The purpose of law is to serve the society
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yogesh saxena
Aug 2, 2008, 12:27:35 PM8/2/08
to Indian Advocates Group
The purpose of law is to serve the society. In absence of fulfillment
of the requirement of the public at large, the enforcement of the
legal provisions are of no consequences. It should serve for the
advancement of harmony and social coordination. The rigmarole of
technicalities may not come into the way to defeat the vary purpose
for which the law has been enacted by the representatives of the
peoples. The institutions of legal enforceability can only be run by
the strict enforcement of liability and obligation. Thus in the
present circumstances when we have completely lost our grip on the
foundation of the implementation to the provision of law, we cannot
claim ourselves to be a society equipped with the law and order
situation. The criminal law is completely inapplicable for the vary
reason that the law enforcement agencies who were seldom considered to
be acting for oblique motive, usually dragged in the process as the
destroyer of the provisions in the respect of its implementation for
the advancement of the society.
In such circumstances, judiciary which is enshrined with a power of
judicial accountability has proven to be of significant use for the
implementation of the provision of law. If the accountability of the
administrative authority are given to judicial officers, there are
every possibility of mis- utilization of the judicial power. Thus a
system is required to be evolved in which the erring official dealing
with quashi-judicial powers may be made accountable for the abuse of
discretionary power by the enforceability of the verdict preannounce
by the court of law and if it is found that the decision is vitiated
on account of colourable exercise of power, the disciplinary action
may be recommended against such officer by the superior authority. In
such circumstances, there is again a possibility of making an abuse of
the power conferred with the judicial authority. Thus in order to
make a respectable balance by check and powers, the guidelines are
given by the constitutional courts.
That the subordinate judiciary is recommended by the nomenclatures of
the judicial officers, presiding officer prescribed authority and
judges but by the same time the judges of the High Court and Supreme
Court are represented as the justices. This has been done purposely
in order to provide a harmonious infiltration of the legal provision
with the justifiability of the circumstances in according with
equitable jurisdiction conferred upon the constitutional courts.
However by the efflux of time, the apex court has experienced the
power conferred upon the Hon’ble justices of the High Court for fixing
accountability is not in public interest and rather there are
possibility of misusing the judicial power. Thus the judicial
institution have also faced the similar difficulty what the
administration was facing in dealing with the unsocial elements in the
society.
This is virtually a paradox of the situation that every pillar of the
judicial verdict is founded on the basis of the public opinion and
once the public may start losing its trust in the system, no one can
save the judicial institution from further deterioration and
ultimately it is bound to collapse by its own weight. This is the high
time for revival of the reputation of the judicial institution by
having a new era of the set-up with the changing circumstances of the
social coordination. The law and justice may not be allowed to become
in mute spectator.
There is an alarming situation in dealing with the law and order by
the administration. The old ideology that right is might, is
prevalent in the present circumstances. It is an irony of the
circumstances that in the proceeding for keeping peace and good
behavior by the public and also in respect of a dispute likely to
cause the breach of peace, the title of the immovable property is
seldom taken into consideration by the Magistrate but the paramount
consideration is given for the determination of the possession. This
power is seldom misused by the person having predominating muscle
power for his assistance to usurp the property of the innocent
citizens but the law remain silent spectator of the situation in which
the actual owner is deprived of his valuable property right by the
stronger person. Thus there is a requirement for having some
spontaneous changes in the provision dealing with the situation
regarding apprehension of breech of a peace by the Magistrate. Now
coming to the other side of the picture, the law has been formulated
in order to put a restrictions on the power of the Magistrate to
decide the factotum of the title but the power has been deled with
determination of right by the court of civil jurisdiction. This is a
hobson’s choice. There is a counter productivity in every exercise of
power and as such the law has tried to make a check and balance. The
practical approach is neither in demoralizing the innocent public from
the external aggression of the unsociable element through the
production of legal provision and the interpretation thereof but to
dealt with the circumstances as actual justice may be imparted in
favour of the genuine person. The matter has been left over to the
Hon’ble court of the judicial hierarchy to provide a bonfide use of
the power in dealing with the circumstances of the case. The mere
infraction of the provision of law may not be sufficient for envoking
the jurisdiction of the constitutional court, but an endeveour is
required to be seen as to whether the technicalities of the legal
provision are not creating a bar to provide substantial justice to
affected person in respect of the enforceability of his legal right.
The proceedings of the mutation meant for recording the name of an
individual for realization of the revenue by the government and as
such the same are considered as the summary proceedings. This is a
matter of astonishment that the immovable property may be recorded in
the name of stranger other than the owner but the law may not provide
any assistance to the actual owner. The remedy to the true owner is
by way of filling a suit of declaration or injunction as the case may
be but the revenue courts dealing with the power of recording the name
of the tenure holder are not empowered to look into the title and
there by to decide the rights in respect of recording the name on the
basis of title. Thus in case of transaction of the property usually
made after due verification of the person recorded in revenue record
or before records maintain by the municipal board but in case if the
title is not vested with the person executing the sale deed than the
true owner has to file a civil suit for taking the possession back
from the person in whose favour the land or the property has been
disposed of by the pretender/ rank usurper.
