u/s 4 of the Legal Practitioner Act, 1879 was recommended for no more in existence . The insistent on a certain number of practice in High Court as a condition of eligibility of the Supreme Court had not yielded satisfactory results. The continuance of dual system was considered to be nothing more than the division of the labour which necessity ensures for the better preparation of the codes as to unable to the court to effect a better and forceful presentation of clients points of view before the Judge. The Committee did not feel the need of separate Bar Council for the Supreme Court on the basis of Law Commission, 1955 considering 14th report on reforms of judicial administration,1958. It was felt that there should not be any further requirement of non-graduate pleaders or Mukhtyars. However, it was felt that for the efficient working of the court, it should be assisted by a Bar, which has given thought and labour to the preparation of the case. The commission also favoured the division into senior Advocates and Advocates. The Senior Advocates were precluded from expected certain type of works except appearing, when brief with a junior as to give them and honoured position to unable them to construct of important work. In 1961 Parliament enacted the Advocate Act. This act created State Bar Council and Bar Council of India at the centre. There are certain functions inter-alia to admit person as Advocate maintain such role determine cases of misconduct laid down standard of professional conduct and etiquette for Advocates etc. Any Advocate may be designated as the senior Advocate, if the Supreme Court or High Court is of the opinion that by virtue of ability, experience and standing at the Bar he deserves such distinctions. “A profession is required to value to the social objective such as service, sacrifice and justice and unless the leader of the Bar do some introspection and put the profession back on the rails, all we will be left with its as an occupation and not as profession, A profession oriented to the achievement of the condition of justice in the society which may expose the community of the Advocate from a severe commendation of the society. The lawyers as a profession live and thrive on ambiguity, inherent in, or imparted to words, and the professional deviance of the lawyers is multifaceted”. Thus the proposed amendment in Advocate Act, 1961 of section 4 (1) and section 9(1) may not be substituted in the present proposed amendment propositions . But it should consider for the requirement as per the aspirations of the members of Bar for practising at High Court and there may not be any amendment for the general implementation for all Advocates . No occupation can become a profession without antagonism and struggle. Legal education is where law begins development of legal learning and legal sciences also occur through the Law schools. The fundamental significance of legal education is to built a just society in India. “If law must serve life-the life of the many million masses whose lot has been blood, toil ,tears and sweat - the crucification of the Indo-Anglican system and resurrection of the Indian system is an imperative of independence.” Unless legal activists emerges, the gulf between courts and the poor must remain almost the same.