Comments on: Lawyers are nicer than sharks http://samsonblinded.org/blog/lawyers-are-nicer-than-sharks.htm A Machiavellian Perspective on the Middle East Conflict Sat, 19 May 2012 18:30:58 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Yogesh Kumar Saxena, Advocate http://samsonblinded.org/blog/lawyers-are-nicer-than-sharks.htm/comment-page-1#comment-75955 Yogesh Kumar Saxena, Advocate Mon, 07 Jan 2008 17:16:37 +0000 http://samsonblinded.org/blog/lawyers-are-nicer-than-sharks_293.htm#comment-75955 In recent months sob stories about the so-called socio-economic backwardness of Muslims, based on the Sachar Committee Report, have been making waves in the mainstream English media, both print media and T V channels. Interestingly when I asked some voluble minority-centric journalists whether they had read the Sachar Report, they admitted that they hadn’t. Some even admitted that they had written banner headline stories solely relying on whatever material was dished out to them by members of the Committee, especially by Dr. Abu Saleh Sharrif, who happens to be the Chief Economist of N C A E R, and was Member Secretary of Sachar Committee. Many confessed that they had not paid attention to, nor read the Rejoinder issued by our Thinktank, Patriots Forum, highlighting the fact that Sachar Report abounds in innumerable instances of suppressio veri, suggestio falsi. For reasons best known to Justice Sachar and Member Secretary of the Committee the report has deliberately concealed several important facts. For reasons not altogether inscrutable, it took recourse to shutting out important data provided by our Forum in two Memoranda submitted to the Committee on October 26, 2005 and May 18, 2006. In the aforesaid facts-and-data packed Memoranda it was specifically brought to the notice of the High Level Committee that in respect of four globally recognised important human development indicators, namely, Infant Mortality, Child Mortality, Degree of Urbanisation and Life Expectancy at Birth, the Muslim community is certainly ahead of the Hindus. It was further pointed out that the major causes of the lower per capita income of Muslims (often tom-tomed as the so-called backwardness of the community) are two. First, due to non-acceptance of small family norm, every Muslim woman is giving birth to at least one more child than her Hindu counterpart which increases the dependency burden on the breadwinners and households. [Source: National Family Health Survey –2 and Census 2001 data}. Second, the work participation by Muslim women is 50% less than that of the Hindu and Christian women, the respective ratios being 14.1% for Muslim women as against 27.5% for Hindu women and 28% for Christian women. [Source: Census 2001]. These are two major factors impacting the income of Muslim households. The per capita income of Muslims naturally goes down because of higher dependency ratio vis a vis other communities. The abnormally low work participation by Muslim women (due to the diktats of clerics and religious scholars) gives an unrealistic slant to the data about the proportion of unemployment (or employment) because the total unemployment level (or employment level) of a community is arrived at by averaging the sum total of the male and female unemployment. These important facts and the relevant data highlighted in our Memoranda have been totally concealed in an inelegant manner by the High Level Committee in their report. Reasons are not difficult to guess – ours is essentially a vote-bank besotted polity. Most importantly the Committee has deliberately downplayed the huge advantage accruing to the Muslim community by virtue of their higher degree of urbanization, the community having a whopping advantage of 10 percent over the Hindus, the respective averages being 36% for Muslims and 26% for Hindus. According to the economic theory, urbanization is not only an important barometer of economic prosperity, but the vital key to speedy development of any country or community. Goldman Sachs, a globally acclaimed professional group of economists, have highlighted the importance of urbanization in their Global Economics Paper No. 152 (India’s Rising Growth Potential) by pointing out that every movement of surplus labour from low-productivity agriculture to high productivity industry and services contributes about 1 percentage point to annual GDP growth because in India “productivity in industry and services is more than 4 times that in agriculture which employs nearly 60% of the labour force”. The report draws pointed attention to the fact that South Korea has a high urban population of 81 percent, Malayasia 67 percent, China 43 percent, while India has only 29 percent population living in urban areas. There is a very powerful link between the degree of urbanization and economic prosperity of a community, or country. The more urbanized is a community, better is its economic status. The Goldman Sachs Report proclaims on page 18 that “the 21st