Religion and my Nation

RELIGION AND THE NATION

My nation is my religion. Salutation to the nation is meant for social co-ordination and solidarity amongst the citizens and therefore it is regarded the greatest service of humanity. The controversy triggered off over the telephonic recital going patriotic on independence the my reading the callers with “Vande Mataram” being objected with the title Masjid Mein Vande Mataram”, by Mr Idirisi has hurt the sentiment of Indians. Any negative feeling is the feeling against the nation . It will be called as the saddest day for our hard one freedom. Those hundreds of patriots who sacrificed their lives by daring to get themselves hanged by chanting the slogan “ Vande Mataram” is now triggered off controversy of fanatic psyche “Vande Mataram is not a communal song ,but is a salutation to the nation including to the sentiments of the great poet Iqbal, who wrote “SAARE JAHAN SE ACHHA HINDUSTAN HAMARA”

Conscience is the inmost thought consciousness moral sense scrupulousness ,conscientiousness It means the freedom to right or belief. To profess means to affirm one’s faith in religion or God . In Shirur Muth case (A.I.R 1954 S.C 282) the Hon’ble Supreme Court said Religion is certainly a matter of faith with the individual or communities and it is not necessarily theistic. The well-known religion in India like Buddhism and Jainism do not believe in God or in any in the religion or in any intelligent first course. A religion undoubtedly has its basis in a system of belief or doctrines, which are regarded by those who profess that religion as conducive the their spiritual well-being……….

In Bijoc Emmanuel vs state of Kerala (1986) 3 S.C.C p. 615 in which a state compulsion on an individual perform a secular activity was challenged to violate his religious conscience. The circular being contra sacramental by participation in singing national anthem before marching to the classes was under challenge. The Hon’ble Supreme Court held that the circular has no force of law and any compulsion to join in the singing despite genuine conscientious religion objection would clearly contravene the rights guaranteed by article 19 (1) (a) and article 25 (1) of the constitution of India. Can we survive without a nation? Whether the freedom of conscience is a perceptible aspect or abstract phenomenon. The conscientious objection may refuse to bear arms or an atheist may not be compelled to swell in the name of God. The national anthem and the national flag was dispensable in the face of religious objections. The Hon’ble Supreme Court while observing the need of enforceable fundamental duty under article 51 -- A (a) of the Constitution which provides for proper respect to our national anthem. It was observed that the mere executive or a departmental instruction cannot canton the dimension of free conscience clause of our Constitution and therefore the increased conscientiousness provides a constraint on the compulsory vaccinations and inoculation particularly during gigantic mass of congregation like Kumbha Mela and other religious fairs in our country.
The end of religion is beginning of spirituality; the end of spirituality is the beginning of reality and the end of reality is the real bliss. Instead of worshipping the great master, the omnipotent, ominous, omnipresent. We have started worshipping his servant and rather the place of worship is now regarded above to the religion. People are driven through such faulty guidance and having the darkness in the self realisation. The goal of life is to achieve the greatest possible efforts towards the serious consideration to the problem of life. If we have no essence of vary life how we can achieve the freedom from bondage which may provide salvation. Thus the religious sentiments are no where providing obstacles in the process of salutation to our nation. Rather the religion is based on the foundations of being a patriot first then to believe any dogma or rituals under the garb of the religion.

The state affairs in India without having the enforceable fundamental duties as we may resolved from a political situation having growing tendency towards moral, religious and social degradation, is rather deplorable. India does not hold any bright prospects with interruptions and spirituality compassionate to the animals and to protect the vegetation is the reciprocal obligation towards the God. Thus the respect contributed towards civilisation of providing solidarity and the integrity to the nation by salutation to our country is the fundamental principle of the religion. The consequences of the present drastic change in the mentality of the individual on the -- is alienating responsible for mobcracy which may lead to enormous blood shade all over the world as if the religion is not based on spiritualism which ultimately ruin our civilisation

This universe is a system of change and formation of energy for our living creative to an other. The energy which kinetic or magnetic or electrical is the basis of life. The vapours arising out of such energy is ultimately the source of our inspirations. The moments we kill our fallow inhabitants, the energy involved into the different formation, but it never extinguished, thus God is one and therefore the belief to adopt a particular religion should be founded on common foundation. God is perfect the universe is perfect but we're not perfect let our soul may appreciate it. The primary objective of the society is to do welfare of all human beings and when we inspite living inside the boundaries of our country may not provide salutation to that nation We have no right enjoy any right in such country.

HUMAN RIGHT JURISPRUDENCE & JUDICIAL ACTIVISM

The instrument of status quo upholding the traditions of ANGLO-SAXON JURISPRUDENCE and resisting radical innovations in the use of judicial power is no more in existence. Concepts such as “RULE OF LAW”,”SEPERATION OF POWER”,”INDEPENDENCE OF JUDICIARY”,”SUPERMACY OF FUNDAMENTAL RIGHTS OVER DIRECTIVE PRINCIPLE”, NON ENFORCEABLE” FUNDAMENTAL DUTIES”, were introduced by the passage of time. The “JUDICIAL RESTRAINS”, “JUDICIAL PRECEDENTS”& “CERTAINTY OF LAW” were used conveniently to avoid and dilute the effect whenever it was so required. Thus the resultant legal culture was the same as we have in pre-independent days.
