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Friday, 6 January 2012

LAW,JUSTICE, FUNDAMENTAL RIGHT AND DUTY IN OUR CONSTITUTION AND ANGLO-SAXON JURISPRUDENCE IN PRESENT PARLIAMENTARIAN

LAW,JUSTICE, FUNDAMENTAL RIGHT AND DUTY IN OUR CONSTITUTION AND ANGLO-SAXON JURISPRUDENCE IN PRESENT PARLIAMENTARIAN

by Yogesh Saxena on Friday, December 16, 2011 at 1:12pm
The greatest virtue of Law 
 
 
 
The greatest virtue of Law is in its adaptability and flexibility.  Law made for the society and there fore it has to be applied , depending upon is situation , for the benefit of society (Balbir Kaur vs . steel authority  of India ) ,(2000)6 SCC 493.
“Law is a social engineering to remove the existing imbalance and to further the progress , serving the needs of the Socialist Democratic Bharat under the rule of law.  The prevailing social conditions and actualities of life are to be taken into account in adjudging whether or not the impugned legislation would subserve the purpose of the society. ( Ashok Kumar Gupta  vs State of U.P., (1997)5 SCC (L&S)1299:.
“Law is a means to an end and justice is that end.  But in actuality, law and justice are distant neighbours; sometimes even strangely hostile.  If law shoots down paralyses development, disrupts order and lawlwssness paralyses development, disrpts order and retards progress.  High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil,(1997)6SCC339: 1997 SCC (L&S)1486: AIR 1997 SC 2631: (1997) 4 SLR 321: (1997) 2 LLN 470:
“Law has been variously defined by various individuals from different points of view and no wonder there is no unanimity of  opinion regarding the real nature of law, by various writers.”
‘’A law is a rule of conduct, administered by those organs of a political society which it has ordained for that purpose and imposed in the first instance at the will of the dominating political authority in that society in pursuance of the conception of justice which is held by that dominating political authority or by those whom It has committed the task of making such rules’.  (Keeton)
“A set of rules imposed and enforced by a society with regard to the distribution and exercise of power over persons and things”.  (Vinogradoff)
“Law is the command of sovereign, containing a common rule of life for its subjects and obliging them to obedience”.  (Erskine)
“Law is the body of principles recognized or enforced by public and regular tribunals in the administration of justice.”  (Pound)
“The law of the state or of any organized body of men is composed of the rules which the courts-that is, the judicial organs of that body- lay down for the determination of legal rights and duties”.  (Gray)
“Law is that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of Government”.  (Wilson)
“Law is the system of rights and obligations which the State enforces”.  (Green)
According to Salmond,” Law may be defined as the bdy of principles recognised and applied by the State in the administration of justice”.  Courts may misconstrue a statute or reject a custom.  It is only the urling of the curt that has binking force as law.  The highest court of a State wilfully  misconstrues an Act of the Legislature, the interpretation put on the Act would be law as there is no higher  judicial tribunal with jurisdiction and authority to reverse it.  The result is that the true test of law is enforceability in a court of law”.
According to Justice Holmes,” The life of law has not been logic.  It has been experience.  The law will become consistent when it ceases to grow.  The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious; even the prejudices which judges share for their fellowmen have had a good deal more to do than the syllogism in determining the rules by which man should be governed.  The law embodies the story of a nation’s development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.  In order to know what it is, we must know what it has been and what and what it tends to become”.  Again, “Logic gives science of law resides in the elegantia-juries or logical cohesion of part with part.  The truth is that  the law is always approaching and never reaching consistency.  It is for ever adopting new principles from life at one end and it always retains old one from history at the other.  It will become entirely constant only when it ceases to grow”
The fast changing scenario of economic, social order with scientific development spawns innumerable situations which the legislature possibly could not foresee.The delegate is entrusted with power to meet such exigencies with in the in built check or guidance and in the present case to be with in the declared policy.  So the delegate has to exercise its powers with in this controlled path to sub serve the policy and to achieve the objectives of the Act .  A situations may arise, in some cases where strict adherence to any provision of the statute or rules may result in great hardship, in a given situation, where exercise of such power of exemption is to remove this hardship without materially affecting the policy of the Act, viz., development in the present case then such exercise of power would be covered under it.  All situations cannot be culled out, which have to be judiciously judged and exercised, to meet any such great hardship of any individual or institution or conversely  on the interest of the society at large.  Such power is meant rarely to be used.(Para 18).  Consumer Action Group v. State of T.N.,( 2000) 7 SCC 425.