century is set to become India’s ‘urban century’, with more people living in cities and towns than in the countryside for the first time in history”. It estimates that another “140 million rural dwellers will move to urban areas by 2020, while a massive 700 million people will urbanize by 2050.” It requires no great wisdom to assess which community, the Muslims or the Hindus, is presently better placed economically and well set on the future road to greater prosperity. Obviously, the Muslims have a huge advantage over the Hindus in terms of economic prosperity and economic development. The Member Secretary of the Committee, Dr. Abu Saleh Sharrif, who happens to be the Chief Economist of the National Council of Applied Economic Research, is fully aware of the truth that urbanization is the biggest driver of economic development and prosperity. But he deliberately chose to suppress this important fact, highlighted in our Memoranda, for reasons best known to him. The Muslim percentage of urbanization at 36% is barely 7 percentage points behind that of fast developing China, while the Hindu percentage of urbanization languishing at 26% is not only 10% short of the Muslim average, but is lagging behind China by a huge margin of 17 percentage points. What better proof is required to prove that economically the Hindus are far more disadvantaged than the Muslims? And they will continue to be far behind Muslims during several decades ahead! The fact that there is hardly any difference in the economic status of Hindus and Muslims was further corroborated by the results of a recent N.C.A.E.R. survey covering 63,000 households, spread over 1,976 villages, 250 district and 2,255 urban wards (342 towns), conducted by the Senior Fellow, Rajesh Shukla, which gave a direct lie to the flawed findings of Justice Sachar Committee.[Source: A news item captioned Hindu, Muslim equal in income’ Economic Times, New Delhi, April 5, 2007, pp. 1 and 12]. Incidentally the Member Secretary of Sachar Committee, Dr. Sharrif, who unabashedly concealed the truth while writing that obfuscator report, as well as Rajesh Shukla, whose research disclosed that the economic condition of Hindus and Muslims was almost at par, belong to the same organization, namely the National Council of Applied Economic Research ! Well, that should be a matter of concern to the Indian nation, perhaps much more to the National Council of Economic Research. Furthermore, though para 2(a) of the Notification dated March 9, 2005, specifically directed the Committee to undertake “an intensive literature survey to identify the published data, articles and research on relative social, economic and educational status of Muslims in India”, apparently the Committee did not undertake any such survey. In fact, the Committee deliberately ignored the two facts-and data-packed research papers presented in a Workshop-cum-Seminar on the subject held on September 2, 2006, at the prestigious Indian Institute of Public Administration which comprehensively rebutted the Committee’ pre-conceived thesis that Muslims were economically and educationally disadvantaged compared to Hindus. One of the Papers, circulated by Prof. Sanjay Kumar (Fellow, Centre for Study of Developing Studies), based on a survey of more than 27,000 respondents, categorically stated that “there is hardly any difference among the level of educational attainments among Hindus and Muslims”. It further concluded that “contrary to the common belief that Muslims are poorer compared to the Hindus, the findings of the N.E.S. Survey (National Elections Study Survey) indicate hardly any difference in the level of economic prosperity among people from the two communities”, which fully supported the submissions made by the petitioners in their Memoranda. Another important conclusion highlighted in the Seminar Paper of Shri Sanjay Kumar was that “at the national level the proportion of those who would fall in very poor class is more among Hindus compared to the Muslims”. (A Summary of Shri Sanjay Kumar’s Paper is appended as Annexure ‘A’). The malafide intent of the Committee is evident from the fact that it decided to shut out the politically inconvenient truth, including the important data and material facts highlighted in our Memoranda and those highlighted in the Seminar Paper of Prof. Sanjay Kumar on September 2, 2006, during an important seminar on the subject. After inviting representations through advertisements in newspapers, the Committee adopted a peculiarly crafted partisan method of inquiry by resorting to picking and considering only politically convenient representations, thereby wantonly infringing the fundamental rights guaranteed to the petitioners under Articles 14, 15, 16, 21 and 25 of the Constitution. The partisan procedure adopted by the Committee was violative of the principle of natural justice in the sense that repetitive requests of the petitioners for a personal hearing were deliberately ignored by the Chairperson