The land is acquired and the person recorded as the tenure holder may
be entitled to get the compensation. The money in lieu of the value
of the land is deposited in the name of the person in whose favour the
land was directed to be recorded in the mutation proceedings. The
only recourse open to innocent owner for realization of the money of
compensation is by filling a suit of declaration for entitlement of
such amount of compensation from the person in whose favour the land
acquisition authority have handed over the money. This is very
strange situation to an individual having the actual ownership and the
title in the said property.
The law of adverse possession is further having a disastrous
implication to the rights of the actual owner who is occupied in
respect of his job or limitation dealing with the responsibility of a
professional and the service class by deprivation and rather the
surrender of their property rights. This is again leading to the
unwanted litigation to the innocent citizens. However the law of
adverse possession is still being respected by the protector of the
law enforcement agencies meant with the power of maintaining the
tranquillity in the public administration. This is unnecessary a
dragging of the actual owner to the unwanted litigation.
It is further a conflict by the cantina of judgement on the point of
realisation of the insurance coverage to the dependent of the person
after the death of the assured individual under a Life Insurance
Policy. According to the section 39 of Life Insurance Act, the
nominee may withdraw the amount of compensation but the same is
attributed to legal heir and representative of the diseased. Thus
after the death of the husband, if the sister remain the nominee even
after the marriage of the assured person having the insurance
coverage, the compensation may be awarded by L.I.C to nominee sister
and in case of strange relationship between the sister of the diseased
husband and the wife of the diseased than the wife has to file to
civil suit for realization of the amount of compensation. This is
wholly impractical approach as the person in need of assured amount
may wait for an indefinite period to taste the fruit of the assured
amount for bringing up the dependent children by the wife after the
death of her husband.
A person walking on foot as pedestrian or riding through the cycle is
hit by a vehicle driven rashly and negligently, then the compensation
may be given to the dependent of the diseased. However, somebody
intentionally commit the murder of such person by the hit of the same
vehicle intentionally to kill him, then no compensation is awardable
under motor-vehicle Act. There are the cases of custodian death and
the pre-planned murder but no compensation is awarded by the State
Government to the dependent of the diseased. On the other hand the
criminal case triable by the court of session or even before the
Magistrate may be withdrawn unilaterally under the provision of
section 321 Cr.P.C. This is very strange that in case of intentional
killing there is no responsibility upon the invader of the law by a
criminal but in case of accident the liability for payment of
compensation is attributed upon the owner of the vehicle. The
insurance company may be assigned with vicarious liability but there
is no safeguard provided to a citizen from murder. Thus the concept
of sovereignty as dependent upon the maxim of saying that the interest
of the society is a paramount consideration of the law is completely
absent in the present atmosphere of our country.
The Chapter III of the constitution of India is dealing with the
fundamental duty of the State Government except certain individual
rights conferred under ‘Article 19 of the constitution and collective
right of conscience, faith and religion under Article 25 of the
constitution of India. Although the violation of any such fundamental
duty of the citizen may give them a power to file a writ petition
under Article 32 and Article 226 of the constitution of India, but
whether the law has made any accountability with such authority who is
indulged for bypassing the law. Thus everywhere against the
arbitrary, discretionary, whimsical action of the officer dealing
with the State responsibility, the option open to an innocent citizen
is to resort the protection of law by filling the suit, writ petitions
and other representation as the case may be. The concept of the
sovereinity vested with the State is not so wider as to drag the
innocent citizen unnecessarily for the infringement of their valuable
rights and a there is a reciprocal obligation upon the State to fix
the responsibility of their officers if there are violation of the
principle of equitable justice and the provision of law. It is very
strange that if an officer is guilty of committing any subordination
to higher authority, he may be punished by the appointing authority in
the disciplinary proceedings but there is no punishment for violating
the law against such officer. Thus in India here is no Rule of Law
but the Rule of Leizure-feir, privilege orientation an the ruthless
power conferred to the politician, bureaucratic and also to the
criminals . The criminal laws are explicit for the purposes of
demonstrating the bonafide of law enforcement agencies. The principle
of reformation of the criminal is of no resort to check the client.
There should be a fear in the mind of the invader of the crime not to
repeat the similar act as the consequences are much severe then the
benefit for commission of the crime. The victim of the crime is
innocent person and as such the revenge from the accused person by the
victim or the dependent of the victim, even though it may be wicked,
it is of natural consequences. We can not shut our eyes on the
reality of this aspect of the picture. The purpose of law is to
provide substantive protection to the society and the social justice
within empowerment of the remedy to the people at large. Let us
examine the legal history for getting the answer of these melodies.
