THE PURPOSE OF LAW? The purpose of law is to serve the society. In absence of fulfillment of the requirement of the public at large, the enforcement of the legal provisions are of no consequences. It should serve for the advancement of harmony and social coordination. The rigmarole of technicalities may not come into the way to defeat the vary purpose for which the law has been enacted by the representatives of the peoples. The institutions of legal enforceability can only be run by the strict enforcement of liability and obligation. Thus in the present circumstances when we have completely lost our grip on the foundation of the implementation to the provision of law, we cannot claim ourselves to be a society equipped with the law and order situation. The criminal law is completely inapplicable for the vary reason that the law enforcement agencies who were seldom considered to be acting for oblique motive, usually dragged in the process as the destroyer of the provisions in the respect of its implementation for the advancement of the society. In such circumstances, judiciary which is enshrined with a power of judicial accountability has proven to be of significant use for the implementation of the provision of law. If the accountability of the administrative authority are given to judicial officers, there are every possibility of mis- utilization of the judicial power. Thus a system is required to be evolved in which the erring official dealing with quashi-judicial powers may be made accountable for the abuse of discretionary power by the enforceability of the verdict preannounce by the court of law and if it is found that the decision is vitiated on account of colourable exercise of power, the disciplinary action may be recommended against such officer by the superior authority. In such circumstances, there is again a possibility of making an abuse of the power conferred with the judicial authority. Thus in order to make a respectable balance by check and powers, the guidelines are given by the constitutional courts. That the subordinate judiciary is recommended by the nomenclatures of the judicial officers, presiding officer prescribed authority and judges but by the same time the judges of the High Court and Supreme Court are represented as the justices. This has been done purposely in order to provide a harmonious infiltration of the legal provision with the justifiability of the circumstances in according with equitable jurisdiction conferred upon the constitutional courts. However by the efflux of time, the apex court has experienced the power conferred upon the Hon’ble justices of the High Court for fixing accountability is not in public interest and rather there are possibility of misusing the judicial power. Thus the judicial institution have also faced the similar difficulty what the administration was facing in dealing with the unsocial elements in the society. This is virtually a paradox of the situation that every pillar of the judicial verdict is founded on the basis of the public opinion and once the public may start losing its trust in the system, no one can save the judicial institution from further deterioration and ultimately it is bound to collapse by its own weight. This is the high time for revival of the reputation of the judicial institution by having a new era of the set-up with the changing circumstances of the social coordination. The law and justice may not be allowed to become in mute spectator. There is an alarming situation in dealing with the law and order by the administration. The old ideology that right is might, is prevalent in the present circumstances. It is an irony of the circumstances that in the proceeding for keeping peace and good behavior by the public and also in respect of a dispute likely to cause the breach of peace, the title of the immovable property is seldom taken into consideration by the Magistrate but the paramount consideration is given for the determination of the possession. This power is seldom misused by the person having predominating muscle power for his assistance to usurp the property of the innocent citizens but the law remain silent spectator of the situation in which the actual owner is deprived of his valuable property right by the stronger person. Thus there is a requirement for having some spontaneous changes in the provision dealing with the situation regarding apprehension of breech of a peace by the Magistrate. Now coming to the other side of the picture, the law has been formulated in order to put a restrictions on the power of the Magistrate to decide the factotum of the title but the power has been deled with determination of right by the court of civil jurisdiction. This is a hobson’s choice. There is a counter productivity in every exercise of power and as such the law has tried to make a check and balance. The practical approach is neither in demoralizing the innocent public from the external aggression of the unsociable element through the production of legal provision and the interpretation thereof but to dealt with the circumstances as actual justice may be imparted in favour of the genuine person. The matter has been left over to the Hon’ble court of the judicial hierarchy to provide a bonafide use of the power in dealing with the circumstances of the case. The mere infraction of the provision of law may not be sufficient for invoking the jurisdiction of the constitutional court, but an endeveour is required to be seen as to whether the technicalities of the legal provision are not creating a bar to provide substantial justice to affected person in respect of the enforceability of his legal right.The Chapter III of the constitution of India is dealing with the fundamental duty of the State Government except certain individual rights conferred under ‘Article 19 of the constitution and collective right of conscience, faith and religion under Article 25 of the constitution of India. Although the violation of any such fundamental duty of the citizen may give them a power to file a writ petition under Article 32 and Article 226 of the constitution of India, but whether the law has made any accountability with such authority who is indulged for bypassing the law. Thus everywhere against the arbitrary, discretionary, whimsical action of the officer dealing with the State responsibility, the option open to an innocent citizen is to resort the protection of law by filling the suit, writ petitions and other representation as the case may be. The concept of the sovereinity vested with the State is not so wider as to drag the innocent citizen unnecessarily for the infringement of their valuable rights and a there is a reciprocal obligation upon the State to fix the responsibility of their officers if there are violation of the principle of equitable justice and the provision of law. It is very strange that if an officer is guilty of committing any subordination to higher authority, he may be punished by the appointing authority in the disciplinary proceedings but there is no punishment for violating the law against such officer. Thus in India here is no Rule of Law but the Rule of Leizure-feir, privilege orientation an the ruthless power conferred to the politician, bureaucratic and also to the criminals . The criminal laws are explicit for the purposes of demonstrating the bonafide of law enforcement agencies. The principle of reformation of the criminal is of no resort to check the client. There should be a fear in the mind of the invader of the crime not to repeat the similar act as the consequences are much severe then the benefit for commission of the crime. The victim