My Lord Hon'ble Mr. Justice Markandey Katju, Judge of Hon'ble Supreme court of India on judicial activism has promulgated a proposition based upon the sepration of power amongest three organ of democratic foundation. Unfortunately the chapter III of enumerating Fundamental Rights are couched in negative language, as they adhere to the reciprocal obligation of the performance of co-related Duty upon the executive fuctionary of the State. Article 19 is framed in positive language. It has the self restrictions imposed under sub article 2 to 6. Thus if the judiciary will not get the judicial accountability of administration action, the foundation of Rule of Law in the society shal be eroded by having the subjugation and abrogation of the protection grated to our citizen, being "we.the people". Hon'ble Justice Markandey Katju on other aspect of dealing with the power exercised under Contempt of Court Act by the constitutional courts has taken"we. the People" as the sovereign of Soreign,. Thus the opinion of Justice Katju is incompatible and unrealistic according to the norms estabished by his lordship's on these two counts all together. It is requested to have the introspection of the opinion and have an other side of picture being taken into account on realistic treand of the society.
My Lord Hon'ble Mr. Justice Markandey Katju, Judge of Hon'ble Supreme Court of India on the subject of judicial activism has promulgated a proposition based upon the Sepration of Power amongest three organs of Democratic foundation. Unfortunately, the chapter III of our Constitution of India are enumerating the Chapter of Fundamental Rights. Most of the Articles including Articles 14, 16, 21 are couched in negative language, as they adhere to the reciprocal obligation of the performance of co-related duty upon the executive fuctionary of the State. Article 19 of Constitution is framed in positive language. It has the self imposed restrictions under it's Sub Article No's 2 to 6. Thus if the judiciary will not get the judicial review in accountability(i.e.,of decision making process) of administration action, the foundations of Rule of Law in the society shall be eroded. It may result in having the subjugation and abrogation of the protection granted to our citizen.Every citizen according to justice Katju, on a different proposition is being regarded as "we.the people". Since Hon'ble Justice Markandey Katju on other aspect of matter in dealing with the power exercised under Contempt of Court Act by the constitutional courts has taken into account "we. the People" as the sovereign of Sovereigns. Thus the opinion of Justice Katju is incompatible and quite unrealistic according to the norms estabished by his lordship's on these two counts all together. It is requested to have the introspection of the opinion and have an other side of picture being taken into account on realistic treand of our society.
My Lord Hon'ble Mr. Justice Markandey Katju, Judge of Hon'ble Supreme Court of India on the subject of judicial activism has promulgated a proposition based upon the Sepration of Power amongest three organs of Democratic foundation I send my first article typed myself with the threat of electricity failure, and as such, there remained the typographical errors, which I rectified second article. I tender my unconditional appologies to his lordship for inconvinience, if the previous article was percieved by my lord. In coninuity of my expression,"Legal institution and justice" is the name and title of this article. "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.
“Here is not to make reply; Here is not to reason why; Here is only do and die.”
In my childhood, my teacher taught me in the classroom that “What ever you do; Do with your might; that is the way to be healthy, wealthy, and wise”. Subsequently, there after my father told me just few months before his death when I completed my 18 years of age that “Thou thy path be dark as sky; There is a star thy path to guide, So trust in god and do the right “. By the gradual process of up and downs in my life, I could have been able to learn through my experiences that what we may be able to get through the grace of god are not the scattered love, nor the success and wealth but the knowledge. Thus I have started worshipping the almighty with the following prayer. “O, gods to thee I pray, increase my knowledge day by day”. It is only now after attending the respect amongst the members of the Bar and Bench that I have started thinking that all these notions in my life are based on the correct foundations. This is my firm determination that what ever I may be able to achieve in my life that will be dependent on the out come of my efforts on these guidelines and none else. Notwithstanding, there are the fluctuations in the formation of these notions, which provides me a sense of mental agony, frustration and disappointments in life. There is the profound bleeding at my heart on the psychologically region which seldom gives me an effect of chafing of the wound before it can be healed. This is the painful reminder of the lost empire, which was built on solid foundation. It is gradually obliterating.