The enacted statutes are derived from the mass of custom and
traditions. The judge made maxims are known as common law. The other
set Rules of consists of convention, understanding habbit, practice
and culture which are regulated by the conduct of several factors
accumulated in nature of human being in associations with sovereign
powers. Initially the British Authority in India was established
through East India Company which got charter on 31st December 1600
from Queen Elizabeth. The company was initially empowered to
formulate the reasonable laws and also to execute them to punish those
criminals who violet them. However the victory of Lord Clive in the
battle of Plasi in 1757 laid down the foundation of the British
Empire. Thus the year of 1765 makes a turning point in Anglo-Indian
history which may be treated as commencing the period of territorial
sovereignty by the East India company. The regulating act set up by
the government of Bengal consisting of a governor-general and four
other councilors in whose power the whole civil and military
government of presidency of Bengal and also the government of
territorial accusition and revenue in the kingdom of Bengal, Orissa
was the beginning of the British Rule in India. The presidency and
concil of Bombay and Madras were subordinate to the Governor-general
and the councils of Bengal which was considered to be the supreme
government. Although the civil jurisdictions of the court was
extended to all the British subjects in the three provinces but the
employees of the company were sued in Bengal to Governor-general and
its council were empowered to enact the rules, ordinances and
regulations for maintaining the good order but simultaneously and
gradually after achieving the absolute power, they have also started
misusing their powers for enactment of law. Although in the act of
settlement of 1781, many changes were made in regulating the law and
order situation the exemptions granted to the public servant from
being protected in respect of their action in due discharge of his
duty is still recognized after gaining the independence from the
system of tyranny and invasion of the British Empire. We have to get
a retrospection’s on such custom and tradition after independence.
The accused person named in the F.I.R has no right to challenge the
lodging of the report in the police station. There is no anticipatory
bail granted to an accused person in State of U.P. In absence of the
defence amenable to innocent person against the false concoction in a
crime may lead to an irreparable loss to the reputation of a citizen.
The law recognizes the right of hearing even in certain administrative
actions affecting the privilege of an individual and are having civil
consequences. There is a thin line of demarcation between the
administrative and quasi-judicial action and in such case arising of
summary proceedings, the opportunity of being heard is provided but an
innocent person falsely implicated in an artificial crime may not be
permissible to take the defense of being an alibi at the time of
commission of the said crime. The maxim “Falsus in uno ; falsus in
omnibus”. Despite knowing this fact that the police is corrupt in our
nation on account of hierarchy of the beurocrates ruling upon them, no
protection has been given to an innocent person against the atrocities
committed by the ruthless administration of criminal justice by the so
called guardian and protector of the public at large.
There are the precedents of overruling the previous law after
interpretation of the provision contain therein. The decision of the
Supreme court is having a binding effect but even the legislation has
got the power to over-rule the said precedent. Sometime on account
of various consideration and the ideology of an individual judge
assigned with the responsibility for having an interpretation to the
provisions of law, may be swept away by the impulsive arguments for
declaring ratio-descend which is alter after the efflux of time and
during the intervening period number of the cases are decided on the
wrong judgement having the foundation of incorrect notions leading to
miseries of number of the litigated but the system has yet not been
evolved to provide a check and balance by the judicial system. Here
are the instances of formulation of the larger bench not only in case
of the conflict of the decision but by the gradual advancement of the
general law in respect of its enforceability in a particular
situation. The case of Sampat Kumar was overruled in L. Chandra kumar
case after a gap of about ten years leading to a situation that this
period the basic feature of the constitution of India empowering and
individual for approaching the Hon'ble High Court for challenging the
judgement of C.A.T remained unassailable by the poor litigants serving
before the Central Government.
The substantial question of law and formulation thereof is a further
dimension for imposing the restrictions upon the power of second
appeal before the High Court. It is seldom found that in concurrent
finding, there is substantial injustice suffered by the litigant. The
judgement is not vitiated on the legal issues but such issues are
dealt with contrary to the pleading on record. Thus when there is a
malafide intention of the subordinate court to dealt with the issue
involved in a civil case, it is very difficult to get the substantial
justice. It is said that fraud and justice do not dwell together as
fraud neither defend nor create any right. In such a situation, the
justice is far away from the approach of the poor litigant who has
come forward for the protection of his right before the court of law.
There are so many obstacle in the process wherein even if it is found
that there is the infraction of valuable rights conferred upon a
citizen but in absence of the remedy due to the rigmarole of
technicalities of limitation, an other procedural justice, he is
helpless to get the enforcement of such rights from the court of law.
There should be a system in which one may espouse his cause by laying
the security to certain extent for adjudication of his cause. The
maxim that if there is a right, there should be a remedy for the
enforcement of such right through the process of law may be made
applicable in such circumstances.
That a poor person is dying through starvation and also on account of
inadequate medical facility which are inherent rights conferred to a
citizen under Article 21 of the constitution of India by implication.
On the other hand, a criminal under preventive detention is provided
every sort of the luxury on the cost of the public while he is
confined in jail for violating the law. If the government is
incapable to provide the minimum guarantee of food and shelter and
also to the employment to a qualified citizen in service, there is no
justification, which may permit the State Government to invest
exorbitant expenditure for maintaining the criminal through such
protection. Thus an existing structure of the society is based on the
orientation of such policy which are artificial for demonstration but
such policy are not meant for the protection of the citizen.
The State Government is seldom found for promulgation of the ordinance
to defeat the right of the public protected through the verdict of the
court of law. There are the instances of accumulation of the
disproportionate assets with the officer empowered to issue the
permit, licenses and quota while having the distribution of the
restricted/ essential commodity. The moment, the citizen is not
amenable to grease the palm by illegal gratification to the officers
assigned with the responsibility of distributing the permit/ licenses
and
And thereafter if per chance, verdict of the court is delivered in his
favour then the ordinance is issued by the respective secretary in the
state government just to defeat a crystal clear right in the favour of
the innocent citizen. There is nexus between the politician and
bureaucrats for the distribution of the disproportionate assets
amongst themselves without having any proper vigilance over
such pathetic situation prevalent in the country after the
independence.
