Wednesday, May 23, 2012

A body of 292 people representing the different constituent in the representative capacity Now Required Review of Constitution


Review of Constitution
A body of 292 people representing the different constituent in the representative capacity can hardly believe that their voice was the voice of people .The ideals and aspirations which has given courage and inspiration for struggle during the British regime has  been resultant for the enforceability of fundamental rights without enforceable fundamental duty ,which remains absent upto 3.1.1977 till Article 51-A was inserted in our constitution .The sentinel and custodian of public interest have completely forbidden that our constitution has must correspond to definite social relations for development of the country. The Constitutional provisions should adhere to the changing norms and values of the society ,as such there was need for retrospection and renovation. The society is surging forward to fulfil those ideals on which the country may progress. Duty to uphold and protect unity and integrity of our nation and to render national service to promote harmony and to abjure violence to rise with higher level of endeavour and achievement should be the primary consideration to built up a nation. These duties include preventing exploitation and and the monarchy by the ruler. Each according to his ability must be rewarded and assigned with the responsibility of work Democracy is not a mere slogan. Democratic  values be confirm by the people. The concept of socialism is based on social justice where the “right to work” is an essential feature .Our constitution has become static achieve such changing norms.
The president should be assigned with arduous task of combining  the ceremonial office of the head of the state with political head of the executive as the legislature ought to be trusted not be make bad laws. Essence of common brotherhood amongst all Indian is the principle, which may give unity and solidarity to the social life. Slogan do not solve the problem .The segmentation on the basis of caste and religionist are anti national .Agreement on the essence of the principle had broken down on each ideological front in our country. The ideological may lead to dictatorship  form of government as the opportunist in the politics may preach well for popular sovereignty .The representative Govt. under the garb of conscious element imposes their vested political decision guided and emanated with the centralised   organisation to the party leadership .This ultimately result in a special kind of representative Govt. where the political forces dominate the state.
The social order is essentially a system of class relating . The equality of all citizens is now replaced by division into leaders. It deduces the idea of man’s dignity and freedom, the task of ensuring justice and existence of harmonious relation amongst the citizens.
Economic justice would mean the development of more productive economy which may lift the Indian people from extreme poverty to a level of living closer to the citizen of developed countries. Socialistic pattern of the society means that the extreme of the wealth would be reduced and the centres of the private power would be eliminated.
Justice Frank Rurter said “Every legal system for a living society even when embodied in a written constitution must itself be alive .It is not merely the imprisonment of the past ,it is also the  unfolding of the future .A federal is most complicated and sublet .It demands the most flexible and imaginative adjustment for harmonising national and local interest.
A dynamic process having its application to a function of statecraft. The Constitution cannot be applied in disregard of the external circumstances in which men live and move aimed have their being. Justice Homles said ‘the provisions of the constitution are not the mathematical formulas having their essence in their form ; they are organic living institution. The significance is vital, not formal ; it is to be gathered not simply by taking words from a dictionary , but by considering their origin and the line of their growth .Justice Cardozo said ‘A constitution is the principle for an expanding future’
The courts instead of ascertaining the intent which these men voice with respect to the meaning of a constitutional clause in their own way , attempt to determine the intent which these men would presumably have held ,had they foreseen what our present condition would be. The judicial approach should be dynamic rather than static , pragmatic and not pedantic and elastic rather than resist. It must  take into consideration the changing trends of economic thought the temper of time and the living aspirations and feeling of the people. The court while acting as sentinel on the qui-vive  to protect the fundamental rights must try to strike a just an balance between the fundamental rights and the larger and broader interests of the society , so that when such a right clashes with the larger interest of the country, It must heeled to the later. (Pathumand vs State of Kerala A.I.R 1978 S.C page 771). In India the majority is not a political majority . There is difference between communal majority and a political

