Saturday, November 3, 2012
The Electronic Book Company: Free ebooks
The Electronic Book Company: Free ebooks: Great Reads - Free Reads Welcome! You are only a few clicks away from the prospect of some high-quality and entertaining reading. And...
Thursday, November 1, 2012
SAVE INDIANS FROM CONGRESS ATTROCITIES : THE CONTROVERSY OF RAJIV GANDHI MURDER , NO OTHER ...
SAVE INDIANS FROM CONGRESS ATTROCITIES : THE CONTROVERSY OF RAJIV GANDHI MURDER , NO OTHER ...: THE CONTROVERSY OF RAJIV GANDHI MURDER, NO OTHER THAN Smt. SONIA GANDHI Ms.Sonia Gandhi has also fully utilized the martyrdom of her h...
Sunday, June 10, 2012
Bharatkalyan97: Beauty of the confluences of rivers
Bharatkalyan97: Beauty of the confluences of rivers: 1. Confluence of the Rhone and Arve Rivers in Geneva, Switzerland 2. Confluence of the Ilz, Danube, and Inn Rivers in Passau, Germany ...
Tuesday, May 29, 2012
The Betrayal from the Members of MANIO - STEFENO FAIMLY membership nexus is without default is punishable to death Penality. Why Afzal And Kasab are Safe in India?
This Is an Article Circulated To Me by one of the Most
prominent Personality During the Period when I was passing through Corridor of
High Court Bar association and some individual of Top Intelligent Security has
handed it over for My Protection. I circulate it as I know that every word
written in this article has the glimpses of Truth About Indians Political
situtation. No evidences are left in all such political murders, starting from
the murder of Lal Raj Pat Rao from Lathi Blow upon his Head , Swami Sardhya
Nand Swami by Rasheed, Murder planted By Jawahar Lal Nehru of Chandra Shekhar
Azad in Alfred Garden for giving Information of His where About by Nehru, when
he Came to Meet Gandhi in TSHRAT VILLAH of MUBARAK Ali BARRISTER KNOWN AS ANAND
BHAWAN, Political Murder of Firoj Jahangir Khan Gandhi S/O Nawab Khan of
Junagarh , the grooser in Ishrat Villah The HANGING of Bhagat Singh Azad Raj
Guru on the Well acquittance of Gandhi, The Bisexual agent Of Britishers, The
Killing of defence less Citizens in Jalian wala Bagh, The calculated Mass
genocides of Hindus in Partitions, The Killing of Our Soldiers in Kashmir,
Hyderabad and in Himalaya, The Kargil War Martyrs Or it may the Foist Attack on
Predominant like Sardar Ballabh bhai Patel bomb threat Planted by Gandhi-
nehru close affinities nexus, what the people ,now suspects for panned attempt
murder threat given to him or it may be murder of Sri Shyama Prasad Mukharjee
after his arrest in Kasmir by Sheikh Abdullah, the cousin of Maulana Nehru
false identity having suppresion of the name of Great Grand Father of Jawahar
Lal Nehru namely Mr. Gyassuddin Gazi having threat to his life from the
supporters of Emperor of Dehli namely Bahadur Shah Jafar , to whom gyassuddin
gazi had dragged him being the KOTWAL of BRITISHERs , be it Air Marshall
Mukerjee in Japan or Lal Bahadur Shastri in Tashkent or Nagarwalla of SBI in
Delhi, Deen Dayal Upadhya By Indira Gandhi, to whom Atal Bijari Bajpai proded
the cover of Hiding from the citizens following the Ideals of sri Viveka Nand
Ji Swarswati, Daya Nand Swarswti , Neta Ji Subhash Chandra Bose, Nana Bhai
Dashmukh Veer Savarkar and Syama Prasad Mukharjee. The Lists of Such
Assisnations directly convey the hands of Foreign Countr Intelligent Secret
Agency, It Maw be KGB, MOSAD, CIA, ISI Governing our Nation through Super
imposed identity, be it be identit of Gandhi, Nehru , ZAKIR HUSSAIN his Son
involved in hijaking the Air Force plane, in Which Air Marshal Sri Arjun Singh
was traveling, FARRUKHDEEN ALI AHAMAD, Having kingpin in Bangla desi Muslims
Migrations, this country is subjected to subjugation in the larger Conspiracy.