The public good is above the consideration of the individual rights.
There is a delicate balance between the rights and duties and the
fundamental right are only enforceable to the extent that they may not
effect the society leading to public inconvenience . In the recent
case the dimension of administrative or quasi-judicial functions were
transcribed in respect of the dimension given to Article 14 and 19(2)
to 19(6) of the constitution of India. (Consumer Action Group v State
of Tamil Nadu 2000 S.C.C (7) 425.) There is also are gradual
relaxation of the rigour of the rule of natural justice in Aligarh
Muslim University v Mansoor Ali Khan 2000 S.C.C (7) 529.
That the Hon’ble Supreme Court has provided a dimension to the
different articles in order to provide a guidelines for effective
administration of justice. It has been held that no religion
prescribes that the prayer are required to be perform through voice
amplifier or beating of the drum and use of microphone for the
purposes of attending the religious ceremonies has been prohibited in
Church of God (Full Gospel) in India v K.K.R Majestic 2000 S.C.C (7)
282. Thus despite the mandate by issuing the writ of mandamus by the
Hon’ble Supreme Court to the administration at large in the public
interest litigation’s through judicial activism, nothing has been
taken as granted to the public even after declaring the same as the
law of the nation. Thus the judicial procedure, which is based on a
tedious process is required to be provided by fool prove system for
the benefit of the public. The comedy of error does not lie in our
celebrated principles but since there is a complete erosion of the
fear from the mind of the citizen indulge in violating the law and
there is no machinery to make a control upon the simple invasion of
such right, the public is bound to adhere what is given to it by the
grace of the public servant.
The other aspect of the picture is that the officers in the public
administrations have become so privilege oriented that they have
forgotten that they are the servant of the public. They are the
incidents which were highlighted during the reign of British Empire
when the Indians were treated as the slaves but still there was the
respect to the right of the Indians in respect of enforcement of their
privilege conferred in accordance with law. There was I.C.S officer
namely Lobho Prabhu posted as D.M., who was assigned with the
responsibility to get the recruitment over the land of the farmer
betaken away from the clutches of Jamidaar in the area. The D.M. used
to visit on the site of the encroachment and it was only there after
that the actual verdict is pronounced in presence of the affected
parties in presence of public at large and nobody was supposed to
carry on an illegal occupation. The grounds of appeal were limited
only to extent of malafide intention of the judicial officer in
carrying on his duties and as such there was an allegation labeled
against such I.C.S officer to the extent that since he has accepted
the feast given in the honour of the officer by the poor farmer by
offering the Rohu fishes and as such the verdict given In the case in
vitiated. The defense taken at privi council of England that since
the public is the subject of the crown and the I.C.S officer is the
servant of the crown and as such it was not within the power of
servant even to provide sentimental breakdown to the public. The mere
allegation of accepting the post decisional bribe in the form of the
feast was nothing else then to protect the sentiment of a poor
litigant who was given substantive justice after a prolonged
litigation against the Zamindar. Thus there is the definition of the
judicial functioning of the British period which is completely changed
in the present atmosphere after the independence of our country.
The people are scared to make a contact with a police officer as there
is a fear in the mind of the public that in case if they proceed to
approach a police officer, this may ultimately by resultant in
implication of the false case of criminal nature and there after an
association with the harden criminals if they are send to the jail.
This phenomenon is sufficient to drag an individual in the esteem of
crime once the hesitation in particular from remaining aloof from the
realm of criminal activities is taken away from the psychology of an
individual.
The system of criminal trial based participation of the witness is
also full of contradiction to provide substantive justice to an
innocent person from the court of law. It is totally dependent upon
the dimension of the evidence adduce before a court of law that the
punishment is awarded to a citizen sometime even on the sole
testimony of a witness. Can we trust a system where the crime is
committed in the complete animosity at the dead of night when no one
has actually seen the commission of the crime. The police on the
basis of mere suspicion and sometime on the basis of the information
received from the public/ informer may get an innocent person dragged
in the crime. There is no other criteria left open for the police
when the entire burden is casted upon the prosecution to prove a crime
and onus is seldom shifted upon the accused person to prove his
innocence. Can the police administration assigned with the
responsibility may discharge such duties without having a fool proof
machinery to dealt with the criminal. In absence of having a drastic
measurement for adopting the deterrent theory of punishment, there
will be no fear in the mind of the criminal and the crime will
continue uninterruptedly without any check by the present
administration of justice. The system of punitive theory of
punishment with the better responsibility of the citizen indulged in
the crime is required to be administered in the society.