It is fundamental that if rule of law is to have any meaning and content, the authority of the court or a statutory authority and the confidence of the public in them should not be allowed to be shaken, diluted or undermined. The courts of justice and all tribunals exercising judicial functions from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice. It is that expectation and confidence of all those, who have or are likely to have business in that court or tribunal, which should be maintained so that the court/tribunal perform all their functions on a higher level of rectitude without fear or favour, affection or ill-will.
This is the common experience that the simplicity in the way of life is the condition to attend the peace of mind. The notion of the peaceful co-existence is dependent upon so many factors of life. The realization of privileges to an individual is the beginning of the desire. This may lead to bondage. Attraction and repulsion are rooted in all sense –objects. The pleasure, which is based on sense-enjoyment at the cost of other innocent sufferings, may never provide the peace in the life. Thus if I refuse to fight the righteous war in order to get rid over the prevailing maladies, I may be committing and thereby incur the sin In the process.
A lawyer owes a duty to be fair to his client, but also to the court as well as to the opposite party in the conduct of the case. Administration of justice is a stream, which has to be kept pure and clean. It has to be kept unpolluted. Administration of justice is not something, which concerns the Bench only. It concerns the Bar as well. The Bar is the principal ground for recruiting Judges. No one should be able to raise a finger about the conduct of a lawyer. While conducting the case he functions as an officer of the court.
The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other profession in that what the lawyers do affects not only an individual, but also the administration of justice, which is the foundation of the civilized society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior”. If the profession is to survive, the judicial system has to be vitalized. No service will be too small in making the system efficient, effective and credible”
. The extraordinary complexity of modern litigation requires him not merely to declare the rights to citizens. It also requires to mould the relief warranted under given facts and circumstances and often command the executive and other agencies to enforce and give effect to the order, writ or direction or prohibit them to do unconstitutional acts. In this ongoing complex of adjudicatory process, the role of the judge is not merely to interpret the law .It is also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality…. The society demands active judicial roles, which formerly were considered exceptional but now a routine. The Judge must act independently, if he is to perform the functions as expected of him and he must feel secure that such action of his will not lead to his own downfall”.
The just and social duty is cast upon the legal profession. This is possible by the conduct and action of the people associated with legal profession by obliterating the inequalities as uneducated and exploited mass of the people may get a helping hand. What is legally due is to serve the duty and it is not worthwhile for an Advocate to become the spokesman of the litigant irrespective of the fact whether his cause is meant for sponsoring the justice to the society at large. The conduct anticipated in this manner is befitting from his status by upholding the high and honorable profession. There are the high expectations from the advocate, which is fair, reasonable and according to law.
There is the gradual decay of the above noted standard and the participation in the legal process, which should have been conducted completely flawlessly, and foolproof, they are picking out the lapses by expressing unsavory criticism. The consistency is now been considered as no virtue and the obligation of judicial conscience, which was meant to correct the error is manifesting like uncontrolled epidemic. This is the reason why the legal profession is not been accepted as a noble profession.
The proceedings are dependent upon the remedies available under the law. Every act of statutory body that must have been exercised by keeping the purpose and objective meant for enshrines the statutory power. The authority should have been exercised by keeping the object of such power that is meant by the statute and not with other extraneous consideration, otherwise the fraud will be perpetuated and the faith and belief shall not be subjected to any judicial scrutiny. Thus an accountability is must whenever as wrong is corrected. Some time in such matter of adjudicating without any valid cause, the court unwittingly becomes party to the miscarriage of justice. The judiciary is an ultimate interpreter of the constitution, which is assigned with a duty of the delicate task ensuring that the action of the authorities vested with the statutory power may not breach or transgress its limit.
It is distressing that an unscrupulous litigant in order to circumvent the due administration of justice of the court seldom found by adopting a dubious recourse of ingenious methods. These includes the filing of fraudulent litigation to defeat the right of the other person and such tendency deserves to be curbed out by passing the appropriate orders to provide a check upon such unhealthy practice and also by issuing necessary directions including imposition of exemplary cost. This is required for strengthening the belief of the common man in the institution of the judiciary. Creation of such faith may result in reaching the excellence in the profession.