who invariably found enough time for meeting a number of groups and individuals, including some who had made no written submission. One such instance was the audience granted to Shri S.S. Gill (a retired civil servant just like many members of our Thinktank), as mentioned by Shri Gill in an article which appeared in the Times of India , New Delhi, on January 23, 2007, though he had made no written submission to Sachar Committee. There could be no rationale for handing down such discriminatory treatment to the petitioners, especially after a written assurance to consider their viewpoint had been given by the Committee’s Officer on Special Duty. The deliberate denial of opportunity to be heard, coupled with completely shutting out from their Report the data about important human development indicators furnished by the petitioners, shows that the report of the High Level Committee is biased and arbitrary. It is based on partisan considerations and abounds in a number of instances of suppresio veri, suggestio falsi, duly pointed out in the Rejoinder issued by our Thinktank, a copy of which was sent to Justice (Retd) Rajindar Sachar on January 29, 2007, seeking his clarifications and response and copies thereof were endorsed to the Hon’ble Prime Minister, the Minster for Minority Affairs, the Home Minister and several other government functionaries. Till date no reply has been received from any quarter to the aforesaid Rejoinder issued by the petitioners. Throughout the inquiry the Committee continued to function and act in an arbitrary manner, though after inviting representations through public advertisement it was duty bound to consider all representations and hear the relevant oral submissions of those who had responded to its advertisements. The Committee did not extend even the elementary courtesy of acknowledging the numerous reminders of lesser mortals like us, leave alone the hope of sparing a thought for truth. By giving audience only to selectively chosen partisan groups and individuals, the Committee not only violated the principle of natural justice, but also denied to the petitioners the right to equality and fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution. In doing so the Committee acted in a manner prejudicial to the public interest despite this Hon’ble Court’s mandatory directions in Sarla Mudgal Vs. the Union of India 1995 (3) SCC 365 and National Textile Workers Union Vs. P.R. Rama Kishnan 1983(1) SCC 228. The gross bias and pre-determined mindset of the Committee is fully reflected in two partisan postures namely, (i) the procedural flaw of deliberately shutting out certain politically inconvenient representations and true facts, and (ii) unfairly denying an opportunity to be heard to a group comprising educated and enlightened citizens many of whom had held important positions of responsibility in public life, and that too, after giving a written assurance to consider their viewpoint. We, therefore, submit that the Sachar Committee Report, containing several instances of suppressio veri, suggestion falsi, cannot be deemed to be a just and objective document, fit to be relied upon by the government and the general public. Looking to its patently biased contents, the petitioners have no alternative remedy available except to seek intervention of this Hon’ble Court for upholding their fundamental rights and the time-honoured principle of natural justice. In recent months sob stories about the so-called socio-economic backwardness of Muslims, based on the Sachar Committee Report, have been making waves in the mainstream English media, both print media and T V channels. Interestingly when I asked some voluble minority-centric journalists whether they had read the Sachar Report, they admitted that they hadn’t. Some even admitted that they had written banner headline stories solely relying on whatever material was dished out to them by members of the Committee, especially by Dr. Abu Saleh Sharrif, who happens to be the Chief Economist of N C A E R, and was Member Secretary of Sachar Committee. Many confessed that they had not paid attention to, nor read the Rejoinder issued by our Thinktank, Patriots Forum, highlighting the fact that Sachar Report abounds in innumerable instances of suppressio veri, suggestio falsi. For reasons best known to Justice Sachar and Member Secretary of the Committee the report has deliberately concealed several important facts. For reasons not altogether inscrutable, it took recourse to shutting out important data provided by our Forum in two Memoranda submitted to the Committee on October 26, 2005 and May 18, 2006.

In the aforesaid facts-and-data packed Memoranda it was specifically brought to the notice of the High Level Committee that in respect of four globally recognised important human development indicators, namely, Infant Mortality, Child Mortality, Degree of Urbanisation and Life Expectancy at Birth, the Muslim community is certainly ahead of the Hindus.