Thus the eradication of the prevailing melody is not dependent upon
any set principle of law, nor the same could be given effect by the
enactment of further stringent provisions of law but the same is
required to be implemented by a major overhauling of the system. Till
a determination of the iron will of the society and the administrator
is not sound enough to override the personal benefit sacrificed for
the benefit of the society, there can not be any change by the mere
enforcement of the provision of the
“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.”
of the requirement of the public at large, the enforcement of the
legal provisions are of no consequences. It should serve for the
advancement of harmony and social coordination. The rigmarole of
technicalities may not come into the way to defeat the vary purpose
for which the law has been enacted by the representatives of the
peoples. The institutions of legal enforceability can only be run by
the strict enforcement of liability and obligation. Thus in the
present circumstances when we have completely lost our grip on the
foundation of the implementation to the provision of law, we cannot
claim ourselves to be a society equipped with the law and order
situation. The criminal law is completely inapplicable for the vary
reason that the law enforcement agencies who were seldom considered to
be acting for oblique motive, usually dragged in the process as the
destroyer of the provisions in the respect of its implementation for
the advancement of the society.
In such circumstances, judiciary which is enshrined with a power of
judicial accountability has proven to be of significant use for the
implementation of the provision of law. If the accountability of the
administrative authority are given to judicial officers, there are
every possibility of mis- utilization of the judicial power. Thus a
system is required to be evolved in which the erring official dealing
with quashi-judicial powers may be made accountable for the abuse of
discretionary power by the enforceability of the verdict preannounce
by the court of law and if it is found that the decision is vitiated
on account of colourable exercise of power, the disciplinary action
may be recommended against such officer by the superior authority. In
such circumstances, there is again a possibility of making an abuse of
the power conferred with the judicial authority. Thus in order to
make a respectable balance by check and powers, the guidelines are
given by the constitutional courts.
That the subordinate judiciary is recommended by the nomenclatures of
the judicial officers, presiding officer prescribed authority and
judges but by the same time the judges of the High Court and Supreme
Court are represented as the justices. This has been done purposely
in order to provide a harmonious infiltration of the legal provision
with the justifiability of the circumstances in according with
equitable jurisdiction conferred upon the constitutional courts.
However by the efflux of time, the apex court has experienced the
power conferred upon the Hon’ble justices of the High Court for fixing
accountability is not in public interest and rather there are
possibility of misusing the judicial power. Thus the judicial
institution have also faced the similar difficulty what the
administration was facing in dealing with the unsocial elements in the
society.
This is virtually a paradox of the situation that every pillar of the
judicial verdict is founded on the basis of the public opinion and
once the public may start losing its trust in the system, no one can
save the judicial institution from further deterioration and
ultimately it is bound to collapse by its own weight. This is the high
time for revival of the reputation of the judicial institution by
having a new era of the set-up with the changing circumstances of the
social coordination. The law and justice may not be allowed to become
in mute spectator.
There is an alarming situation in dealing with the law and order by
the administration. The old ideology that right is might, is
prevalent in the present circumstances. It is an irony of the
circumstances that in the proceeding for keeping peace and good
behavior by the public and also in respect of a dispute likely to
cause the breach of peace, the title of the immovable property is
seldom taken into consideration by the Magistrate but the paramount
consideration is given for the determination of the possession. This
power is seldom misused by the person having predominating muscle
power for his assistance to usurp the property of the innocent
citizens but the law remain silent spectator of the situation in which
the actual owner is deprived of his valuable property right by the
stronger person. Thus there is a requirement for having some
spontaneous changes in the provision dealing with the situation
regarding apprehension of breech of a peace by the Magistrate. Now
coming to the other side of the picture, the law has been formulated
in order to put a restrictions on the power of the Magistrate to
decide the factotum of the title but the power has been deled with
determination of right by the court of civil jurisdiction. This is a
hobson’s choice. There is a counter productivity in every exercise of
power and as such the law has tried to make a check and balance. The
practical approach is neither in demoralizing the innocent public from
the external aggression of the unsociable element through the
production of legal provision and the interpretation thereof but to
dealt with the circumstances as actual justice may be imparted in
favour of the genuine person. The matter has been left over to the
Hon’ble court of the judicial hierarchy to provide a bonfide use of
the power in dealing with the circumstances of the case. The mere
infraction of the provision of law may not be sufficient for envoking
the jurisdiction of the constitutional court, but an endeveour is
required to be seen as to whether the technicalities of the legal
provision are not creating a bar to provide substantial justice to
affected person in respect of the enforceability of his legal right.
The proceedings of the mutation meant for recording the name of an
individual for realization of the revenue by the government and as
such the same are considered as the summary proceedings. This is a
matter of astonishment that the immovable property may be recorded in
the name of stranger other than the owner but the law may not provide
any assistance to the actual owner. The remedy to the true owner is
by way of filling a suit of declaration or injunction as the case may
be but the revenue courts dealing with the power of recording the name
of the tenure holder are not empowered to look into the title and
there by to decide the rights in respect of recording the name on the
basis of title. Thus in case of transaction of the property usually
made after due verification of the person recorded in revenue record
or before records maintain by the municipal board but in case if the
title is not vested with the person executing the sale deed than the
true owner has to file a civil suit for taking the possession back
from the person in whose favour the land or the property has been
disposed of by the pretender/ rank usurper.