Brewt Yes, belonging to top Secret Agency is the Son In Law of Mr. Man Mohan
Singh and Now Our President has become Decorated Dummy Placed at the Highest Place
in Our Country By No Other by Eu Pair Lady, entertaining her Customers in the
Bar of England, from where she was Planted By palio Mani o- Stefano Nexus to
Control Our Great Nation and Pt it to the naught of Abrogations and
Subjugation, Be it Fair or the Haul infringement. The Series of political murder Committed
one by one from the murder of San jay Gandhi in plane Crash, where in the Key
to operate Swiss Bank Accounts were ultimately gone in the Hand of Indira
Gandhi, resulting in her elimination by no other , but Sonia Gandhi by keeping
Prime minister Body in the Ambesdor Car having no equipment of Medical
Emergency in connivance with close nexus of Mr. R.k.Dhavan have been lying
under the dark clouds about the integrity of this lady, planted by the KGB
first by Russian Intelligent First and now by the CIA of Americans
Intelligence, ith whon our Intelligent service namely the RAW has been Merged
Completely. The Murder of Rajiv Gandhi By Lite Prabhakaran , In whose
Connivance of 34 Antiques were stolen from our Nation by No other , but his Own
wife Smt Sonia Gandhi Has well being established by the Close Affinities of Smt
Bentica Roborto with the Lady Used for Assissnation of Mr. Rajiv Gandhi. The
Political Murder of Rajesh piolet, Madho Raj Sindhiya In suspicious
Circumstances has came to the light and the finger of Suspicions point out the
Culprit as no other than Smt Sonia Gandhi. the Murder has got the Back ground
in case of Madho Rao Sindhiya was illicit relationship of this Lady, which Came
to Notice Of Mr. Rajiv Gandhi, when in 1980 at about 1.30 A.M. , Madho Rao
Sindhya was Fully intoxicant was colluded inside the Car got the head injury
lady associated in sex Namely Sanio Manio of Turin escaped, but the Student of
IIT Delhi rescued him and provided the Medical assistance in Deep crisis. this
Was the Same Madho Rao sindhiya , The successor of his Ans esters, who are
having the blood of Anti Nationalist sPrit and Taking Advantage of their
Terrorist activities in denying the hide in Rani Laxmi Bai in Gwalier, Indira
Gandhi Got the Entire Jewelery being Stollen under the HIDES of INCOME TAX
Department. Enforcement Wing. The list is quit eloberate and YSR Murder is also
one emerged inside there. The Principle is that if you are Dishonest person, we
can wipe out your Existence For Ever as the Principles of Islam and Christianity
applied for their use UPON HINDUS, that once you are inside the inner circle of
nexus of BRIBE, DECEIVE, DECEPTIVENESS in their identity for Sake of Money, The
Betrayal from the Members of MANIO - STEFENO FAIMLY membership nexus is without
default is punishable to death Penality. Why Afzal And Kasab are Safe in India?
the Reason Behind this May be that The Parliamentarian Attacks and Attacks In
Mumbai might have been planted By thois Faimly. Why the relatives of Roberts
Vadehra Family were Eliminated one After Another, the reason is pure and simple
that they refused to commit murder, robery and having deception with the Well
Being Of this Nation. I Have the evidences that who as the Lady actually
Planted the Murder of General Vaidhya?. The Creation of Bhiderwala and
elimination of Sikhs Community was the Planning by No Other but this Lady ? DO
YOU KNOW THAT THIS LADY IS SUFFERING FROM AIDS?. Who Will Be target
Next? General Sri V.k.Singh Or Baba Ram Dev, It may Be Subramanian Swami,
Yogesh Saxena General Secretary , Sandhya Jain, Ashok Himani Savarkar or it May
Be Acharya Aaya Naresh of Udbheet Sthali at Raj Garh Near Simla
Why The People Out Side INDIA IN EUROPE abd in America, China Australia and even in UK Call US HOOKOO MONKEY And the WHY Diplomat Of Singapore Called Us that INDIANS? INDIANS ARE IDIOTS, HALF HIDDEN AND HALF PROJECTED. We and SOMALIA, TANZANIA, NIGERIA, PERU, BRAZIL are Having the similar Genetic Background of Our Ancesters and THUS INDIANS ARE NO OTHER BUT PURCHASABLE COMMUNITY.