It was further pointed out that the major causes of the lower per capita income of Muslims (often tom-tomed as the so-called backwardness of the community) are two. First, due to non-acceptance of small family norm, every Muslim woman is giving birth to at least one more child than her Hindu counterpart which increases the dependency burden on the breadwinners and households. [Source: National Family Health Survey –2 and Census 2001 data}. Second, the work participation by Muslim women is 50% less than that of the Hindu and Christian women, the respective ratios being 14.1% for Muslim women as against 27.5% for Hindu women and 28% for Christian women. [Source: Census 2001]. These are two major factors impacting the income of Muslim households. The per capita income of Muslims naturally goes down because of higher dependency ratio vis a vis other communities.

The abnormally low work participation by Muslim women (due to the diktats of clerics and religious scholars) gives an unrealistic slant to the data about the proportion of unemployment (or employment) because the total unemployment level (or employment level) of a community is arrived at by averaging the sum total of the male and female unemployment. These important facts and the relevant data highlighted in our Memoranda have been totally concealed in an inelegant manner by the High Level Committee in their report. Reasons are not difficult to guess – ours is essentially a vote-bank besotted polity.

Most importantly the Committee has deliberately downplayed the huge advantage accruing to the Muslim community by virtue of their higher degree of urbanization, the community having a whopping advantage of 10 percent over the Hindus, the respective averages being 36% for Muslims and 26% for Hindus. According to the economic theory, urbanization is not only an important barometer of economic prosperity, but the vital key to speedy development of any country or community. Goldman Sachs, a globally acclaimed professional group of economists, have highlighted the importance of urbanization in their Global Economics Paper No. 152 (India’s Rising Growth Potential) by pointing out that every movement of surplus labour from low-productivity agriculture to high productivity industry and services contributes about 1 percentage point to annual GDP growth because in India “productivity in industry and services is more than 4 times that in agriculture which employs nearly 60% of the labour force”. The report draws pointed attention to the fact that South Korea has a high urban population of 81 percent, Malayasia 67 percent, China 43 percent, while India has only 29 percent population living in urban areas. There is a very powerful link between the degree of urbanization and economic prosperity of a community, or country. The more urbanized is a community, better is its economic status. The Goldman Sachs Report proclaims on page 18 that “the 21st century is set to become India’s ‘urban century’, with more people living in cities and towns than in the countryside for the first time in history”. It estimates that another “140 million rural dwellers will move to urban areas by 2020, while a massive 700 million people will urbanize by 2050.” It requires no great wisdom to assess which community, the Muslims or the Hindus, is presently better placed economically and well set on the future road to greater prosperity. Obviously, the Muslims have a huge advantage over the Hindus in terms of economic prosperity and economic development. The Member Secretary of the Committee, Dr. Abu Saleh Sharrif, who happens to be the Chief Economist of the National Council of Applied Economic Research, is fully aware of the truth that urbanization is the biggest driver of economic development and prosperity. But he deliberately chose to suppress this important fact, highlighted in our Memoranda, for reasons best known to him. The Muslim percentage of urbanization at 36% is barely 7 percentage points behind that of fast developing China, while the Hindu percentage of urbanization languishing at 26% is not only 10% short of the Muslim average, but is lagging behind China by a huge margin of 17 percentage points. What better proof is required to prove that economically the Hindus are far more disadvantaged than the Muslims? And they will continue to be far behind Muslims during several decades ahead!

The fact that there is hardly any difference in the economic status of Hindus and Muslims was further corroborated by the results of a recent N.C.A.E.R. survey covering 63,000 households, spread over 1,976 villages, 250 district and 2,255 urban wards (342 towns), conducted by the Senior Fellow, Rajesh Shukla, which gave a direct lie to the flawed findings of Justice Sachar Committee.[Source: A news item captioned Hindu, Muslim equal in income’ Economic Times, New Delhi, April 5, 2007, pp. 1 and 12].

Incidentally the Member Secretary of Sachar Committee, Dr. Sharrif, who unabashedly concealed the truth while writing that obfuscator report, as well as Rajesh Shukla, whose research disclosed that the economic condition of Hindus and Muslims was almost at par, belong to the same organization, namely the National Council of Applied Economic Research ! Well, that should be a matter of concern to the Indian nation, perhaps much more to the National Council of Economic Research.