The land is acquired and the person recorded as the tenure holder may
be entitled to get the compensation. The money in lieu of the value
of the land is deposited in the name of the person in whose favour the
land was directed to be recorded in the mutation proceedings. The
only recourse open to innocent owner for realization of the money of
compensation is by filling a suit of declaration for entitlement of
such amount of compensation from the person in whose favour the land
acquisition authority have handed over the money. This is very
strange situation to an individual having the actual ownership and the
title in the said property.
The law of adverse possession is further having a disastrous
implication to the rights of the actual owner who is occupied in
respect of his job or limitation dealing with the responsibility of a
professional and the service class by deprivation and rather the
surrender of their property rights. This is again leading to the
unwanted litigation to the innocent citizens. However the law of
adverse possession is still being respected by the protector of the
law enforcement agencies meant with the power of maintaining the
tranquillity in the public administration. This is unnecessary a
dragging of the actual owner to the unwanted litigation.
It is further a conflict by the cantina of judgement on the point of
realisation of the insurance coverage to the dependent of the person
after the death of the assured individual under a Life Insurance
Policy. According to the section 39 of Life Insurance Act, the
nominee may withdraw the amount of compensation but the same is
attributed to legal heir and representative of the diseased. Thus
after the death of the husband, if the sister remain the nominee even
after the marriage of the assured person having the insurance
coverage, the compensation may be awarded by L.I.C to nominee sister
and in case of strange relationship between the sister of the diseased
husband and the wife of the diseased than the wife has to file to
civil suit for realization of the amount of compensation. This is
wholly impractical approach as the person in need of assured amount
may wait for an indefinite period to taste the fruit of the assured
amount for bringing up the dependent children by the wife after the
death of her husband.
A person walking on foot as pedestrian or riding through the cycle is
hit by a vehicle driven rashly and negligently, then the compensation
may be given to the dependent of the diseased. However, somebody
intentionally commit the murder of such person by the hit of the same
vehicle intentionally to kill him, then no compensation is awardable
under motor-vehicle Act. There are the cases of custodian death and
the pre-planned murder but no compensation is awarded by the State
Government to the dependent of the diseased. On the other hand the
criminal case triable by the court of session or even before the
Magistrate may be withdrawn unilaterally under the provision of
section 321 Cr.P.C. This is very strange that in case of intentional
killing there is no responsibility upon the invader of the law by a
criminal but in case of accident the liability for payment of
compensation is attributed upon the owner of the vehicle. The
insurance company may be assigned with vicarious liability but there
is no safeguard provided to a citizen from murder. Thus the concept
of sovereignty as dependent upon the maxim of saying that the interest
of the society is a paramount consideration of the law is completely
absent in the present atmosphere of our country.
The Chapter III of the constitution of India is dealing with the
fundamental duty of the State Government except certain individual
rights conferred under ‘Article 19 of the constitution and collective
right of conscience, faith and religion under Article 25 of the
constitution of India. Although the violation of any such fundamental
duty of the citizen may give them a power to file a writ petition
under Article 32 and Article 226 of the constitution of India, but
whether the law has made any accountability with such authority who is
indulged for bypassing the law. Thus everywhere against the
arbitrary, discretionary, whimsical action of the officer dealing
with the State responsibility, the option open to an innocent citizen
is to resort the protection of law by filling the suit, writ petitions
and other representation as the case may be. The concept of the
sovereinity vested with the State is not so wider as to drag the
innocent citizen unnecessarily for the infringement of their valuable
rights and a there is a reciprocal obligation upon the State to fix
the responsibility of their officers if there are violation of the
principle of equitable justice and the provision of law. It is very
strange that if an officer is guilty of committing any subordination
to higher authority, he may be punished by the appointing authority in
the disciplinary proceedings but there is no punishment for violating
the law against such officer. Thus in India here is no Rule of Law
but the Rule of Leizure-feir, privilege orientation an the ruthless
power conferred to the politician, bureaucratic and also to the
criminals . The criminal laws are explicit for the purposes of
demonstrating the bonafide of law enforcement agencies. The principle
of reformation of the criminal is of no resort to check the client.
There should be a fear in the mind of the invader of the crime not to
repeat the similar act as the consequences are much severe then the
benefit for commission of the crime. The victim of the crime is
innocent person and as such the revenge from the accused person by the
victim or the dependent of the victim, even though it may be wicked,
it is of natural consequences. We can not shut our eyes on the
reality of this aspect of the picture. The purpose of law is to
provide substantive protection to the society and the social justice
within empowerment of the remedy to the people at large. Let us
examine the legal history for getting the answer of these melodies.