Why The People Out Side INDIA IN EUROPE abd in America, China Australia and even in UK Call US HOOKOO MONKEY And the WHY Diplomat Of Singapore Called Us that INDIANS? INDIANS ARE IDIOTS, HALF HIDDEN AND HALF PROJECTED. We and SOMALIA, TANZANIA, NIGERIA, PERU, BRAZIL are Having the similar Genetic Background of Our Ancesters and THUS INDIANS ARE NO OTHER BUT PURCHASABLE COMMUNITY.
Friday, May 25, 2012
Ambit and scope of article 21 couched in negative language
Ambit and scope of article 21 couched in negative language
Hon’ble Supreme court has taken
into account two spheres of dimensions to the right of personal liberty against
the sovereign power exercising its functioning with the police power and
restrictions imposing procedural safeguard in order to provide the public
safety having invasion of individual privacy as susceptible to abuse. The
custodian violence and torture by the police adopting third degree of
interrogation and other agencies have been deemed to be violative of article 21
and article 22 of the constitution of India. It has been held that the
importance of affirmed rights to deter breaches by the violence, torture and
even death in police lock up strikes a blow of rule of law. The police who is supposed
to provide the protection of citizens is committing such crime under the shield
of uniform and authority in the four walls of a police station of lock ups in
which victim is being totally helpless. Torture of human being by another human
beings is essentially an instrument to impose the will of the "strong over
the weak" by sufferings. These are a calculated assault on human dignity
and whenever human dignity is wounded, civilisation takes a step backward.
Universal declaration of human rights in 1948 in reference to article 5
stipulates "no one shall be subjected to be tortured or to be cruel
inhuman or degrading treatment or punishment". The constitutional
guarantee provided in article 20 (3) provides that of a person excused of an
offence cannot be compelled to be a witness against himself. Article 22 (2)
provides that the person arrested or detained in the custody shall be produced
before the nearest magistrate within a period of 24-hour of such arrest
excluding the time necessary for journey. The accused shall be informed of the
ground of such arrest and shall not been denied that right to concern and
defend himself by legal practitioner of his choice. The personal liberties is
protected under article 21 except according to the procedure established by
law. Thus personal liberty is a sacred and cherished right under the
constitution (UBI JUS IBI REMIDIUM).
The Hon’ble supreme court has
held in respect of the guarantees of the fundamental rights to education to its
citizen in Miss Mohini Jain Vs state of Karnataka 1992 (3). S.C.C. Page 666,
while dealing with this aspect of constitutional bench in Unikrishanan J.P and
others Vs state of Andhra Pradesh (A.I.R 1993 S. C. Page 2178) has observed
"Learning is excellence of wealth that none can destroy, to man nought
,else affords reality of joy". Quoting an old Sanskrit adage.
"Liberation from ignorance
which shrouds the mind, the liberation from the superstition which paralysis
efforts, liberation from prejudices which blind the vision of the truth.
"victories are gained, peace is preserved , progress is achieved,
civilisation is build-up and history is made, not on the battlefield where
ghastly murders are committed in the name of patriotic , not in the council
chambers were insipid speeches are spun out in the name of debate, not even in
factories were are manufactured novel, institutions which are the seat-beds of
culture, where children in whose hands quiver the destinies of the future, are
trained. From their ranks will come out when they grow up, statesman and
soldiers, patriot and philosopher who will determine the progress of the land.
In Keshavanand Bharti Vs state of Kerala A.I.R 1973 S. C. Page 1431 Justice
Matthew held "The fundamental rights have no fixed content, most of them
are empty vessels into which each generation must pour its content in the light
of its experience. It is relevant in this context to remember that in building
of just social order, it is sometimes imperative that the fundamental rights
should be somewhat related to directive principles. The following rights are
held to be covered world under article 21.