The expansion of the Doctrine of LOCUS STANDI to the citizen and democratisation of remedies are not on speaking terms. Thus the role of Locus- Standi is required to be dealt with by Judicial activism by the courts dealing with the Constitutional rights. There are very less number of fundamental right & larger number of duties imposed in the chapter dealing with fundamental right in our constitution of India. Except the right conferred under Article 19, there is no individual fundamental right to the citizen . There are some collective right to the citizens . The rest of the Articles are the fundamental duties of the government towards its citizen .
The promised “ TRYST WITH DESTINY” to achieve the change were determined on the interpretation of the constitution. The judicial power are often not represented in judicial forums and appears to be at the receiving end of mal-administration and subjected to exploitation for the litigant. The greatest contribution of judicial activism is to ensure the feeling in the mind of common citizen that he may represent in judicial forum.


HUMAN RIGHT IN INDIAN DEMOCRATIC CONTEXT

The concept of Human rights relates in its immemorial antiquity from the time of inception of the Human being .Human rights advocacy is not an encroachment upon the national sovereignty , but is an ultimate aim of state craft .The rights of men are assets to humanity and a liability of the State. Man has created the concept of state to preserve his natural rights.
The concept of fundamental law and fundamental rights are the of spring of the natural rights . This stands above the positive Las created by the political sovereign . The philosophical foundation of Human right has got tremendous power and vigour . Human rights is legitimacy of democratic political order which is enshrined in most of the constitution of different countries. Rene cassin at Colloguim has defined Human rights as “the science of human rights relates in the light of human dignity for the full advancement and development of personality of human being . Thus the human rights are such written instructions which starts from Magna-Charta -1215 , Petition of rights -1688. The French declaration of rights of citizens -1989 proclaim the natural and imperceptible rights of Man’s liberty ,property, security and resistance to oppression.
The American declaration of independence -1776 ; “ All men are created equal” ( in pursuit of the happiness as endowed by creator upon all men ).The preamble of universal declaration of human rights may be summarised at this juncture ; “ Whereas recognition of inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom , justice and peace in the world ; “whereas disregard and contempt for human rights have resulted in barbarous acts , which have outraged the conscience of the mankind , and the advent of a world in which human beings enjoy the freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people ;whereas it its essential , if man is not be compelled to have recourse , as a last resort , to rebellion against tyranny and oppression , that human rights should be protected by rule of law; “whereas it is essential to promote the development of friendly relations between nations ;”whereas the people of the united nations have in the charter reaffirmed their faith in fundamental freedoms ;whereas member states have pledged themselves to achieve, in co-operation with the united nations , the promotion of universal respect for and observance of human rights and fundamental freedom; “whereas a common understanding of these rights and freedom is of greatest importance for the full realisation of this pledge.
The preamble so incorporated has inspired the various constitution of the world to include certain basic human rights through court of law. The object of human rights jurisprudence is to human state agencies and to make state accountable to use of power only for human good . In A.I.R.1957 SC page 620 it has been laid down that human rights have always under pinned the common wealth. The evolution of empire into commonwealth was itself a testimony of most basic human rights -self determination .
The powerful repudiation due to the diversification from the sense of family concept between people has become one of the major threat to human rights and they have transcending the difference of race religion , language and culture . In Canada under section 11 there is right of the citizens against ex-post-facto law. In China 1982 under 42 there is the incorporation of the rights to work while in U.S.S.R 1977 under Article 75 -2 there is the right to protection by the courts against encroachment on the citizen owner and reputation along with other rights . In west Germany the citizens has right to development of personality under section 2 (1) of their constitutional -1949. These rights although being recognised on principle under the ambit of the expression life , but they are still not been recognised as that of fundamental rights under our constitution . These rights are required to be effectively protected to achieve the principles of internationally recognised human rights as to achieve the ultimate goal of rule of law under the society .No society can be considered truly democratic if its citizens are denied possibility of vindicating their legal rights as enshrined under section 2(d) of the Human Rights Act,1993. Human rights reiterated the need to explore the possibility of establishing the promotion and protection of human rights . The attendant special significance after the Vienna convention 1993 by which strong public opinion was created for safeguarding for human rights . Human rights are aspirations of the common people for peaceful coexistence. Iran has set-up on International Islamic human rights commission .
In Jagmohan Singh Vs State of U.P A.I.R 1975 S.C 1947 , the Supreme court has thoroughly discussed the constitution aspect of capital punishment . In Bachan Singh Vs State of Punjab A.I.R 1980 S.C 598 the sentence was expected to be imposed in rarest among rarest case. Since 1964 amnesty international reported that united state was one of the sixth country known to have executed juvenile offender with death sentence . On 14.2.1989 Ayotollaha Khomeni pronounced’ A Fatwa a sentence of death for Salman Rushidi for his book ‘Satanic Verses’. In China five hundred people were executed in 1990 before the start of Asian games to clean up crime.
The nature of the crime, the circumstances of the crime should be so revealing that if the criminal is managed to escape , he may provide a great terror to the society and in such circumstances the life imprisonment is not an adequate sentence. In such case , after due care and cautions if the sensitiveness of the crime is accepted by a judge , the death sentence may be awarded. Although , life once lost cannot be brought back up by the human efforts.