The enacted statutes are derived from the mass of custom and
traditions. The judge made maxims are known as common law. The other
set Rules of consists of convention, understanding habbit, practice
and culture which are regulated by the conduct of several factors
accumulated in nature of human being in associations with sovereign
powers. Initially the British Authority in India was established
through East India Company which got charter on 31st December 1600
from Queen Elizabeth. The company was initially empowered to
formulate the reasonable laws and also to execute them to punish those
criminals who violet them. However the victory of Lord Clive in the
battle of Plasi in 1757 laid down the foundation of the British
Empire. Thus the year of 1765 makes a turning point in Anglo-Indian
history which may be treated as commencing the period of territorial
sovereignty by the East India company. The regulating act set up by
the government of Bengal consisting of a governor-general and four
other councilors in whose power the whole civil and military
government of presidency of Bengal and also the government of
territorial accusition and revenue in the kingdom of Bengal, Orissa
was the beginning of the British Rule in India. The presidency and
concil of Bombay and Madras were subordinate to the Governor-general
and the councils of Bengal which was considered to be the supreme
government. Although the civil jurisdictions of the court was
extended to all the British subjects in the three provinces but the
employees of the company were sued in Bengal to Governor-general and
its council were empowered to enact the rules, ordinances and
regulations for maintaining the good order but simultaneously and
gradually after achieving the absolute power, they have also started
misusing their powers for enactment of law. Although in the act of
settlement of 1781, many changes were made in regulating the law and
order situation the exemptions granted to the public servant from
being protected in respect of their action in due discharge of his
duty is still recognized after gaining the independence from the
system of tyranny and invasion of the British Empire. We have to get
a retrospection’s on such custom and tradition after independence.
The accused person named in the F.I.R has no right to challenge the
lodging of the report in the police station. There is no anticipatory
bail granted to an accused person in State of U.P. In absence of the
defence amenable to innocent person against the false concoction in a
crime may lead to an irreparable loss to the reputation of a citizen.
The law recognizes the right of hearing even in certain administrative
actions affecting the privilege of an individual and are having civil
consequences. There is a thin line of demarcation between the
administrative and quasi-judicial action and in such case arising of
summary proceedings, the opportunity of being heard is provided but an
innocent person falsely implicated in an artificial crime may not be
permissible to take the defense of being an alibi at the time of
commission of the said crime. The maxim “Falsus in uno ; falsus in
omnibus”. Despite knowing this fact that the police is corrupt in our
nation on account of hierarchy of the beurocrates ruling upon them, no
protection has been given to an innocent person against the atrocities
committed by the ruthless administration of criminal justice by the so
called guardian and protector of the public at large.
There are the precedents of overruling the previous law after
interpretation of the provision contain therein. The decision of the
Supreme court is having a binding effect but even the legislation has
got the power to over-rule the said precedent. Sometime on account
of various consideration and the ideology of an individual judge
assigned with the responsibility for having an interpretation to the
provisions of law, may be swept away by the impulsive arguments for
declaring ratio-descend which is alter after the efflux of time and
during the intervening period number of the cases are decided on the
wrong judgement having the foundation of incorrect notions leading to
miseries of number of the litigated but the system has yet not been
evolved to provide a check and balance by the judicial system. Here
are the instances of formulation of the larger bench not only in case
of the conflict of the decision but by the gradual advancement of the
general law in respect of its enforceability in a particular
situation. The case of Sampat Kumar was overruled in L. Chandra kumar
case after a gap of about ten years leading to a situation that this
period the basic feature of the constitution of India empowering and
individual for approaching the Hon'ble High Court for challenging the
judgement of C.A.T remained unassailable by the poor litigants serving
before the Central Government.
The substantial question of law and formulation thereof is a further
dimension for imposing the restrictions upon the power of second
appeal before the High Court. It is seldom found that in concurrent
finding, there is substantial injustice suffered by the litigant. The
judgement is not vitiated on the legal issues but such issues are
dealt with contrary to the pleading on record. Thus when there is a
malafide intention of the subordinate court to dealt with the issue
involved in a civil case, it is very difficult to get the substantial
justice. It is said that fraud and justice do not dwell together as
fraud neither defend nor create any right. In such a situation, the
justice is far away from the approach of the poor litigant who has
come forward for the protection of his right before the court of law.
There are so many obstacle in the process wherein even if it is found
that there is the infraction of valuable rights conferred upon a
citizen but in absence of the remedy due to the rigmarole of
technicalities of limitation, an other procedural justice, he is
helpless to get the enforcement of such rights from the court of law.
There should be a system in which one may espouse his cause by laying
the security to certain extent for adjudication of his cause. The
maxim that if there is a right, there should be a remedy for the
enforcement of such right through the process of law may be made
applicable in such circumstances.
That a poor person is dying through starvation and also on account of
inadequate medical facility which are inherent rights conferred to a
citizen under Article 21 of the constitution of India by implication.
On the other hand, a criminal under preventive detention is provided
every sort of the luxury on the cost of the public while he is
confined in jail for violating the law. If the government is
incapable to provide the minimum guarantee of food and shelter and
also to the employment to a qualified citizen in service, there is no
justification, which may permit the State Government to invest
exorbitant expenditure for maintaining the criminal through such
protection. Thus an existing structure of the society is based on the
orientation of such policy which are artificial for demonstration but
such policy are not meant for the protection of the citizen.
The State Government is seldom found for promulgation of the ordinance
to defeat the right of the public protected through the verdict of the
court of law. There are the instances of accumulation of the
disproportionate assets with the officer empowered to issue the
permit, licenses and quota while having the distribution of the
restricted/ essential commodity. The moment, the citizen is not
amenable to grease the palm by illegal gratification to the officers
assigned with the responsibility of distributing the permit/ licenses
and
And thereafter if per chance, verdict of the court is delivered in his
favour then the ordinance is issued by the respective secretary in the
state government just to defeat a crystal clear right in the favour of
the innocent citizen. There is nexus between the politician and
bureaucrats for the distribution of the disproportionate assets
amongst themselves without having any proper vigilance over
such pathetic situation prevalent in the country after the
independence.