Furthermore, though para 2(a) of the Notification dated March 9, 2005, specifically directed the Committee to undertake “an intensive literature survey to identify the published data, articles and research on relative social, economic and educational status of Muslims in India”, apparently the Committee did not undertake any such survey. In fact, the Committee deliberately ignored the two facts-and data-packed research papers presented in a Workshop-cum-Seminar on the subject held on September 2, 2006, at the prestigious Indian Institute of Public Administration which comprehensively rebutted the Committee’ pre-conceived thesis that Muslims were economically and educationally disadvantaged compared to Hindus. One of the Papers, circulated by Prof. Sanjay Kumar (Fellow, Centre for Study of Developing Studies), based on a survey of more than 27,000 respondents, categorically stated that “there is hardly any difference among the level of educational attainments among Hindus and Muslims”. It further concluded that “contrary to the common belief that Muslims are poorer compared to the Hindus, the findings of the N.E.S. Survey (National Elections Study Survey) indicate hardly any difference in the level of economic prosperity among people from the two communities”, which fully supported the submissions made by the petitioners in their Memoranda. Another important conclusion highlighted in the Seminar Paper of Shri Sanjay Kumar was that “at the national level the proportion of those who would fall in very poor class is more among Hindus compared to the Muslims”. (A Summary of Shri Sanjay Kumar’s Paper is appended as Annexure ‘A’). The malafide intent of the Committee is evident from the fact that it decided to shut out the politically inconvenient truth, including the important data and material facts highlighted in our Memoranda and those highlighted in the Seminar Paper of Prof. Sanjay Kumar on September 2, 2006, during an important seminar on the subject.

After inviting representations through advertisements in newspapers, the Committee adopted a peculiarly crafted partisan method of inquiry by resorting to picking and considering only politically convenient representations, thereby wantonly infringing the fundamental rights guaranteed to the petitioners under Articles 14, 15, 16, 21 and 25 of the Constitution. The partisan procedure adopted by the Committee was violative of the principle of natural justice in the sense that repetitive requests of the petitioners for a personal hearing were deliberately ignored by the Chairperson who invariably found enough time for meeting a number of groups and individuals, including some who had made no written submission. One such instance was the audience granted to Shri S.S. Gill (a retired civil servant just like many members of our Thinktank), as mentioned by Shri Gill in an article which appeared in the Times of India , New Delhi, on January 23, 2007, though he had made no written submission to Sachar Committee. There could be no rationale for handing down such discriminatory treatment to the petitioners, especially after a written assurance to consider their viewpoint had been given by the Committee’s Officer on Special Duty. The deliberate denial of opportunity to be heard, coupled with completely shutting out from their Report the data about important human development indicators furnished by the petitioners, shows that the report of the High Level Committee is biased and arbitrary. It is based on partisan considerations and abounds in a number of instances of suppresio veri, suggestio falsi, duly pointed out in the Rejoinder issued by our Thinktank, a copy of which was sent to Justice (Retd) Rajindar Sachar on January 29, 2007, seeking his clarifications and response and copies thereof were endorsed to the Hon’ble Prime Minister, the Minster for Minority Affairs, the Home Minister and several other government functionaries. Till date no reply has been received from any quarter to the aforesaid Rejoinder issued by the petitioners.

Throughout the inquiry the Committee continued to function and act in an arbitrary manner, though after inviting representations through public advertisement it was duty bound to consider all representations and hear the relevant oral submissions of those who had responded to its advertisements. The Committee did not extend even the elementary courtesy of acknowledging the numerous reminders of lesser mortals like us, leave alone the hope of sparing a thought for truth. By giving audience only to selectively chosen partisan groups and individuals, the Committee not only violated the principle of natural justice, but also denied to the petitioners the right to equality and fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution. In doing so the Committee acted in a manner prejudicial to the public interest despite this Hon’ble Court’s mandatory directions in Sarla Mudgal Vs. the Union of India 1995 (3) SCC 365 and National Textile Workers Union Vs. P.R. Rama Kishnan 1983(1) SCC 228.