“In the interpretation of the Constitution, words of width are both a framework of concepts and means to achieve the goals in the Preamble.  Concepts may keep changing to expand and delongate the rights.  Constututional issues are not solved by mere appeal to the meaning of the words without an acceptance of the line of their growth.  The Judges, therefore, should respond to the human situations to meet the felt necessities of the time and social needs; make meaningful the rights to life nad give effect to the Constitutions and the will of the legislature.  The Supreme Court as the vehicle of transforming the nations life should respond to the nation’s needs, interpret the law with pragmatism to further public welfare to make the constututional animations a reality and interpret the Constitution broadly and liberally enabling the citizens to enjoy the rights. (Ashok Kumar Gupta v. State of U.P., (1997)5 SCC (L&S)
The principle is that all  statutory definitions have to be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a some what different meaning in different sections of the Act depending upon the subject or context.  That is shy all definitions in statutes generally begin with the qualifying words similar to the words used in the present case, namely” unless there is anything repugnant in the Act where the meaning may have to be departed from on account of the subject or context”.  Thus there may be sections in the act where the meaning may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence  in the definition section, namely “unless there is anything repugnant in the subject or context”.  In view of this qualification, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words “under those circumstances”.  Whirlpool Corpn.v. Registar of Trade Marks,(1998) 8 SCC1.
“By interpretation or construction is meant”, says SALMOND,”By which the courts seek to ascertain the meaning of the Legislature through the medium of authoritative forms in which it is expressed”.
“Interpretation  differs from construction in that the former is the art of finding out the true sense of any  form of words; that is, the sense which their author intended to convey; and of enabling others to derive from them the same idea which the author intended to convey.  The drawing of conclusions, respecting subjects that lie beyond the direct expression of the text from elements known from and given in the text; conclusions which are in the spirit though not with in the letter of the law.” (AIR 1963 SC 1760,p. 1794)
“In common usage interpretation and construction are usually understood as having the same significance”.(211 US 370,p.386)
“The duty of judicature is to act upon the true intention of the Legislature-the men or sentential legis”.  (AIR 1966 SC 346 ,p.348)
“The function of the courts is only to expound and not to legislate.  The numerous rules of interpretation or construction formulated by courts are expressed differently by different judges and support may be found in these formulations for apparently contradictory propositions.”
“The Legislature can no doubt amend or repeal any previous statute or can declare its meaning but all this can be done only by a fresh statute after going through the normal process of law making “.
“Surprise to find that an open platform having no all or roof is a building”.(AIR 1966 SC  991)
“ The building of High Court is a ‘structure’ may itself be debated.  Unsuccessfully argued in the House of Lords that a large substantial permanent two stereo building was not a structure.(AIR 1921 PC 240)
“The question is essentially one of degree and that it is impossible to fix any definite point at which ‘maintenance’ ends and ‘repair’ begins”.  There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.” With in or outside the purview of the relevant words of the statute, after laying down a working line or more appropriately some general working principles. (AIR 1960 SC 610)
Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. Information derived from past and present experience.  It may also be designed by use of general  words to cover similar problems arising future.
“If the word used n a fiscal statute is understood in common parlance or in the commercial world in a particular sense, it must be taken that the Excise Act has used that word in the commonly understood sense.  That sense cannot be taken away by attributing a technical meaning to the word.  But if the legislature itself has adopted a technical term, then that technical term has to be understood in the technical sense.  In other words, if in the fiscal statute, the article in question falls with in the ambit of a technical term used under particular entry, then that article cannot be taken away from that entry and placed under the residuary entry on the pretext that the article, even though it comes with in the ambit of the technical term used in a particular entry, has acquired some other meaning in market parlance.(AIR 1997 SC  3414)