The public good is above the consideration of the individual rights.
There is a delicate balance between the rights and duties and the
fundamental right are only enforceable to the extent that they may not
effect the society leading to public inconvenience . In the recent
case the dimension of administrative or quasi-judicial functions were
transcribed in respect of the dimension given to Article 14 and 19(2)
to 19(6) of the constitution of India. (Consumer Action Group v State
of Tamil Nadu 2000 S.C.C (7) 425.) There is also are gradual
relaxation of the rigour of the rule of natural justice in Aligarh
Muslim University v Mansoor Ali Khan 2000 S.C.C (7) 529.
That the Hon’ble Supreme Court has provided a dimension to the
different articles in order to provide a guidelines for effective
administration of justice. It has been held that no religion
prescribes that the prayer are required to be perform through voice
amplifier or beating of the drum and use of microphone for the
purposes of attending the religious ceremonies has been prohibited in
Church of God (Full Gospel) in India v K.K.R Majestic 2000 S.C.C (7)
282. Thus despite the mandate by issuing the writ of mandamus by the
Hon’ble Supreme Court to the administration at large in the public
interest litigation’s through judicial activism, nothing has been
taken as granted to the public even after declaring the same as the
law of the nation. Thus the judicial procedure, which is based on a
tedious process is required to be provided by fool prove system for
the benefit of the public. The comedy of error does not lie in our
celebrated principles but since there is a complete erosion of the
fear from the mind of the citizen indulge in violating the law and
there is no machinery to make a control upon the simple invasion of
such right, the public is bound to adhere what is given to it by the
grace of the public servant.
The other aspect of the picture is that the officers in the public
administrations have become so privilege oriented that they have
forgotten that they are the servant of the public. They are the
incidents which were highlighted during the reign of British Empire
when the Indians were treated as the slaves but still there was the
respect to the right of the Indians in respect of enforcement of their
privilege conferred in accordance with law. There was I.C.S officer
namely Lobho Prabhu posted as D.M., who was assigned with the
responsibility to get the recruitment over the land of the farmer
betaken away from the clutches of Jamidaar in the area. The D.M. used
to visit on the site of the encroachment and it was only there after
that the actual verdict is pronounced in presence of the affected
parties in presence of public at large and nobody was supposed to
carry on an illegal occupation. The grounds of appeal were limited
only to extent of malafide intention of the judicial officer in
carrying on his duties and as such there was an allegation labeled
against such I.C.S officer to the extent that since he has accepted
the feast given in the honour of the officer by the poor farmer by
offering the Rohu fishes and as such the verdict given In the case in
vitiated. The defense taken at privi council of England that since
the public is the subject of the crown and the I.C.S officer is the
servant of the crown and as such it was not within the power of
servant even to provide sentimental breakdown to the public. The mere
allegation of accepting the post decisional bribe in the form of the
feast was nothing else then to protect the sentiment of a poor
litigant who was given substantive justice after a prolonged
litigation against the Zamindar. Thus there is the definition of the
judicial functioning of the British period which is completely changed
in the present atmosphere after the independence of our country.
The people are scared to make a contact with a police officer as there
is a fear in the mind of the public that in case if they proceed to
approach a police officer, this may ultimately by resultant in
implication of the false case of criminal nature and there after an
association with the harden criminals if they are send to the jail.
This phenomenon is sufficient to drag an individual in the esteem of
crime once the hesitation in particular from remaining aloof from the
realm of criminal activities is taken away from the psychology of an
individual.
The system of criminal trial based participation of the witness is
also full of contradiction to provide substantive justice to an
innocent person from the court of law. It is totally dependent upon
the dimension of the evidence adduce before a court of law that the
punishment is awarded to a citizen sometime even on the sole
testimony of a witness. Can we trust a system where the crime is
committed in the complete animosity at the dead of night when no one
has actually seen the commission of the crime. The police on the
basis of mere suspicion and sometime on the basis of the information
received from the public/ informer may get an innocent person dragged
in the crime. There is no other criteria left open for the police
when the entire burden is casted upon the prosecution to prove a crime
and onus is seldom shifted upon the accused person to prove his
innocence. Can the police administration assigned with the
responsibility may discharge such duties without having a fool proof
machinery to dealt with the criminal. In absence of having a drastic
measurement for adopting the deterrent theory of punishment, there
will be no fear in the mind of the criminal and the crime will
continue uninterruptedly without any check by the present
administration of justice. The system of punitive theory of
punishment with the better responsibility of the citizen indulged in
the crime is required to be administered in the society.
Thus the eradication of the prevailing melody is not dependent upon
any set principle of law, nor the same could be given effect by the
enactment of further stringent provisions of law but the same is
required to be implemented by a major overhauling of the system. Till
a determination of the iron will of the society and the administrator
is not sound enough to override the personal benefit sacrificed for
the benefit of the society, there can not be any change by the mere
enforcement of the provision of the
“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.”
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