The credibility of the judicial institution is founded upon the faith of the common man in its proper functioning. The faith would be eroded and the confidence destroyed if the officials deployed with statutory duties may start acting subjectively and not objectively. Society expects honesty and integrity and thus the official must be taught to act fairly, unbiased and impartially. The purpose of the court is to see that the society does not loose confidence and as such the court itself may not consider themselves that they are above the law. In appropriate cases even the court may find to pull down the shutters of adjudicatory jurisdiction before a party if his conduct is not subjected to be entertained against the so called grievances which is not genuine. The exercise of judicial discretion is founded on the well-recognized principles established by law. The menace of frivolous litigation may not be permitted to be hidden under the rigmarole of legal technicalities. The realities of the life have to be kept in mind while appreciating the evidence. The court is not obliged to make efforts to protect the guilty of polluting society and mankind. Thus in exercise of the constitutional power of the High court, the endeavor should have not been given for impairing the cause of justice by the court itself. The legal profession of an advocate is certainly having certain professional obligation, which are distinguishing from the business commitments. Thus if the court may not participate in the activities of providing justice at large, it is not permissible to get the injustice permitted by it by entertaining the frivolous litigation and to make them burden some to a common people.
Rectification of an order thus stems from the fundamental principal that justice is above all. It is exercised to remove the error and not for disturbing finality. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in administrative law as in public law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the court finds that the order was passed under a mistake it would not have exercised the jurisdiction. The erroneous assumption, which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid to recall an order.
The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice and as such no action can be permitted which may shake the very foundation itself. The rule of law is the foundation of a democratic society. The judiciary is the guardian of the rule of law and if the judiciary is to perform its duties and functions effectively and remain true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts has to be respected and protected at all costs. Secure that such action of his will not lead to his own downfall”. Justice is a virtue, which transcends all barriers in the way of administration of justice. This is the acknowledged position of law that no party can be forced to suffer for the inaction or omission on the part of law enforcement agencies and whosoever he may be strong, every decision will be passed according to the procedure established by law. Thus the law has to bend before justice. No court can restore the broken heart of the justice and he should provide such protection, which is necessary for them like dutiful parents. The decision may not be repugnant to the normal concept and the basic unit of the society may not be allowed to be influenced by immorality. Thus the ultimate responsibility is by enunciating the foundation of a system on which administration of justice may get the public confidence in our judicial system.
Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion required to exercise has to be in accordance with law and set legal principles. Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by ant member thereof.
Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities that do not occasion failure of justice are not allowed defeating the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They can not be perverted to achieve the very opposite end. That would be a counter-productive exercise. Law is a living organism and its utility depends on its vitality and ability to serve as sustaining pillar of society. Contours of law in an evolving society must constantly keep changing as civilization and culture advances. The customs and mores must undergo change with the march of time. Justice to the individual is one of the highest interests of the democratic State. Judiciary can not protect the interests of the common man unless it would redefine the protections of the constitution and the common law. If law is to adapt itself to the needs of the changing society, it must be flexible and adaptable. Law is a social engineering and an instrument of social change evolved by a gradual and continuous process. History and customs, utility and the accepted standards of right conduct are the dorms which singly or is combination shall be the progress of law. Law is the manifestation of principles of justice, equity and good conscience. Rule of law should establish a uniform pattern for harmonious existence in a society where every individual would exercise his rights to his best advantage to achieve excellence, subject to protective discrimination. The best advantage of one person could be the worst disadvantage to another. Law steps ion to iron out such creases and ensures equality of protection to individuals as well as group liberties. Man’s status is a creature of substantive as well as procedural law to which legal incidents would attach. Justice, equality and fraternity are trinity for social and economic equality. Law is the foundation on which the potential of the society stands. Law is an instrument for social change as also defender for social change.