of the crime is innocent person and as such the revenge from the accused person by the victim or the dependent of the victim, even though it may be wicked, it is of natural consequences. We can not shut our eyes on the reality of this aspect of the picture. The purpose of law is to provide substantive protection to the society and the social justice within empowerment of the remedy to the people at large. Let us examine the legal history for getting the answer of these melodies.The substantial question of law and formulation thereof is a further dimension for imposing the restrictions upon the power of second appeal before the High Court. It is seldom found that in concurrent finding, there is substantial injustice suffered by the litigant. The judgement is not vitiated on the legal issues but such issues are dealt with contrary to the pleading on record. Thus when there is a malafide intention of the subordinate court to dealt with the issue involved in a civil case, it is very difficult to get the substantial justice. It is said that fraud and justice do not dwell together as fraud neither defend nor create any right. In such a situation, the justice is far away from the approach of the poor litigant who has come forward for the protection of his right before the court of law. There are so many obstacle in the process wherein even if it is found that there is the infraction of valuable rights conferred upon a citizen but in absence of the remedy due to the rigmarole of technicalities of limitation, an other procedural justice, he is helpless to get the enforcement of such rights from the court of law. There should be a system in which one may espouse his cause by laying the security to certain extent for adjudication of his cause. The maxim that if there is a right, there should be a remedy for the enforcement of such right through the process of law may be made applicable in such circumstances. That a poor person is dying through starvation and also on account of inadequate medical facility which are inherent rights conferred to a citizen under Article 21 of the constitution of India by implication. On the other hand, a criminal under preventive detention is provided every sort of the luxury on the cost of the public while he is confined in jail for violating the law. If the government is incapable to provide the minimum guarantee of food and shelter and also to the employment to a qualified citizen in service, there is no justification, which may permit the State Government to invest exorbitant expenditure for maintaining the criminal through such protection. Thus an existing structure of the society is based on the orientation of such policy which are artificial for demonstration but such policy are not meant for the protection of the citizen. The State Government is seldom found for promulgation of the ordinance to defeat the right of the public protected through the verdict of the court of law. There are the instances of accumulation of the disproportionate assets with the officer empowered to issue the permit, licenses and quota while having the distribution of the restricted/ essential commodity. The moment, the citizen is not amenable to grease the palm by illegal gratification to the officers assigned with the responsibility of distributing the permit/ licenses and And thereafter if per chance, verdict of the court is delivered in his favour then the ordinance is issued by the respective secretary in the state government just to defeat a crystal clear right in the favour of the innocent citizen. There is nexus between the politician and bureaucrats for the distribution of the disproportionate assets amongst themselves without having any proper vigilance over such pathetic situation prevalent in the country after the independence. The public good is above the consideration of the individual rights. There is a delicate balance between the rights and duties and the fundamental right are only enforceable to the extent that they may not effect the society leading to public inconvenience . In the recent case the dimension of administrative or quasi-judicial functions were transcribed in respect of the dimension given to Article 14 and 19(2) to 19(6) of the constitution of India. (Consumer Action Group v State of Tamil Nadu 2000 S.C.C (7) 425.) There is also are gradual relaxation of the rigour of the rule of natural justice in Aligarh Muslim University v Mansoor Ali Khan 2000 S.C.C (7) 529. That the Hon’ble Supreme Court has provided a dimension to the different articles in order to provide a guidelines for effective administration of justice. It has been held that no religion prescribes that the prayer are required to be perform through voice amplifier or beating of the drum and use of microphone for the purposes of attending the religious ceremonies has been prohibited in Church of God (Full Gospel) in India v K.K.R Majestic 2000 S.C.C (7) 282. Thus despite the mandate by issuing the writ of mandamus by the Hon’ble Supreme Court to the administration at large in the public interest litigation’s through judicial activism, nothing has been taken as granted to the public even after declaring the same as the law of the nation. Thus the judicial procedure, which is based on a tedious process is required to be provided by fool prove system for the benefit of the public. The comedy of error does not lie in our celebrated principles but since there is a complete erosion of the fear from the mind of the citizen indulge in violating the law and there is no machinery to make a control upon the simple invasion of such right, the public is bound to adhere what is given to it by the grace of the public servant. The other aspect of the picture is that the officers in the public administrations have become so privilege oriented that they have forgotten that they are the servant of the public. They are the incidents which were highlighted during the reign of British Empire when the Indians were treated as the slaves but still there was the respect to the right of the Indians in respect of enforcement of their privilege conferred in accordance with law. There was I.C.S officer namely Lobho Prabhu posted as D.M., who was assigned with the responsibility to get the recruitment over the land of the farmer betaken away from the clutches of Jamidaar in the area. The D.M. used to visit on the site of the encroachment and it was only there after that the actual verdict is pronounced in presence of the affected parties in presence of public at large and nobody was supposed to carry on an illegal occupation. The grounds of appeal were limited only to extent of malafide intention of the judicial officer in carrying on his duties and as such there was an allegation labeled against such I.C.S officer to the extent that since he has accepted the feast given in the honour of the officer by the poor farmer by offering the Rohu fishes and as such the verdict given In the case in vitiated. The defense taken at privi council of England that since the public is the subject of the crown and the I.C.S officer is the servant of the crown and as such it was not within the power of servant even to provide sentimental breakdown to the public. The mere allegation of accepting the post decisional bribe in the form of the feast was nothing else then to protect the sentiment of a poor litigant who was given substantive justice after a prolonged litigation against the Zamindar. Thus there is the definition of the judicial functioning of the British period which is completely changed in the present atmosphere after the independence of our country.
Posted on: Sat, 12 Jul 2014 07:46:53 +0000