1.
Right to go abroad ( A.I.R 1967 S. C. 1836)
2.
Right to privacy (A.I.R 1975 S.C.1378)
3.
The right against solitary confinement. (A.I.R 1978 S.C
1675)
4.
Right against bar fetters (A.I.R 1978 S.C 1514)
5.
The right to legal aid (A.I.,R 1978 S.C. 1548)
6.
The rights to speedy trial (A.I.R 1979 S.C 1360)
7.
The right against hand cuffing (A.I.R 1980 S. C. 1535)
8.
The right against delayed execution (A.I.R 1983 S. C.
361)
9.
The right against custodian violence (A.I.R 1983 S C.
378)
10.
The right against public hanging (A.I.R 1986 s c. 467)
11.
Doctors assistance (A.I.R 1989 S. C 2039)
12.
Right to shelter (A.I.R 1990 S. C 630)
13.
the right to live with human dignity free from
exploitation (A.I.R 1980 S. C 849) and
14.
The right of livelihood (A.I.R 1986 S. C. 180)
respectively were also considered to be within ambit of article 21. Every
endeavour has been provided till now to make this article reverberate with life
and articulate with meaning. It has been held that authority not performing
their statutory duties to enforce laws for the protection of environment inre-
J.T 1996 (2) S. C 196 and J.T 1996 (7) S. C. 775 are jeopardising the right of
life of the citizen. However the authorities have still to provide protection
by providing a fool proof. Safety to the passengers travelling inside the fast
moving train to avoid disastrous accident endangering a cynical disrespect
towards the glorious contents of life in positive language and the honourable
court may interpret life of law to serve the social purpose and felt necessity
as sentinels on quinine as guardian of human rights to the victim of fatal
accidents, socio-economic crisis and criminal actions to their dependants which
is in the prevailing situation installing a sense of fear at least by providing
minimum of financial security.
Transparency of
action and accountability are perhaps two possible safeguards which the court
enforcing the protection of fundamental rights must insist upon. Thus police in
India requiring to perform a difficult and delegate task in view of the
deteriorating law and order situation, communal riots, politics turns to
student unrest, terrorist activities, dealing with hard core criminals, drug
peddlers, smugglers having strong root in society, will feel difficulties in
the detection of the crime committed by the hardened criminals. Thus a balanced
justice approach is needed to meet the ends of justice. The cure cannot
however, be worst them the diseased itself.
The state must
therefore ensured that the various agencies deployed by it of highly
sophisticated technology is increasingly susceptible to abuse. The existence of
public emergency are in the interest of public safety relating to sovereignty,
security, public order and integrity of India and also for preventing
incitement to the commission of an offence may justify the right to hold a
telephonic conversation and thus telephone tapping would tantamount to
interference and certainly be claimed against the right to privacy unless it is
permitted under the procedure established by law.
Right to
freedom of speech and expression includes a right to express one’s convictions
and opinions freely by words of mouth, writing, printing, picture or in any
manner under article 19 (1) (a) of the constitution dealing with the provisions
of section 5 (2) of the telegraph act. Unless public emergency has occurred are
the interest of public safety demands, the authority have no jurisdiction to
exercise the power under the said section. The power vested under section 5 (2)
shall not be issued except by home secretary’s and there shall be a review
committee consisting of cabinet secretary, law secretary and secretary
telecommunications appointed by the governor. It is not disputed that no rules
have been framed for the conduct of telegraph is under sections 7 (2) be of the
act for providing precaution and preventing the improper interception or
disclosure of messages for combating terrorism act within the bounds of the law
and not to become the law themselves. In order to bring transparency and
accountability, it is desirable that the officer arresting a person should
prepare a memo of his arrest at the time of arrest in the presence of at least
one witness may be the member of the family or the respectable person of the
locality. The date and time of the arrest shall be recorded in the memo which
must also be counter signed by the arrested person.