“The judiciary can never regain its lost respect and esteem if faith in judiciary can never regain its lost respect and esteem if faith in judiciary is forfeited.  The conduct of every judicial officer should be above reproach.  He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.  If he tips the scales of justice, its rippling effect would be disastrous and deleterious.  High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil.(AIR 1997 SC 2631)
“The theory of Sovereign power which was propounded in Kasturi Lal’s case (AIR 1965 SC 1039) has yielded to new theories and is no longer available in a welfare State.  It may be pointed out that functions of the Govt. in a welfare State are manifold, all of  which cannot be said to be the activities relating to exercise of Sovereign powers.  The functions of the State not only relate to the defense of the country or the administration of justice, but they extend to many other spheres as, for example education, commercial, social, economic, political and even marital.  These activities can not be said to be related to Sovereign power.”  Smt. Hanuffa Khatoon, who was not the citizen of this country but came here as a citizen of Bangladesh was, nevertheless, entitled to all the constitutional rights available to a citizen so far as “Right to Life” was concerned.  She was entitled to be treated with dignity and was also entitled to the protection of her person as guaranteed under Art. 21 of the Constitution.  As a national of another country , she could bot be subjected to a treatment which was below dignity nor could she be subjected to physical violence at the hands of govt. employees who outraged her modesty.  The right available to her under art. 21 was thus violated.  Consequently, the State was under the constitutional liability to pay compensation to her.  The judgement passed by the Calcutta High Court, therefor, allowing compensation to her for having been gang raped, cannot be said to suffer from any infirmity.”
“Rape was committed on a woman by railway employees and a practicing advocate of a High Court filed a petition under Art. 226 which included not only the relief  for compensation but many other relief’s as, for example, relief for eradicating anti-social and criminal activities of various kinds at Howrah Railway Station and the true nature of the petition, therefore, was that of a petition filed in public interest, the writ petition was maintainable.  In such a case, it could not be said that she could not file that petition as there was nothing personal to her involved in that petition.”
It has been held in case of Chairman, Railway Board v. Chandrima Das (AIR 2000 SUPREME COURT 988)- “The employees of the Union of India who are deputed to run the Railways and to manage the establishment, including the Railway Stations and Yatri Biwas, are essential components of the Govt. machinery which carries on the commercial activity.  If any of such employees commits an act of tort, the Union Govt., of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees.  It was so when instant case was case under Public Law domain and not in a suit instituted under Private Law domain against persons who, utilizing their official position, got a room in the Yatri Niwas booked in their own name where the act complained of was committed.
However in case of Hussain v. State of Kerala, (2000) 8 SCC 139.The appellant is unlawfully deprived of his personal liberty for such a long period of 5 years on account of  inadequate legal representation andWrong conviction and thereby overlooking the aforesaid facts and the legal position.  We acquit the appellant and direct him to be set at liberty forthwith.  In this case, we are not considering the question of awarding compensation to the appellant but he is free to resort to his remedies under law for that purpose. Similarly in case of death by electrocution, the Maintainability of the writ petitions is denied on the ground of Disputed questions of fact involved in case reported in (2000) 4 SCC 543.
In the book written by our Uttaranchal Pradesh chief Justice Ashok A. Desai namely “ Justicing the people “- “Judiciary is independent.  It does not mean judges are equally independent.  They are bound by the limitations of law .  Common man may not be able to see it.  The judicial system has to maintain certainty and uniformity in the discharge.  If the judges are allowed to settle the extent of justice according to their notion, or concept, then the system cannot achieve either of them.  Intellectualism has more diversity. With the Judicial Activism, justice will vary according to the concept of individual Judge.  That will cause a severe damage, not only to the system, but also to very foundation of justice.  It will also create difficulty in guiding the Society.  Law is always notified for the guidance of public but notions of justice of a Judge are not visible.  This creates jeopardy.  It would lead to, not only the Government by judiciary but by the Judges.  The Democratic Society will never approve this.