The gross bias and pre-determined mindset of the Committee is fully reflected in two partisan postures namely, (i) the procedural flaw of deliberately shutting out certain politically inconvenient representations and true facts, and (ii) unfairly denying an opportunity to be heard to a group comprising educated and enlightened citizens many of whom had held important positions of responsibility in public life, and that too, after giving a written assurance to consider their viewpoint. We, therefore, submit that the Sachar Committee Report, containing several instances of suppressio veri, suggestion falsi, cannot be deemed to be a just and objective document, fit to be relied upon by the government and the general public. Looking to its patently biased contents, the petitioners have no alternative remedy available except to seek intervention of this Hon’ble Court for upholding their fundamental rights and the time-honoured principle of natural justice.

]]> By: Yogesh Kumar Saxena, Advocate http://samsonblinded.org/blog/lawyers-are-nicer-than-sharks.htm/comment-page-1#comment-75954 Yogesh Kumar Saxena, Advocate Mon, 07 Jan 2008 17:15:09 +0000 http://samsonblinded.org/blog/lawyers-are-nicer-than-sharks_293.htm#comment-75954 Rule of Law ‘Rule of Law’ does not mean the governance of the system, which is based upon the utopian sovereignty. ‘We, the people’ does not mean the representative of the people in democratic parliamentary system of governance of our citizen by the beauraucratic supremacy of power. The purpose of parliamentarian is to premalgate the legislature, which does not mean the preuliage orientation. Every institution of the democratic system is meant to serve the need of the citizen, instead of ruling upon the prurliage without fulfillment of the concomittment of its obligation towards them. The right and duty is correlated as represent two sides of a coin. There is no one superior than the statutory power. However, the present scenario of all the three organs in our so called parliamentary system of representation and indirect representation for choosing the president of our country and to make the governance of the politician occupying the offices as the head of the government is nothing but an anarchy created by so many despotic monarchs which is worst then the slavery of the citizens of our nation. Let us have introspection upon the prevailing melodies resulting in deterioration of every norms of a civilized society. Why the parliamentarian attack accused suspected to be mastermind of the assassination of our democracy has been acquitted in absence of any evidenced? Whether the conversation made by such accused namely Jilane would not have been preserved to be the evidence under the provisions of the Evidence Act? Whether the conversation made by Jilani to the assistance using automates and semi-automatic weapons within the premises of parliament were not sufficient to punish the mastermind of the crime? Whether the electro magnetic filed converting the transmission in the visual expression and in conversations without recording the actual wording of the conversation may not lead the presumption of the guilt for imposing punishment? Why we repelled enactment of Tata and POTA only on the protest of the antler national citizens? Why not common civil law is applicable and there is no demand for separate criminal law according to the sehiriat by the Muslims which is based on retributive theory of punishment and the detrend measurement of conversion? Can anyone may justify the Fatwa issued against an individual living in Denmark and the follower of Christian religion may not have his Rights of Expression for making cartoons of any individual? Why Hazi-Yaku is issuing the warrant of death sentence to such cartoonists in India and thereby terrorizing the people of other religions namely the catholic, presidents, I witness Hindus, Parsi People? Whether issuance of Fatwa by Muslims and the call to boycott the President of America George W. Bush is a secular character? Why minister of Awas namely Azam Khan speaks of the utterance by saying Hindu, Hindi and Hindustani as traitors in our nation? Why subsidy is provided from the Income Tax of Hindus to the Hajj pilgrimage where 5 thousand cows, thousands camels and 20 thousand sheep are slaughtered everyday by the butchers in an organized manner? Who is Kafir and Kufr, killing of which is Jehad and the suicide Jehadi may be awarded with Nishamat and Hurrein? Even we may call it as a secular welfare state to our nation. We may feel proud by killing Jessua Lal by Manu Sharma and V.Yadav the sons of Hary and minishter and D.P. Yadav and get them acquitted of the charge of murder upon them in the absence of any evidence. If in retaliation of Godra killing by the Muslims, the riots strickal places have some incidence of anson in which about 900 muslims and 600 