The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional schemes. There may not be any occasion to entertain misgivings about the role of judiciary in outstripping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set-up to which the policy is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective fields. When the misuse is within tolerable limits, no uproar is heard, no media publication is seen. But when the magnitude of misuse assumes a menacing proportion, outburst of various types becomes noticeable and then a scam surfaces. The Judges are participants in the living stream of national life, steering the law between the dangers of rigidity on the one and formlessness on the other hand in the seemless web of life. The great tides and currents which engulf the rest of the men do not turn aside in their course and pass the judges idly by law should sub serve social purpose. Judge must be a jurist endowed with the legislator’s wisdom, historian’s search for truth, prophet’s vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the constitution and the Act with its interpretative armory to articulate the felt necessities of the time. The judge must also bear in mind that social legislation is not a document for fastidious dialects but a means of ordering the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable of expanding freedom of the people and the legal order can, weighed with utmost equal care, be made to provide the underpinning of the highly inequitable social order. The power of judicial review must, therefore, be exercised with insight into social values to supplement the changing social needs. The Judge can not retain his earlier passive judicial role when he administers the law under the Constitution to give effect to the constitutional ideals.
Unique manifestation
Thy eyes are reflected; In praise of greatness; With unique manifestation; The song of scripture; Which sing by celestial; And also by terrestrial; By every human being; To fathom the mystery; But just to describe it; Must first be nectar thy;
Life is a shylock; always it demands. The fullest usurer’s interests for each pleasure Gifts are not freely scattered by its hand. We made returns for every borrowed treasurer. Each talent, each achievement and every gain me necessitated some penalty to pay. All you bestow on causes or on men of love or hate of malice or devotion somehow and sometime shall be returned again. This was the lesson in my life. There is no waste toil, no lost emotion. The motto of the world is to give and take. It gives you favour out of sheer goodwill but unless a speedy recompense you make you will find yourself presented with its bill". "Competition is a struggle for existence because there is always be survival of the fittest". "Every Act and every inquiry and similarly every action and pursuit, given by him was thought to aim at some good, and for this reason, the good has rightly been declared, to be that, at which all things aim. But a certain difference is found among ends". For him "For best was he who knows all things himself good, he that hearkens when men counsel right. But he who neither knows, nor lays to heart another wisdom, is a useless night". Seldom I feel that there was some thing wrong with me in association with other, but still I felt difficulty in expressing my resentments. This is difficult to express an opinion as to what is the correct approach; as to whether I should keep silent; or I should react over the situation. It was realised that the best way was to adopt an apathetically behavior toward every situation, but at the same time, I feel that I have lost my identity and in this situation I feel a lot of disturbances. From there I have started my interactions towards the behavior and other associated activities, which was directly or indirectly associated with my life. Shri Shanti Swaroop Bhatnagar has now been departed from this worldly affair to the heavenly abode. He was the king maker and always reacts like lord Krishna to Arjun in solicits the advice to the lawyers. He was very affectionate personality and was always ready to provide guidance to every person associated in legal profession. He used to incite the individual to look into the provision and than only indulge in the discussions. He used to react like boil milk upon the legal discussions by imprudent Advocates. The moment the recipient may become able to understand the issues in discussions, he may become cool. He remained occupied with gatherings of Judges, Advocates and prominent personalities. He was like a guiding light in my life, a reminder that come what may everything is right. His precious advice, right guidance and farsightedness encouraged me through thick and thin moments of life. His stimulating pats on my back, even your harshness at times all only added to inspire me, making me trust you completely as a lifelong companion, which has been grown up special with him in each passing years. The most prominent and remarkable feature in the personality of Shri Bhatnagar is the purity of the mind and inclination to convey his idea with due reluctance. Seldom the people think that they know something but when they start searching for it then they find that it is missing the manner to which they knew. This is the beginning of the legal