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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