Hindus were killed, these shall be the retrial just to enquire the killing of Muslims and that too outside the state of Gujrat in Maharashtra what was wrong with Narendra Modi as the Chief Minister when the riots in representations of Godra gone aside were taking place at Gujrat, then issuance of Fatwa by minister Haji Yaku and terroristing the citizens from the terror of Islam at Hajratganj Lucknow and no one has blamed Mulayam Singh Yadav as communal? Whether Lalu Prasad Yadav conducting the illegal evquiry by appointing justice U.C. Banerjee the retired judge of supreme court as an enquiry commission and getting a report that Godra massacre by burning the Ram Bhakt returning from Ayodhaya was a mere accidental fire and not a carnage? Why the Chief Justice of Patna High Court Justice B.M.Lal recommended for the use of Army personnel to get the enforcement of the Hon’ble Court’s order as the police is defunged to arrest the politicians? Whether the call of Shasbuddin that if the D.G.P. has the courage to arrest me, then arrests me. I am sitting at my home? Why Pappu Yadav could not be arrested in the State of Bihar till intervention by the Supreme Court? How does Atique Ahmed could have come out from prison just after the resume of Mayawati during Mylayam Singh period, when there are 76 cases of murder against him and he himself being avoided from being released from jail? Why Raja Bhaiya, his brother Gopal Ji and his father were released from the charge of POTA as the skulls of the human body and 30 carvive vertic reserved from their palace, were the crocodiles are natured through the flesh of human beings? Being the rival of Raja Bhaiya whether the call of Atique Ahmed not to fight the elections of MLA chile to Raju Pal otherwise in case of his win from BSP ticket, there will be the by-election within 6 months and killing of Raju Pal, the defeat of Puja Pal by demonstration of the muscle power and ultimate of Mohd. Aslam from the said crime is the rule of law in the society? Whether the hosting of the tri-colour flag of our nation at Idgaj by Uma Bharti at Karnataka my oust her from Chief Ministership and still we may call it a nation. There were 30 madrassas now they are 96 thousand and about 1 crore 20 lakh people have migrated from Bangladesh to get the conversion of our nation in Islamic nation? Why we may not remember the period offering king Daler’s minor daughter to Mohd. Bin Qasim in 7th century and the repition of the same thing in our nation? Why the politicians are worried about the percentage of Muslims in recruitment or armed forces and still then we may not say that Islam is a crime and the people of our country are the slave of the system of our governance, Our parliamentarian democracy is a framed in which accused, and traitors are spared and innocents are punished unnecessarily. Rule of Law

‘Rule of Law’ does not mean the governance of the system, which is based upon the utopian sovereignty. ‘We, the people’ does not mean the representative of the people in democratic parliamentary system of governance of our citizen by the beauraucratic supremacy of power. The purpose of parliamentarian is to premalgate the legislature, which does not mean the preuliage orientation. Every institution of the democratic system is meant to serve the need of the citizen, instead of ruling upon the prurliage without fulfillment of the concomittment of its obligation towards them. The right and duty is correlated as represent two sides of a coin. There is no one superior than the statutory power. However, the present scenario of all the three organs in our so called parliamentary system of representation and indirect representation for choosing the president of our country and to make the governance of the politician occupying the offices as the head of the government is nothing but an anarchy created by so many despotic monarchs which is worst then the slavery of the citizens of our nation. Let us have introspection upon the prevailing melodies resulting in deterioration of every norms of a civilized society. Why the parliamentarian attack accused suspected to be mastermind of the assassination of our democracy has been acquitted in absence of any evidenced? Whether the conversation made by such accused namely Jilane would not have been preserved to be the evidence under the provisions of the Evidence Act? Whether the conversation made by Jilani to the assistance using automates and semi-automatic weapons within the premises of parliament were not sufficient to punish the mastermind of the crime? Whether the electro magnetic filed converting the transmission in the visual expression and in conversations without recording the actual wording of the conversation may not lead the presumption of the guilt for imposing punishment? Why we repelled enactment of Tata and POTA only on the protest of the antler national citizens? Why not common civil law is applicable and there is no demand for separate criminal law according to the sehiriat by the Muslims which is based on retributive theory of punishment and the detrend measurement of conversion? Can anyone may justify the Fatwa issued against an individual living in Denmark and the follower of Christian religion may not have his Rights of Expression for making cartoons of any individual? Why Hazi-Yaku is issuing the warrant of death sentence to such cartoonists in India and thereby terrorizing the people of other religions namely the catholic, presidents,