profession. The greatest virtue in legal profession is to create and enjoy at the same moment. The people do not readily except the superiority of the other intelligent person and as such these people are always remain in controversy. The simple reason of the superiority of Sri Bhatnagar was lying in his brevity of thought and the discussion to the point on the subject. He was a great learner and a great scholar in his contemporary period. He never demanded the respect, but he used to command it from the heart of his associates. I have seen him with tears in his eyes before his clients when he was informed that the family of the client is passing through financial constraint. The pain was apparent and was being chafed again and again before it can heel by his guidance on number of the occasions in my life. I have seen him with tears in his eyes when he came to my residence along with his associates and other colleagues to take the dinner, a few days before his departure for the treatment of his eyes at Apollo Hospital in Delhi. The sentimental breakdown during dinner was in the remittance by remembering his mother who used to prepare the curry that was served to him by my wife during dinner at our residence. I met him last during my visit at his residence on the festival of Holi. He invited me so many times before his death during strike, but I could not spare time to meet him. I did not know that it would be the last meeting at his residence during Holi festival. With regard to Justice and injustice to an individual’s opinion assessments, we must consider the kind of action, it’s means and the justness for considering its effect and solution. Thus the justice is always represent in corresponding sense. I have seen him in association of some advocates who are ideologically antagonistic to his opinion, but from the very inception, a heterogeneous conglomeration of disparate and desperate interests designed mainly hedge against common enemy on both the constituents. There is no one having the perfection, but certainly some of the individuals may have risen to the heights, if they may start thinking in the perfect manner and convey the idea generated through such experiences with the same precision. This is very rare in the life of an individual to have the correct analysis of his perceptions with the desire, aptitude and knowledge in adequate representations.i Shanti Swaroop Bhatnagar was one of the senior Advocate, who has been assigned with the responsibility of representing the State Govt. as an Advocate-General in three consecutive terms with certain break due to political change in the State Govt. The responsibility of discharging the functioning by him as Advocate-General was not due to his political association with the ruling party, but it was on account of his merit, dedication, sincerity, and integrity in discharge of the duties. This was not a manifestation, but the real acknowledgement of the potential of a senior Advocate. There are the reflections of the memories in my mind, when I have seen him conducting the arguments from 1974 onwards. I have started practice after being enrolled as an Advocate in 1974. During the intervening period, since, I was involved in number of problems associated towards my responsibility of supervising 75 Acre agriculture land required to be cultivated, after converting to it’s potential from barren land to profitable agricultural land .The reason for looking after the said land was due to the sudden death of my father in the year of 1971,who died a premature death leaving behind my mother, my elder brother, myself and a younger sister. Since I could not continue my practice at Allahabad & I shifted to District Court due to family responsibilities, I could not see him conducting the argument at High Court for a long duration. This was in year of 1978, when I visited in his chamber for seeking guidance. I have visited in his chamber with a hope that I may get the adequate response, but the response I got was something beyond my expectations. It was initially to discourage me from joining the profession. He said that why a professional in the same profession will like to provide the potential to another rival in the same profession. Thus to rise up to the heights, what the individual may have attended after hard labour and dedications towards his profession, is the hard labour, dedication, sincerity and devotion to study the law. This reply has come forward with another complement that he may not be misunderstood for what he is expressing to myself regarding his inability to guide me. I immediately got the determination that now I will flight for rising up to the tower of success through my own efforts. There were very few Advocates, who can speak such a bitter truth before junior colleagues for giving them a boosting response. To rise through struggle by his own efforts and the individual is not required to have the crutches of other person to provide the support to his body. This was a very valuable advice given Shri Bhatnagar, which has always provided me a lot of confidence and inclination for struggle. This has become the guidelines to provide a contribution in due discharge of the professional responsibility. This was on account of his personality traits having a remarkable combination of predominating