Plight of living Ghosts in India

[yogesh saxena]

Plight of living Ghosts in India
(One Lal Bihari who was declared deceased in 1976 has tried his best
by agitating his grievance before the revenue authority of District
Azamgarh saying that I am here , I am alive but the reply came that
according to land registry office you are dead by unruffled
officials .Lal Bihari sought his arrest , tried to run for
parliament , kidnapped the child and stolen the property , threaten
murder , insulted judges through leaflets listing his complaints at
legislatures of U.P State assembly and demanded widow's pension for
his wife . Each time he was beaten up by police or rebuked for wasting
officials time . Unable to make headway , Lal Bihari , the dead ,
sought the company of other ghost in Uttar Pradesh a dozen of these
ghost demonstrated outside the U.P assembly to publicise their fate
but nothing in last 18 years to get his life . Ultimately sue motto
notice was taken by the High Court Allahabad which was highlighted in
Times magazines and finally the matter has been refereed to National
Human rights Commission by Allahabad High Court by its judgement dated
7.1.2000 in writ petition no 29806 of 1999 which is reported in
Selected Allahabad Cases to which I am an Editor of the aforesaid
journal .)
The Times Magazine , Asia Edition July 19th ,1999 published an article
that "Bribe an official in eastern fringes of India's state of Uttar
Pradesh and declare the owner of the Land dead and transfer his land
to your name . Our constitution which is considered with its gospel to
achieve and resolve through its processor of therapeutic justice to
escalating Psychosomatic melodies and explosive rights without
enforceable duties to its citizen is generating spiralling
delinquencies as envisaged in an Article " Constitutional
resurrections " published in view point of a newspaper on 3rd May 1998
by Yogesh Kumar Saxena practising at Allahabad High Court has
something to express on this aspect as to why the quest of mankind is
to grasp the fundamental truth , the tenacity without even the least
touch of faith in reality which has diminished the entire surroundings
and undergone a radical transformation to the point of extinction
under our constitution . For further details, you may see the extract
of the interview taken with Yogesh Kumar Saxena ,a constitutional
Lawyer by Manisha Parikh for India World .co. in in Samchar .com with
reference to a judgement in reference to Writ petition no 29806 of
1999 Association of Dead People and another Vs State of U.P decided on
7.1.2000 and published in (2000) 1 selected Allahabad Cases page 374
to which Mr. Saxena is an Editor .
Question: What do you think about the aforesaid verdict in which a
living farmer who have been declared as deceased by unscrupulous
people and he ( Shri Lal Bihari ) and he contested his case from 1976
to seek a declaration as to be still alive and 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 propogate 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 co-related and co-existent.
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 do-er 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 mis utilisation 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 mis use 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.