The fifth pillar edict of great Emperor of Lord Ashoka, postulated death penalty as a heinous crime. Hindu jurisprudence , according to Yagna Valkaya was in favour of capital punishment . Manu prescribed death penalty for offences of treason. Kautilaya has also prescribed the death penalty for rapist , thieves of treasury and also for the thieves of King’s elephant and horses even the individual performing funeral rites was prescribed death penalty.
Theft of jewellery was liable for simple murder (Kautilaya Arthashastra, chapter 85,magin 4, verse 2). Theft of government property from Store of government worth of ten pounds was liable for capital punishment . Theft of private property worth fifty cents and helping the accused to abscond from prison , murder by weapon and culpable homicide were liable to capital punishment . Killing of pregnant women ,sinking of a child into the water after two months of delivery and demolition of the dame shall be dealt with by killing the accused person by dipping him into the water.
In 1991, UN security council decided to implement a general embargo on all deliveries of weapons and military equipment to Somalia. The 46th session of Human Rights Commission of United Nations met from 29.1.1990 to 9.3. 1990.The international commission on jurist intervention the situation of Human rights occupied by Israel in the situation of human rights in China , Iraq and Paris .The commission passed several resolutions condemning Israel. Human rights abuses in occupied territory. The sub-commission expressed its it’s concern about the report such as disappearance and extra judicial execution continue to occur.
In India Human rights group must be created for promotion , prosperity and global stability . The police beatings arrests and execution without trial and mass killing have been reported . This is the crime against humanity , there should be conscious , awareness of such rights amongst have naught and to achieve at the cost of the domestic legislation should be made in conformity with the international standard of such Human rights . The expensive nature of the procedural aspect of praying perform justice is a real stumbling block in achievement of justice.
In Francis versus administration A.I.R 1981 SC 746,Subhash versus State of Bihar 1991 S.C.J 564 , Upendra versus State of Uttar Pradesh 1982 (2) SCC 308, versus Union of India 1987 SCC 156 and in Indra Singh Vs State of Punjab 1995 SCC Crl. 586 citizen for democracy versus State of Assam 1995 SCC Crl. 680 S.C. legal aid committee representing under trial prisoner has laid down that human rights are never safe in the country unless an activists judiciary with pragmatic humanism becomes the sentinel on quivive. In India, constitution really enables the Indian courts to accord due recognition to human rights. Fostering respect for international law is an obligation of the state under the Article 51 of the constitution. Therefore , it has become the duty of the courts of the land to take notice wherever there is a grave violation of the of human rights by the state , or by any authority under the state or an individual . In fact, in the year 1984, the Attorney General of India had appeared before the human rights committee and asserted that both the Supreme court and High Courts accorded priority to the cases of Human right violations and took speedy action to pronounce on them. They were normally settled in matter of weeks rather than months and the committee need have no fear that the remedies against the violation of human rights in India were anything less than very effective.
However, all kinds of courts -even the Supreme Court -sometimes rejecting petition on gross violation of human rights , directly the persons concerned to file individual complaints for alleged offences in the ordinary forums situated in different jurisdictions. One can easily find in almost all the states in the Indian union and in the union itself are of excessive force and preventative steps resulting in death and destruction of ordinary people . Protects and struggle for bringing about social changes which are only natural in an iniquitous system are invariably met by the authorities voluntarily, resulting in violation of the dignity and rights of individuals. It is not therefore surprising that the Director general of Police is trying to justify cover upto the burning down of hamlets of the tribal on the ground of such people giving shelter and good to naxalites.
Human rights dies in harness , but the outcome of the death becomes glory to fortified the concept of Human conscience. The individual stressing for the survival of such rights should be like Arjun to lord Krishna , But unlike Arjun he should never failed to encourage nor even stood in the needs of others another guidance. Like Socrates, he should depend on pure reasons , but unlike Socrates, he should be loved and respected by his country man . The quest of success be parallel to the courage of Napoleon , who on the battle after the battle, but he should never had an adverse water loo. He should have an endeavour for entering into the battle of independence as commander of the Army consisting of his family member with the spirit of brotherhood then only human rights may survive in the society. One should plunge himself into this freedom of struggle , otherwise the human rights can never survive.
In the present context of the political set-up of the country having certain global phenomenon regarding involvement of the politician at large in the nefarious activities by gaining undue prominence without any moral obligation towards the citizens to protect their human rights , there should be the persistent efforts of the people for participating into political sphere as the article of perpetuating corruption by mediocrity and thereby earning enormous money and power to be restricted for which the person willing to sacrifice their future for the betterment of the human rights of the public may come forward . The choice of the people in political arena for launching any political party into the power is just like of patting the snake or Cobra . Destiny is the result of consequences reflecting through individuals action. An urge may lead to big surge . Hell and heaven both exists in a society only the truth remains without any virtue , not with any voice. It is said that where the science ends , religion begins ; where the religion ends spiritualism starts ; where the spiritualism ends , a reality survives. These are the realities of the life in the process of evolution . the creative acts of the genius are always remain the subject matter of criticism as they are usually confronted with optionally stupidity of other fellow citizens. There is a delicate balance between public duty and personal honour . The numerical majority leads to the destruction of benevolent leadership . The human progress do not originate in the composite brains , but it is by the wisdom of the individual personality . Thus in the search of the better human rights provided to its citizens , there is necessarily some impediments in process of evolution and advancement of society because the protection is at large in favour of those citizens who are involved through their activities towards their towards destructive approach for advancement of the society , which is detrimental to the interest of the superior in command . Still there may not be any compromise with the human rights conferred upon an individual.