The claim in
public law for compensation is based on strict liabilities but for the
established infringement of the indefeasible rights guaranteed under article
21, the grant of compensation is an exercise of the courts under the public law
jurisdiction. The quantum of compensation will of course depend upon the
peculiar facts of each case and no straight jacket formulae can be evolved in
that behalf. ( D.K. Basu Vs state of West Bengal, J. T. 1997 (1) S. C Page 1) (
Joginder Kumar Vs state of U. P. 1994 (4) S. C. C. 260), (state of M.P Vs Shyam
Sunder Trivedi J. T. 1965 (4) S. C Page . 445, (Neelabati Bahora Vs state of
Orissa J. T. 1993 (2) S. C Page 503, ( Bhim Singh Vs state of .J. K. 1985 (4)
S.C.C page 677, ( Rudul Shah versus state of Bihar 1983 (4) S.C.C page 141)
have been referred by the apex court.
The Hon’ble
supreme court in the public interest litigation filed by people’s union for
civil liberties versus union of India J.T 1997 (1) S. C page 288 has laid down
that the telephone tapping is a serious invasion of an individual’s privacy
which with the growth. Thus as interrupted by all learned seven judges in
Khadag Singh case 1964 (1) S. C. 332 that the expression life couch in article
21 included that "right to privacy and covered under protection of life
and personal liberty which is insured against the arbitrary intrusion by the
police. It is a right to be lit to a citizen to safeguard the privacy of his
family, marriage , procreation, motherhood, child bearing and educational among
other matters dealing with Article 17 of international convenient on civil and
political rights 1966.
1.
No ones shall be subjected to arbitrary or unlawful
interference with privacy, family woman and correspondence not to the lawful
attacks on his honour and reputation and
Everyone has a
protection against such interference or attack ... Article 12 of the universal
declaration of human rights 1948 is almost in the similar terms. Thus it has
been ordered that matters to be taken into account in relation to the
interception required under section 5 (2) of the telegraph act, unless renewed
cease to have effect at the end of the period of two months from the date of
issue. The record shall be maintained in case it remained in an operation to
the maximum limit of not exceeding six months regarding the intercepted
communication, the extent to which the material is disclosed the number of
person and their identity any of the material disclosed, and the extent of
copies may made regarding material by authority issuing the order. The
committee at state-level and central government shall also maintained that
whether there has been any contravention of any of the provisions of section 5
(2) of the Act the procedures which deals with modalities of regulating,
restricting on even rejecting a fundamental right felting with article 21 has
to be fair, not foolish, carefully designed to effect , not to be subvert the
substantive right itself which can be canalised only by civilised processes (
Maneka Gandhi Vs Union of India 1978 (2) S. C. R. Page . 621).
Wednesday, May 23, 2012
unbridle powers to the ministers and thereby overthrowing the constitutional mandate securing the safeguard over the whimsical expenditure.parliamentarian democracy, providing the fraternity to an individual in preamble of the constitution, was an attack on its basic structure
constitutional scheme, was directly resulting into the notion of
conferring the absolute power to the respective ministry
The
constitution of India provides that the Comptroller and Auditor General of
India shall be appointed by the
President by warrant under his hand and seal who shall not
be removed from Office, except in the like manner and on the like
grounds as a Judge of Supreme Court. The term of appointment shall be for a
period of 5 years and the condition of service and salary of the Comptroller
and Auditor General of India shall be such as may be determined by Parliament
by Law and until they are so determined, shall be as specified in the second
schedule of the constitution. The
Comptroller and Auditor General shall perform such duties and exercise such
powers in relation to the accounts of the union and of the states and of any
other authority or body as may be prescribed or under any law made by
Parliament. The report of the Comptroller and Auditor General relating to the
accounts so maintained of the union
shall be submitted to the President who shall cause them to be laid
before each house of Parliament . The report relating to the accounts of the
states shall be submitted to the Governor who shall cause them to be laid
before the legislature of the states.
That the
present accounting system applicable to most Ministries and departments in
essentially external to Financial management function in that the payment made
by the treasuries and accounts are compiled by audit and accounts offices under
the control of the Comptroller and Auditor General on the basis of initial and
subsidiary accounts received by them from the treasuries. This system worked
fairly well when Governmental business was limited. With the increase ion the
volume and variety of Governmental business
and the continual set-up of developmental outlays, this system has
proved inadequate to the administration task.