characteristics of a prominent Saturn with a cusp of zodiac sign of Capricorn and Aquarius. These personality track fallow in its carving out through experience of adversities else they simply comes through cultivation of opinion and is being stimulated through notional ideology of Isolated doom and perform predominant role in it’s development. This is also a symbol of self-made man personality. There were so many cases, which were argued by Shri Shanti Swaroop Bhatnagar prior to his elevation as an Advocate-General of U.P. I have never missed any opportunity to learn through his potentials to conduct the arguments, whenever I could have been able to listen his arguments .The arguments conducted by Shri Bhatnagar have conveyed the original idea and the strict and correct interpretation of the statutory provisions. It was in the year of 1991, that I got an opportunity to become associated with Shri Bhatnagar for engaging him as a Senior Counsel and from there I have learnt the technique of presentation of the arguments. Even after giving such valuable advice, Shri Bhatnagar had declined to argue in the matter. I could have only realised the standard, which is required for conducting the arguments, but none of the Senior Advocates have provided such a fruitful guidance, which has been given to me by Shri Shanti Swaroop Bhatnagar during my short association with him. I was subsequently informed by him that he has provided the self restrained in conducting the argument, as he wanted to provide me the encouragement and simultaneously wanted to find out my drawbacks tn conducting the arguments. I was subsequently inform by him that he has given me the certificate of approval towards my drafting and presentation of arguments. After the death of his junior Sri Amrish Kumar Sharma and his paralytic stock and the recovery thereof, I came in the close association with Shri Bhatnagar. He was always inclined to guide me, but he used to advice not to indulge in discussion with other advocates on such issues. This was during the period of his becoming as an Advocate-General that once upon a time I visited in his chamber for showing my resentment and protest against the functioning of High Court. It was his advise to leave the profession and to become a social worker or a politician, who can speak in public against the wrong committed by the superior authorities, else you accept that they have been considered to be the custodians of the public office, trust and confidence in Public life. I again returned from his office with a slight disappointment. There was a discomfiture at my heart by realising my inability as I found to have chained my hand inside the chilling cage in which the projection of the light is coming from the back side and I am seeing the reflection of my image on the front side .This was the sole occasion when, I have lastly visited in the office of Advocate -General during the tenure of Shri Bhatnagar .He was not only at the heights of success in the profession, but became so popular amongst the Advocates ,Judges , the entire staff whosoever being associated with him in his chamber, he had suffered a great set back .Who ever came in association with such a personality that he has risen to the tower of success. The temperament of Shri Bhatnagar has also changed by the age factor, but the opinion expressed by him, rather the words conveyed through him, have become so valuable that the same have provided me the foundations for my existence in the profession. I have remembered each and every advice with great receptive trend, even when it was conveyed to me with some versatile temperament. The orientation of the advise has been equipped with the great confidence as it was never conveyed without making any references from where it was originated in the constitution. I have seldom realised, that, whenever I used to criticise the provision of the constitution inviting the unprecedented litigation before High Court. Shri Bhatnagar was used to react in the same manner by conveying his protest that in case if he possessed a paperweight, he could have thrown it for hitting on my body. This was simply due to the reason that without even learning to the provisions I had started giving my opinion after joining the profession, which was intolerable to him. This is the incident in the previous years, when I first visited Allahabad High Court as an Advocate and started gossiping with such a senior Advocate .The cultivation of moral foundations is called our cultural heritage. On 2nd August 2000 he wrote an article in daily newspaper titled as ‘Those were the days’- the last English Chief Justice Orby H. Mootham. There was a pain realised by Sri Bhatnagar by comparing the administration of justice from the present time and the past period. His reminiscences of about 50 years, right from the period of the English judges to the present scenario. It has been said that those judges were mature, modest and commanded the respect by their very entry in the courtroom. There gesture of kindness to the lawyers and courteous dialogues used to blush out of their modesty even if their faces looked red and they were scared in the moment. They entered the courtroom right at 10.00 A.M. never before or a second afterwards. The chief justice was so cordial, warm and affectionate