I witness Hindus, Parsi People? Whether issuance of Fatwa by Muslims and the call to boycott the President of America George W. Bush is a secular character? Why minister of Awas namely Azam Khan speaks of the utterance by saying Hindu, Hindi and Hindustani as traitors in our nation? Why subsidy is provided from the Income Tax of Hindus to the Hajj pilgrimage where 5 thousand cows, thousands camels and 20 thousand sheep are slaughtered everyday by the butchers in an organized manner? Who is Kafir and Kufr, killing of which is Jehad and the suicide Jehadi may be awarded with Nishamat and Hurrein? Even we may call it as a secular welfare state to our nation. We may feel proud by killing Jessua Lal by Manu Sharma and V.Yadav the sons of Hary and minishter and D.P. Yadav and get them acquitted of the charge of murder upon them in the absence of any evidence. If in retaliation of Godra killing by the Muslims, the riots strickal places have some incidence of anson in which about 900 muslims and 600 Hindus were killed, these shall be the retrial just to enquire the killing of Muslims and that too outside the state of Gujrat in Maharashtra what was wrong with Narendra Modi as the Chief Minister when the riots in representations of Godra gone aside were taking place at Gujrat, then issuance of Fatwa by minister Haji Yaku and terroristing the citizens from the terror of Islam at Hajratganj Lucknow and no one has blamed Mulayam Singh Yadav as communal? Whether Lalu Prasad Yadav conducting the illegal evquiry by appointing justice U.C. Banerjee the retired judge of supreme court as an enquiry commission and getting a report that Godra massacre by burning the Ram Bhakt returning from Ayodhaya was a mere accidental fire and not a carnage? Why the Chief Justice of Patna High Court Justice B.M.Lal recommended for the use of Army personnel to get the enforcement of the Hon’ble Court’s order as the police is defunged to arrest the politicians? Whether the call of Shasbuddin that if the D.G.P. has the courage to arrest me, then arrests me. I am sitting at my home? Why Pappu Yadav could not be arrested in the State of Bihar till intervention by the Supreme Court? How does Atique Ahmed could have come out from prison just after the resume of Mayawati during Mylayam Singh period, when there are 76 cases of murder against him and he himself being avoided from being released from jail? Why Raja Bhaiya, his brother Gopal Ji and his father were released from the charge of POTA as the skulls of the human body and 30 carvive vertic reserved from their palace, were the crocodiles are natured through the flesh of human beings? Being the rival of Raja Bhaiya whether the call of Atique Ahmed not to fight the elections of MLA chile to Raju Pal otherwise in case of his win from BSP ticket, there will be the by-election within 6 months and killing of Raju Pal, the defeat of Puja Pal by demonstration of the muscle power and ultimate of Mohd. Aslam from the said crime is the rule of law in the society? Whether the hosting of the tri-colour flag of our nation at Idgaj by Uma Bharti at Karnataka my oust her from Chief Ministership and still we may call it a nation. There were 30 madrassas now they are 96 thousand and about 1 crore 20 lakh people have migrated from Bangladesh to get the conversion of our nation in Islamic nation? Why we may not remember the period offering king Daler’s minor daughter to Mohd. Bin Qasim in 7th century and the repition of the same thing in our nation? Why the politicians are worried about the percentage of Muslims in recruitment or armed forces and still then we may not say that Islam is a crime and the people of our country are the slave of the system of our governance, Our parliamentarian democracy is a framed in which accused, and traitors are spared and innocents are punished unnecessarily.

]]> By: Yogesh Kumar Saxena, Advocate http://samsonblinded.org/blog/lawyers-are-nicer-than-sharks.htm/comment-page-1#comment-75952 Yogesh Kumar Saxena, Advocate Mon, 07 Jan 2008 17:12:39 +0000 http://samsonblinded.org/blog/lawyers-are-nicer-than-sharks_293.htm#comment-75952 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. 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.

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