majority . A political majority is not fixed , but it is the majority based on conscience while the communal majority a permanent majority fixed in the attitude .One can destroy it ,but he cannot transform it. The politicians have objections to the political majority in these words. “DAMN YOUR SAVE GUARDS , WE DO NOT WANT TO BE RULED BY YOU”
The immunity granted to the M.P’s under clause (2) of Article 105 and to the members of the legislative assembly under article 194 (2)of  the Constitution of India that they shall not be liable to any proceeding  in any court in respect of ‘ANYTHING SAID’ or ‘ANY VOTE GIVEN’ is providing protection for entering into conspiracy for bribery and to commit the offence of violence for which these representative claims to exercise the privilege for a charter for corruption. Since they are public servants and there is no authority to remove an M.P. from his office in absence of such authority competent to remove and to grant sanction under section 19(1) of prevention of corruption act , 1988. The prosecuting agency dealing with JMM bribery case in respect of the offences under section 7, 10,11, 13and 15 shall obtain permission of chairman of Rajya Sabha /speaker of Lok Sabha and if they are not found competent authority to remove them , the president of India under Article 103 is not competent to remove a M.P. from his office and thus in absence of requirement of initiating proceedings in the court  of the law , no prosecution under these provisions may  be taken against M.P under Prevention of Corruption Act. P.V. Narsimha Rao vs State (CBI/SPE)(1998)4 SCC page 626)Similarly the designated  court of Sri V.B Gupta Special Judge conducting the trial of politicians involved in Hawala scam has acquitted all the accused persons as the evidence Act does not recognise a document written in code words as  admissible in  evidence. This is pragmatic approach where the justice is dependent upon rigmarole of technicalities and our profest socialistic ,secularists ,democratic parliamentarian set-up of our country. Justice Y. Venkatachalam observed “If such acts and conducts on the part of Jaya Lalitha are allowed to continue , it will not only create indelible stigma on the system of flourishing democracy, but will also bombard the entire economic structure of our country” Erosion of credibility of judiciary in public  mind may be the greatest threat to the independence of the judiciary. Eternal vigilance by the judge to safe guard against any such latent internal danger is therefore necessary lest we may suffer from self inflicted mortal wounds. Authenticity of judicial process rest on public confidence and public confidence rest of legitimacy of judicial process. Sources  of the legitimacy is distinguished from subjective moods. Predilections emotions and prejudices. Ultimately the judges have to suffer the consequences ofd injustice . In Indramani and others vs Mitheshwari Prasad and others reported in J.T 1996 (9) S.C page 135. The Hon’ble Supreme Court after recording regrettable circumstances has deprecate certain behaviour undermining judicial  discipline of our Hon’ble court while in state of Rajasthan vs  Prakash Chandra (1998) 1 S.C.C Page1 , the Hon’ble Supreme court  has again depredated the lake of  judicial restraint and abuse of judicial authority by disparaging and derogatory remarks by insinuation through reckless and irresponsibly discipline against judicial flavour and judicious propriety of puisne Judge of Rajasthan High Court. Still the judicial  process cannot be abused to perpetuate such illegalities for which a totalitarian regime having dangerous consequences regarding rule of conduct has to be vanished. Mr. L.K. Advani said in the legal aid orientation ; Indian judiciary instead of being solution has become a problem itself , while Jethamalani in another context has observed that the judges at the highest level were involved in lesser pursuit of  propping unworthy appointment of bench while Mr. Mulayam Singh expressed that there should be adequate representation of judges on the caste basis. Whether this is pragmatic approach into the matter which is based on the great ideals to our super entrepreneurial spirit of cultural heritage and intellectual potential ? The virtue of humanity in the judges and a constraint awareness and investment of power in them  is meant for use in public interest and to uphold the majesty of rule of law , which would to large extent ensure self restraint in discharge of judicial and our constitution of India. Written By YOGESH SAXENA GENERAL SECRETARY ALL INDIA BAR ASSOCIATION

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