Society is becoming more complicated. The democracy brings with it evils of its own system . It is difficult to search a really devotes person amongst the majority. Psychological reconciliation amongst fellow citizens to utilise every potential energy and to maintain co-ordination between fellow citizens. Civilisation begins in order , grows with liberty and ultimately perish in chaos , civil liberty are better and save as long as its enforcement do not bother others existence . Administrative system and judicial institutions are considered for vacillation of the purposes. There is always a conflict between opinion and rivalry of the interest. Time has come to expose the falsehood and fallacies through discussions in order to avert its global devolution. The remedy is speech, not enforced silence. The ship of progress is equipped with moral strength. We cannot remain silent spectator by observing the gradual disintegration of every institution in a democratic society. However , our potential will prove the power to save them and to resist against evil disasters . There is no steady advance towards higher condition of progress. The opinion persists to subordinate personal interest to social interest as the vested interest are always motivated to usurp power through any means even at the cost of its own interest. Sincerity is now slave of destructive activities and human rights are passing through the state of psychological retardation. Attitude of the public is mainly consist of denouncing the receptive norms. Moral damage is more terrible. The individual human rights enforcement is inadequately persists and thus the existing remedies are required to fresh appraisal. The entire fabric of the society is scattered and shattered , which is existing with galloping corruption. The proper assessment of legal and social condition is essential. Reason obeys itself while ignorance submits to whatever is dictated to it . Freedom does not mean abuse nor liberty is a license . The survival of the human rights and individual freedom requires obedience, endeavour, honesty , truthfulness, sacrifice , discipline and character . Implementation of the strong idea requires steadfast wisdom. Such idea should burst every chain , which tends to paralyse its efforts to push forward. Most of the people tends to see nothing nor inclined to observe. They do not take the notice of evil consequences as the simplest and the cheapest attitude is apathy. The ensuring success is mostly understood at the beginning due to strong contrast of public opinion.
The principle of reasonableness , legally and philosophically enshrined under Article 19,has been covered in its widest amplitude with the expansion and expression of personal liberty under article 21, which is essential non arbitrariness .Article 14 has a pervasive potency and versatile quality; equilitarian in its soul and allergic to discriminatory dictates. Equality is antithesis to arbitrariness. Thus Article 14 like a brooding omnipresence , protects against the fanciful and oppressive attitude of the public authority (A.I.R. 1978 S.C Page 597). The right to live with human dignity is also derived from Article 39(e)(f), Article 41 and Article 42 , which provides the extension of the limits by providing protection of health and physical strength to the workers , men and woman and children against abuses . The opportunity and facility for the children to develop in healthy manner and to provide them educational facility and other human conditions of work and maternity relief are the safeguard provided on the concept of human rights in Bandhwa Mukti Morcha (1984) 3 S.C.C Page 161 and (1991) 4 S.C.C Page 117 . In the injury cases from accidents , the medical aid by the state government including the aid from private doctors is must and negligence by not providing such medical assistance may be required to be compensated by the state government (1989)4 S.C.C Page 286 and in S.C legal aid committee Vs State of Bihar (1991) 3 S.C.C 482. Delay in execution of death sentence (1989) 1 S.C.C 678 is embodied as violated of article 21 and as such right to pre-legal aid to incapable litigant for engaging lawyer is flow from right to life Khatri II Vs state of Bihar (1981) 1 S.C.C 627 ;(1986) 2 S.C.C 401. The comprehend right to shelter (1990) 1S.C.C 520 ; against handcuffing and parading under trial prisoners has been regarded as violative of Article 21 in Sate of Maharastra Vs Ravikant S .Patil (1991 ) 2 S.C.C 373; Right to education to the children upto 14 years subject to limitation of economic capacity Unni Krishnan Vs Union of India (1993)1 S.C.C 645 and the detains right to confer with the legal advisor and meet family members Francis Coralie Mullian Vs Administrator (1981) 1 S.C.C 608 , speedy trial as provided under section 309 Cr. P.C Hussainara Khatoon (IV) Vs Home secretary , State of Bihar (1980 )1 S.C.C 98 ; (1986 )4 SCC 481 and right to speedy trial Kadra Pahadiya Vs State of Bihar (1983)2 SCC 104 were already considered to be the fundamental rights within the ambit and scope of Article 21 by the apex court . Non citizens are covered and state is oblige to protect their rights of life and liberty N.H.R.C Vs State of Arunanchal Pradesh (1996)1 S.C.C 742, Public trust doctrine for extending to natural resources such as rivers , forests , sea sources , air etc. for ecological balance under ecosystem. M.C Mehta Vs Klamal Nath (1997)1 S.C.C 388 shall preservation of once necessary commitment Surjeet Singh Vs State of Punjab (1996) 2S.C.C 336 ; and right to shelter food , water decent environment education medical care Chameli Singh Vs Sate of U.P (1996) 2 S.C.C 549 against custodian violence D.K. Basu Vs State of west Bengal (1997) 1 S.C.C 416, victim of rape be compensated with award against private party as right to live with humanity Boddhi Sattava Gautam Vs Shubra (1997) 1 S.C.C 490 , Right ot privacy against telephone taping (1997) 1 S.C.C 301 are further being included by the Hon’ble Supreme Court under Article 21.