that this was the etiquette of high constitutional functionaries. The unusual dissent conduct with a strange warmth decency of Chief Justice Mootham was continued to remember by Sri Bhatnagar till his heavenly abode from this world. The second article published on 9th August 2000. ‘When Chief justice Mootham apologised to a litigant’. Chief justice Mootham entered the court smilingly, but became tense and pointed out to the Bench Secretary for the impropriety of behaviour of a litigant, a gentle man who was sitting in the fifth or sixth row wearing a head-gear. The gentleman has removed his cap. The moment the functioning started, the chief justice regained his usual pleased posture, but the irritation was again visible, when he saw the gentleman recapped his head. However, when the orderly went towards the gentleman he voluntarily removed his cap. This was perhaps by reflexes that he wore the cap once again. The chief justice stopped functioning and asked the court officer to act upon and thereafter the gentleman was asked to leave the courtroom. It was per by chance that Sri Bhatnagar went to chief justice’s chamber to make a mention. Justice Gyanendra Kumar was present in chief justice chamber. The chief justice in a most inimitable style asked, whether he (Sri Bhatnagar) had seen the gentleman, who despite been told not to wear the cap, defied the advice of the bench secretary. The chief justice has also said that the gentleman looked a dissent person, but he wandered why he repeatedly wore his cap soon after removing it. Was it by the defiance to authority of the Court? Justice Gyanendra Kumar, a very pleasant conversationalist, intervened. He said "Chief Justice", your lordship in the English society, take off a hat to show courtesy, but we in this country wear a cap to show our respect. Thus the gentleman was only trying to repeat his gesture of respect. The chief justice perhaps never knew it otherwise this was not causing irritation to him. The tall person, the chief justice broke into laugher and asked the bench secretary to trace and bring the gentleman in his chamber. Perhaps the gentleman was still out side the chief justice chamber. As soon as he entered, the chief justice expressed regret to him and pleaded his ignorance that the cap is worn to show respect. Soon, the gentleman after being happy from the reprimand made by the chief justice was again called to request him to be in the courtroom soon after the lunch. Justice Gyanendra Kumar was curious as to why the chief justice was insisting to have the gentleman in court. On being inquired the chief justice Mootham observed:- " He has been reprimanded in court by me and therefore he deserves an apology from chief justice in the court itself. Later the chief justice apologised in court itself. This has been never seen or heard by any judge about such gesture even to a lawyer when there is no good ground for reprimand." HOW CAN SUCH A JUDGE, THOUGH HE RETIRED IN 1961 CAN GO OUT OF MEMORY OF THOSE WHO HAVE SEEN HIM WORKING IN COURT AND OUTSIDE". The last glimpse of chief justice Mootham was seen at his farewell dinner when he rose to shake hands with each one of Advocates participating in the dinner. When he came to Sri Bhatnagar and his friend Sri Asif Ansari, some one said that he was a leader of a political party. The chief justice said that he refuses to take notice of the political affiliations of lawyers or their complexion and after this chief justice burst in laughter and shook left hand with Asif and gave right one to Sri Bhatnagar. Sri Bhatnagar continued to live with such memories and they remain fresh in his mind despite 40 years have passed in the building of the same court, which Sri Bhatnagar has last saw him. The third article published on 31st August, 2000 was about Justice Raghubar Dayal, Sri Bhatnagar has written that he open his submissions by using a phrase from the privy council’s judgement without referring to it. He said that the learned District Judge has carved out an new case for which no place was found in pleading! Justice Raghubar Dayal did not open the file and remarked - if counsel have learned to use this kind of language so early in life, he would land himself in disaster. Sri Bhatnagar immediately apolised. He said that he has escaped his lordship wrath and will have a chance before another judge, but justice Dayal said to him that he might present in the courtroom at 10.00 A.M. as this case will be taken as part heard case. Justice Dayal was tensed and his earlier day’s annoyance was apparent. Sri Bhatnagar said that he was relying Privy Council judgement where the judicial committee has used the same language. He said that he was conscious that he did not know English to well, yet he use such word, which were used by Privy Council. Justice Dayal admitted the appeal, but refuse to exercise discretion for staying the decree for demolition. He has written that his indiscreet use of language cause lost to his client. The house of the client was demolished but Sri Bhatnagar has written that he has repented this incident through out his life as to find out where he was wrong. Justice Raghubar Dayal, who retired in 1960 as the judge of Supreme Court, still had the great respect from Sri Bhatnagar, as he never committed such mistake through out his life.
