Justice is the end of government just to enjoy the peace of mind.

0 views
Skip to first unread message

yogesh saxena

unread,
Aug 2, 2008, 12:30:26 PM8/2/08
to Indian Advocates Group
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 re-affirmative 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 .

Reply all
Reply to author
Forward
0 new messages