The field of human rights is now expanding after being defined under the protection of Human rights Act . There are other cases on the subject reported in A.I.R 1983 S.C 465 , (1980 ) 3 S.C.C 526 , (1992) 1 S.C.C , A.I.R 1986 SC991,(1997) 4 SCC 463 , (1987 ) 2 SCC 165 , AIR 1995 SC 31, 264 and 923 which are mainly concerned with human rights and democratisation of remedy of justice. Thus the human rights and fundamental rights are intractably related with each other . Fundamental rights are inviolable , inalienable and indestructible.
The very purpose of such rights is to protect the society . Justice Shastri in Gopalan Vs State of Madras has laid down that the insertion of declaration of fundamental rights in a four front of the constitution coupled with an express prohibition against legislative interference and the constitutional sanction by means of judicial review is a clear and emphatic indication that these rights are to be paramount to ordinary state made laws. Everyone shall have the right to recognition every where as a person before the law . Under Indian constitution the non justifiable rights are incorporated which are not self executor and runs as fundamental in character in governance of Country. In Minark Mills case Hon’ble Supreme Court has categorically laid down that fundamental rights and directive principle of the state policy are to be constitute harmoniously against each other so that there should not be any conflict between them. In daily labours versus Union of India AIR 1987 S.C 2342 the government was asked to immediately pay all causal and permanent workers the same minimum wages as are applicable to permanent employees in order to implement the directive principles under Article 38 (2) . The fundamental rights are so classified as to impose limitation on state action under Article 14, 15(1), 16 , 18(1), 19, 20, 22, & 31. There are other provisions which are limitation on freedom of action of private individuals for example Article 15(2), 17, 18(2),21(1) and 24. There are some anomalies which are depreciated as under :-
i)If the fundamental rights guaranteed against state action are violated by a private individual , there is no constitutional remedy . The remedy in such situations by giving punishment to the offender is inadequate and disproportionate to the losses suffered by the ordinary citizens.
ii)Article 15(2), 17, 23(1) and 24 referred to above are the social abuses and the prohibition are not directed exclusively against the state.
The Judiciary has duty of implementing the constitutional safeguard that protects the individual rights and the ideal of judgement cannot be shirked. Our legislature have undoubtedly plenary powers , these powered have are controlled by the basic concept of written constitution .
If we consider human being from the global perspective then the state is required to develop the personality of the citizen on all spare of life as the concept of human rights and fundamental rights are one in spirit and soul which are intractably related with each other .
The journey of human rights jurisprudence could be traced starting from individual liberty and reaching towards the concept of human entitlement. The path of human rights does not run smooth and straight every day we stumble against the irrationality . Reason is rushed to one side and rights are trodden under foot . The idea of universal human rights in under assort from strong cultural political , religious and ethnic pressures , this is because of monstrous fiction which by inspiring false idea and vain expectation into man destined to travel in the obscure walk of laborious life serves only to exaggerate and embitter that real inequity can never be removed .
Freedom survive to a point , when its start destroying in itself . Inequality is the common feature amongst the human being . The rights of equality is based on legal and social concepts in the society . A hierarchical society based on the idea of economic inequalities was founded on the distinction and the sex , whether based on a rituals or on our customs . In the ancient cosmological explanation in Vedas time, the punishment of the crime varied according to the caste. The murder of a Brahmin was considered as a mortal sin while slaughtering of a Shudra woman comes under the category of the minor offence which shows that the life of the Shudra was not worth living.
The British colonial administrator introduced three important legislation , namely ; abolition of slavery in 1843 ; abolition of Sati system in 1829 and prevention of female infanticide in 1870 . There after the recognition of the free status by protecting the life o0f the woman , her internal tender female babies , recognising them with equality in birth of the human life was introduced through the administration of the justice . The lad control system prevalent in pre-colonial India was regarded as most important form of the wealth and the source of livelihood .This land was brought to the market and it could be sold . The new purchasers work overwhelmingly non -resistant and belonging to the occupation of the money landing , service and the law. Thus the Raitware system introduced which ultimately resulted into Zamindari process of cultivation. The poor became much poorer while the money lender became Zamindar and started ruling upon the pre-colonial residents as their slaves. After the freedom from the colonial rule , the constitution of India gave rise to the concept of equality as to resolve the people , the basic rights relating to equality to sponsor a further goal to minimise inequalities of income and to endeavour to eliminate inequalities of status , facilities and opportunities . Article 14 sets out an attitude of mind , a way of life rather than a rule of law . According to right of equal equality it postulate that no citizens are above the law and as such the legislation shall not violate the right to equality of a citizen . However , the doctrine of equal protection of law was based on rational classification which forbids class legislation. There were a test of permissible classification and if it is founded on intelligible differential in relation to the subject sought to achieve then that classification was considered to be rational classification .