The scheme of
separation of accounts from audit was to be implemented in selective ministries
e.g communication, civil aviation, tourism, industries and civil supplies w.e.f
April 1976, where the expansion regarding the
expenditures and its audit was felt to be providing certain constraint
and thereby resulting into the delay in implementation of the schemes at the
relevant time. However by the gradual
increase of the power with these ministries, the similar laxity in relation to
the procedural safeguard was further provided
the other ministries resulting into the defeat of the very purposes for
which the office of the Comptroller and Auditor General was given the power
through checks and balances. The effect of the aforesaid process has resulted in the departmentalisation of union
accounts enacted in 1976 and the transfer of personnel was given effect by the
enforcement of the Act no 59 of 1976 from Indian Audit and Accounts departments
which was earlier under the control of
C.& AG to the newly formed department of Civil Accounts under the Controller General of Accounts under
department of Expenditure ministry of Finance. In this manner the office of
C& AG which was constituted under the
scheme of the constitution of
India to provide the restraint to the expenditure disproportionate from its own
discretion by the relevant ministries was brought under the ministry of Finance
and thereby giving the unbridle powers to the ministers and thereby
overthrowing the constitutional mandate securing the safeguard over the
whimsical expenditure. According to the legal opinion of the constitutional experts, the
diversification of the financial powers
to be utilised by the sole discretion of the bureaucrats without taking into
consideration the Audit objections, which could have been made under the
original constitutional scheme, was directly resulting into the notion of
conferring the absolute power to the respective ministry. This was against the
democratic, federal and republic set-up
of our Constitution. The aforesaid
concept of the parliamentarian democracy, providing the fraternity to an
individual in preamble of the constitution,
was an attack on its basic structure. This has led to an inadequate
financial control which would have been benefited to the nation if such power
were remained with C&AG in India.
That it would
be relevant to point out that the office of the Auditor General of India was
created under the Government Of India Act 1935 for exercising the control over
expenditure incurred by Central And
State Governments and for proper accounting thereof in such forms and in such
manner as may be prescribed by him and he was also responsible for rendering a
complied account of receipt and expenditure to the Centre and State Governments
and he was also required to submit report on the result of Audit in his Audit
report to the Governor- General and
the Governor of the States for laying it before respective legislatures
. That after coming over the constitution of India the Auditor General was designated as Comptroller Audit General
of India under chapter V of the constitution. The state Govt. which lavishly
spends crores on the refreshment
allowances of its ministers, now is facing a crisis that it does not have
enough money in its coffers to deposit the premium of insurance cover for 1
lakh employees of local bodies due for
their group insurance scheme. As a result of this misutilisation of the public
money the insurance scheme of these employees has lapsed and the life insurance
corporation has expressed its inability to consider any future claim as part of
the scheme in case of the death of a employee. The LIC missive state that the
group insurance scheme of some 94.165 local bodies employees stands forfeited due to non deposit of approximately
the premium of Rs 1.83 crores due on it from the last seven months. The LIC
informed that the interest at the rate of 12% would also levied on the amount
due to delay in payment of the premium. It is based on the idea for having LIC’s
Master policy 4912 under its group insurance scheme which was mooted in 1977 by
the state Govt. The Directorate of the local bodies makes a monthly payment of
Rs 21.63 per member to the LIC while a employee make a payment of Rs 20 from
his salary while Rs 1.63 is contributed by the state Govt. each months towards
the policy, for which the LIC shrugs off future claims in case of the policy
holders death where his next kin get Rs 25,000 under the scheme beside the
premium deducted from his salary is also refunded with a 10% interest on the
amount. Similarly an employee on its retirement get a premium deposited by him
back with a 10% interest on the amount from the insurance firm. This is due to
extravagance of public finance and curbing the powers and duties of Comptroller
and Auditor General with effect from the time of enforcement of the Act no 59
of 1976 putting the earlier control of
the C&AG under the Department of Expenditure Ministry of Finance in State
of U.P.
Question& Answer
Question: What do you think 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 propagate 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 correlated and coexistent. 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 doer 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 misutilisation 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 misuse 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.
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