By the introduction of Article 38(2) after 44th amendment of our constitution the state shall strive to minimise the inequalities in status , facilities on opportunity not only amongst individuals , but also amongst group of people engaged in different occasions. The revolutionary constitutional assumption into mere appeasement of status quo from where the power to the political and economical uplift in derived are known as ‘compensatory discrimination ‘, protective discrimination and in more generic terms reverse discrimination which means favouritism to a despaired group of recipient of extra favourable treatment . The constitution of India does not exclude government servant class but on account of Article 33 , such persons having selected under the armed forces might be deprived of their fundamental right under the garb of discipline forces . The civilian employees of the defence establishment such as cooks , chaukidars , barbers also comes within descriptions of armed forces and consequently the legislative becomes competent by notification to make rules containing or restricting their fundamental rights . This is a very peculiar situation especially on account of continued neglect of military affair and attempt to politics the members of armed forces like that of dismissal of the Chief of noble staff. The gradual decline of rights of the personal in the defence services much be stops through introspection as corrective measures , if we want to protect our country from the external aggression . The social recognition and healthy working involvement are within their respective zones under the frame works of equality class relating to the matter concerning human rights.
There is no appeal against the verdict of court martial and there is no provision of bail to the convict of court martial , even it is available to all hardened criminals. The Supreme Court in Hussainara Khatoon case (1980) 1 SCC 81 has laid down that the unfortunate specimen of humanity awaiting trial for criminal offences are in jail being deprived of their freedom , but the Hon’ble Supreme Court has not taken into account the Hardships suffered by a soldier who is deployed for protecting the nation , to whom such right is not amenable under our constitution , whether it is not equally important to maintain a social discipline amongst the citizen by having a rational classification based upon intelligentsia , differential by framing a classification between bonafide citizens and under trial prisoner in the context of which discipline under the armed forces is required to observed. In Moti Ram case (1978) 4 SCC 47 the Supreme court has taken into consideration that against the sureties if under trial prisoner is not able to satisfy his solvency then they have to incur morose depths for securing their release . Thus poor kin dour legal judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs as they6 do not find a solution for their release and watch helplessly in a position of inequality with the non poor . The Hon’ble Supreme Court has not yet considered the hardships faced by members of the armed forces who are still governed by respective Army or Armed Force Act , which are enacted by British to suit their interests. In absence of social recognition in healthy working environment which still prevail that of days of British period , can be members of armed forces may feel pride to join the forces . There is a wound being chaffed again and again to the members of the armed forces before it can heel when the start comparing themselves from the rights available to a under trial hardened criminal who still after his conviction remained released on bail during the long span upto a period varying from 20 to 30 years when his appeal is heard on merit by the Hon’ble Court.


Legal institution and justice

“I am unjust , but I can strive for justice ,
My life’s unkind ,but I can vote for kindness.
I, the un-loving, say life should be lovely,
I, that am blind , cry against my blindness
Justice is the end of government just to enjoy the peace of mind. Law is a means to an end. The essence of law is duty. It is a result of constraint struggle; an struggle of conflict with a view to attain peace and order. Law is the guaranty of condition of life in society assured by the state‘s power constrain. Thus the legal institution may provide the stability in the political sphere ,if we start thinking in the process of rectification of the present problem enunciated by theoretical approach and by the correct analysis of the sociological jurisprudence to promote sociological study in connection with the legal study is the fundamental right for preparation of legislation , which may improve by intelligent effort discovering the best means of furthering and directing such efforts . Thus it is very essential to learn the basic principle of jurisprudence and adopt a positive approach for imparting the justice to the individual litigant in the society.
Jurisprudence means systematic knowledge of the law .It is known as science of law Thus the jurisprudence may be considered to be systematic arrangement of the principle of the law the principle of the law, the principle duly recognised or enforced by the public and legal institution in the administration of the justice .The general rule of external human action enforced the sovereign political authority in the common law . Jurisprudence is concerned with fundamental conception , the sovereignty does not reside in the legislatures or executives ,but in the total aggregate of persons , who are members of state and are primarily represented by the existing body of electors. The instrumentality of sovereign is endowed with powers to be exerted with on behalf of the legislature cannot invoke the sovereign power of the people to override their will . Thus the sovereignty is vested in the people and not with the government to exercise their sovereign powers . If the government ignores the protection of social interests of the people then it has no authority to discharge its sovereign powers. Thus one has to find that the sovereign power is exercising its functioning in the ultimate interest of the people , which may attribute sovereignty to that entity .
Jurisprudence is the eye of law. It is innovation of the legal invention for protection of Human behaviour, which maintain intense relationship for advancement of mankind . Thus the jurisprudence is the wisdom of law , which is the ultimate purpose in pursuit of the advancement of Human conduct , If we are not aware with the realities of the life and the problems of the society , we may not be discharging the duties of sovereignty . The legal institution may not serve its purpose if other considerations have the over riding effect and there after the habitual obedience from bulk of human society will completely be vanished . Thus there should be the attempt to change the law within a reasonable living stream , but it may not become stagnant pool of conflicting precedents. If the subject of the law is the science of the man to the political ethics , the legislation may perfectly regard to discharge its duty in the strictest sense The science is not limited to the study of external conduct. Thus the first requirement of law is to correspond with the actual feeling and demand of community . The guardian of the law have made no serious efforts to curb the number of cases and they could not be worked out inspite several assurance of the Hon’ble Court.
The Hon’ble Supreme court in the S.P. Sampath Kumar Vs Union of India 1987 (1)SCC Page 124 , while dealing with the provision of section 28 of the Administrative Tribunal Act , 1965 , laid down that the exclusion of the High Court jurisdiction under the Article 226 and 227 of judicial review in service matters It was held by the five Hon’ble Judges of the Hon’ble Supreme Court concurring judgement that the said act would not be rendered unconstitutional .It was held that Article 323-A authorising exclusion of the jurisdiction must provide for an effective alternative institutional mechanism or authority for judicial review . The supreme Court has referred the decision of Minerva Mills Ltd. Vs Union of India A.I.R 1980 S.C Page 1789 wherein it was held that the judicial review is the basic and essential feature of the constitution and if the power of judicial review is abrogated or taken away the constitution will cease to be what it is. However it was held that if the power of the high court are curtailed from judicial review and it is vested in any other institutional mechanism or authority , it would not be violative of basic structure doctrine.
The central administrative tribunal was given the jurisdiction parallel to the jurisdiction vested under Article 226 and 227 of the High Court. By virtue of such power it was held in the case of union of India Vs Paramananda A.I.R 1989 S.C Page 1185 that “ we must unequivocally state that the jurisdiction of the tribunal to interfere with the disciplinary matters for punishment cannot be equated with an appellate jurisdiction . The tribunal cannot interfere with the finding of the enquiry officer or competent authority , where there are no arbitrary or utterly perverse . It is appropriate to remember that the power to impose penalty on a delinquent officer , is conferred on competent authority either by Act of legislature or rules made under the provision of article 309 of the constitution . If there has been an enquiry consistent with the Rules and in accordance with the principles of natural justice , what punishment would meet the ends of justice is matter exclusively within the jurisdiction of the competent authority or the penalty can be lawfully imposed and is imposed on the proved misconduct , the tribunal have no power to substitute to his own discretion for that of the authority .This principle was consistently followed in Govt. of Tamilnadu Vs A Raza Pandian A.I.R 1995 S.C.Page 561 ,State of Tamilnadu Vs S . Subramanian A.I.R 1996 S.C Page 1232 and state of Tamilnadu Vs Thiru K.V Perurmal A.I.R1996 S.C page 2474 .
The supply of th ecopy of the enquiry report to the delinqent seeking his explanation against the proposed action was considered after the case of Union of India Vs Ramzan Khan J.T 1990 (4) S.C page 556 , in the case of Managing Director ECIL Hyderabad Vs B.Karunakar reported in J.T 1993 (6) S.C page 1 was considered that it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him . It will not be proper to construe his failure to ask for the report ,as waiver of his right .However , this precedent remain valid upto the period when the supreme court in the case of S.K.Singh Vs Central Bank of India 1996 (6)S.C.C page 415 has laid down that the non supply of enquiry report is in consequential if no prejudice is caused. The Hon’ble Supreme court in the case of State Bank Patiala Vs S.K. Sharma reported in A.I.R 1996 S.C page no 1669 has laid down that an order passed imposing a punishment on an employee consequent upon the departmental enquiry ,while dealing with such case ,.The Hon’ble Court in case of a procedural provision mandatory in character if found to have waived or in such situation where the rule of Audi -Alteram partem has not been applied ,then the order of punishment cannot be set-aside on the ground of said violation until the test of prejudice may be called to the delinquent. Thus ultimately further curtailing the scope of judicial review as was being exercised by the central administrative tribunal was visualised during the course of arguments and in getting the judgement from the Tribunal to the delinquent Govt. Servant was visualised during this period .
The Hon’ble Supreme Court in the judgement reported in 1997(3) S.C.C page 261 L.Chandra Kumar Vs Union of India consisting of seven Hon’ble judges has now over ruled the earlier judgement of five Hon’ble Judges constitutional bench in Sampath Kumar case. It has been laid down on the basis on the basis of Keshavanand Bharti case decided by the power of judicial review vested in the High Court under the Article 226and 227 is part of the basic structure of the constitution . Judicial review comprises of three aspects ;Judicial review of legislative action , Judicial review of judicial decisions and judicial review of Administrative action tribunal is not a substitute for the high Court .Thus section 28 of the Administrative tribunal Act divesting the jurisdiction of of the High Court in relation to the service matter and article 323-A and 323-B of the constitution of this extent are unconstitutional . The Hon’ble Supreme court has laid down that until a whole independent agency for administration of all such Tribunals may not be set up and the entire system may not be languished and ultimate consumer of the justice under the supervision of the Administrative function may not be formulated by the Union of India .The system may carry on and the tribunal will continue to act like courts of first instance in respect of the areas of law which they have been constituted .Thus the tribunal on account of this judgement instead of exercising the power of judicial review as is being exercised by the High Court under Article 226 and 227 of the constitution of India is conferred with the jurisdiction of the court of first instance in respect of areas referred under sec 14 and 15 of Administrative tribunal Act , 1985
Now the question arises what is the significance of judicial accountability in respect of conflicting judgement of the Apex court which are meant to exercise the jurisdiction as that of the law of the nation. The first requirement of a sound body of law is that it should be correspond with the actual feeling and demand of the community. A law embodies beliefs that has triumphed in the battle of ideas and then translated themselves into action . The legal Institution of the knowledge of jurisprudence and the social requirement of imparting justice to the litigants requires that the exercise of the judicial precedents may not be top harror and unconscionable as it may loss site from the very basis for which the law is meant for we cannot confine ourselves to the formal legal; materials ,but we have to go beyond to find out now people actually live in the society . The centre of gravity of legal development lies not in legislative nor jurist’s science nor in judicial decision but in society itself . If we want the real law regulating the people , we have to become aware with the hardships suffered by the litigant people and for now the same is being is ignored as what is in actual practise governing the relations of the employer and employee , some limit has to be drawn because otherwise jurisprudence will dissipate its energy over too widen area .
The requirement of the society in the present political set-up is not mere formality , but it requires an accountability of each and every public officer who are exercising their powers through quasi judicial functioning vested with them in dealing with the departmental proceedings against the delinquent employee. Till suitable restrictions in exercise of such discretionary powers vested with the superior authority may not be enforced through the proper legislation or administrative instructions and punishment of warning . Adverse entry, censor and stoppage of the increment may not be imposed against the superior officers exercising his power by making an abuse of misuse of his discretionary power, may not be imposed in the case of failure to discharge such obligation, when the Hon’ble Court or the administration found the lapses and dereliction of the duties on their part , the justice cannot be given to the delinquent ,simultaneously for frivolous litigation should also dealt with exemplary cost against the fraudulent litigants as fraud and justice never dwell together and fraud and deceit defend or excuse no man .The Hon’ble Supreme Court in the cases of S.P.Changalvaraya Naidu (dead) by L.R Vs Jagan Nath (dead) by L.R repoted in A.I.R 1994 S.C 853 ,inre, Indian Bank Vs M/s Satyam Fibres J.T 1996 (7)S.C. 265 and in the case of Municipal Corp. of Delhi Vs Kamla Devi A.I.R 1996 S.C page 1733 has dealt with this aspect and found such proceedings by way of sharp practice , which are designed to abuse process of law and impose exemplary cost against the litigants . It its the need of the time the very public office should have its accountability in respect of discharging its legal obligations and for that purpose , there should be the appointments of the officers and the legal experts instead of leaving the matter to the discretion of the administration only then the justice may be realised to the individuals from the courts of law. Mankind must either give themselves a law and regulate their life by it or live no better than to limit natural liberty of a particular man such a manner as they might not hurt anyone. A herd of wolves is quieter and more reasonable than the mob for one reason or other . According to Hindu Mythology , it is meant to regulate the human conduct amidst diversities of inclinations and desire so as to reconcile harmonically to the wishes of the individual wityh the interest of the community , while according to Mohhmadden law the purpose of the law is to promote welfare of he man , the improvement of morals by keeping the preservations of the life ,property and reputation. Its purpose is to encourage obedience by offer of reward and to discourage obedience by imposition of severe penalty . Thus the object of the law according to Hindu mythology in not to the punishment of the sins, but to prevent certain external results , while according to Mohammedan law , it is the obedience by offer of the reward and as such even the capital punishment is regarded appropriate in certain cases .
The importance of the justice is the wisdom of the law , as the law is without doubt a remedy for greater evils , yet it brings with it evils of its own . The object of the criminal justice may be referred from the angle of its implementation in the society . The deterrent aspect ofd the punishment is to protect society .According to Hindu Mythology penalty keeps then people under control , penalty protects them , penalty remains awake when people are asleep , so the vice have regarded the punishment as the source of righteousness. The preventive aspect concentrates on the prisoners to prevent them for offending again in future . The retributive theory is considered to allow the victim to take the revenge . Plato was the supporter of his theory to quote him ; “ If justice is good the health of soul as in justice is its disease , chastisement is its own remedy” Judicial punishment are serve as a mean ---- good for the society . Everyone gets what is his due according to his deeds. The re-affirmative theory with the object to bring the moral reform of offender which unfortunately has been adopted as that of criminal justice has assume undue prominence on the other aspects of the criminal justice . This is the reason why the crime has now perpetuated in every sort of walk of life.
Let us examine the actual purpose of the legal institution in the context of providing justice to the individual . Society has now emerged with a complete deteriorated conditions of life. The existence of the individual citizen is on the stake in every walk of life . If we forgot the realities and start building the new structure on the basis of hypothetical presumptions ,we are bound to fail in administrative of justice . Now a day every proceedings based on the basis of evidence and what to say about the evidence when the very existence of the individual citizen is in itself deceptive. If we start adjudicating the cause on the basis of false evidence , the legal institution is bound to collapse . The custodian of the public interest are now playing the role of pirate . The robbery is committed with a licence by the Govt. servant . In such situation one should realise that it is only the accountability of the individual official in respect of his function , only then the society can survive . If we keep on having the expectations without rectification of the prevailing maladies , where the litigation are instituted with the falsehood and there is no accountability of the erring individual in such process by imposition of the proper punishment , justice can never be imparted from the court of law .There happens some shock thrilling experience in day to day life as that of every individual happens to think over the present set-up of the parliamentarian democracy in the context of the law enforceable agencies , who have become the pathetic observer of the surrounding over them . The day light robbery is committed of the passengers travelling inside the bus and when they proceed in the direction to lodge the report in the competent Police Station then the robber again enter and return back the looted articles under the protest that the valuable are of the lesser value then they ought to provide to the concern Police Officer as to get exoneration from the punishment . If the miscreant are threatened with the toy automatic Rifles and per chance the threatening is succeeded then next repercussion happens by the unwarranted query from the police officer regarding the factum of unauthorised weapon in the custody of the house keeper and thereafter on relieving the substance of the truth in respect of false threatening given by him , the police department from the scene and miscreants again comes and kill the house keeper , who is the informer ?If the execution of the crime is on the behest of the police then how the society may be protected and what the legal institution will help to solve the basic problem . Thus it is only the deterrent theory of punishment , which can provide protection to the society.