5 comments:
My Lord Hon'ble Mr. Justice Markandey Katju, Judge of Hon'ble Supreme court of India on judicial activism has promulgated a proposition based upon the sepration of power amongest three organ of democratic foundation. Unfortunately the chapter III of enumerating Fundamental Rights are couched in negative language, as they adhere to the reciprocal obligation of the performance of co-related Duty upon the executive fuctionary of the State. Article 19 is framed in positive language. It has the self restrictions imposed under sub article 2 to 6. Thus if the judiciary will not get the judicial accountability of administration action, the foundation of Rule of Law in the society shal be eroded by having the subjugation and abrogation of the protection grated to our citizen, being "we.the people". Hon'ble Justice Markandey Katju on other aspect of dealing with the power exercised under Contempt of Court Act by the constitutional courts has taken"we. the People" as the sovereign of Soreign,. Thus the opinion of Justice Katju is incompatible and unrealistic according to the norms estabished by his lordship's on these two counts all together. It is requested to have the introspection of the opinion and have an other side of picture being taken into account on realistic treand of the society.
My Lord Hon'ble Mr. Justice Markandey Katju, Judge of Hon'ble Supreme Court of India on the subject of judicial activism has promulgated a proposition based upon the Sepration of Power amongest three organs of Democratic foundation. Unfortunately, the chapter III of our Constitution of India are enumerating the Chapter of Fundamental Rights. Most of the Articles including Articles 14, 16, 21 are couched in negative language, as they adhere to the reciprocal obligation of the performance of co-related duty upon the executive fuctionary of the State. Article 19 of Constitution is framed in positive language. It has the self imposed restrictions under it's Sub Article No's 2 to 6. Thus if the judiciary will not get the judicial review in accountability(i.e.,of decision making process) of administration action, the foundations of Rule of Law in the society shall be eroded. It may result in having the subjugation and abrogation of the protection granted to our citizen.Every citizen according to justice Katju, on a different proposition is being regarded as "we.the people". Since Hon'ble Justice Markandey Katju on other aspect of matter in dealing with the power exercised under Contempt of Court Act by the constitutional courts has taken into account "we. the People" as the sovereign of Sovereigns. Thus the opinion of Justice Katju is incompatible and quite unrealistic according to the norms estabished by his lordship's on these two counts all together. It is requested to have the introspection of the opinion and have an other side of picture being taken into account on realistic treand of our society.
My Lord Hon'ble Mr. Justice Markandey Katju, Judge of Hon'ble Supreme Court of India on the subject of judicial activism has promulgated a proposition based upon the Sepration of Power amongest three organs of Democratic foundation I send my first article typed myself with the threat of electricity failure, and as such, there remained the typographical errors, which I rectified second article. I tender my unconditional appologies to his lordship for inconvinience, if the previous article was percieved by my lord. In coninuity of my expression,"Legal institution and justice" is the name and title of this article.
"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.
“Here is not to make reply;
Here is not to reason why;
Here is only do and die.”
In my childhood, my teacher taught me in the classroom that “What ever you do; Do with your might; that is the way to be healthy, wealthy, and wise”. Subsequently, there after my father told me just few months before his death when I completed my 18 years of age that “Thou thy path be dark as sky; There is a star thy path to guide, So trust in god and do the right “.
By the gradual process of up and downs in my life, I could have been able to learn through my experiences that what we may be able to get through the grace of god are not the scattered love, nor the success and wealth but the knowledge. Thus I have started worshipping the almighty with the following prayer. “O, gods to thee I pray, increase my knowledge day by day”. It is only now after attending the respect amongst the members of the Bar and Bench that I have started thinking that all these notions in my life are based on the correct foundations. This is my firm determination that what ever I may be able to achieve in my life that will be dependent on the out come of my efforts on these guidelines and none else. Notwithstanding, there are the fluctuations in the formation of these notions, which provides me a sense of mental agony, frustration and disappointments in life. There is the profound bleeding at my heart on the psychologically region which seldom gives me an effect of chafing of the wound before it can be healed. This is the painful reminder of the lost empire, which was built on solid foundation. It is gradually obliterating.
It is fundamental that if rule of law is to have any meaning and content, the authority of the court or a statutory authority and the confidence of the public in them should not be allowed to be shaken, diluted or undermined. The courts of justice and all tribunals exercising judicial functions from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice. It is that expectation and confidence of all those, who have or are likely to have business in that court or tribunal, which should be maintained so that the court/tribunal perform all their functions on a higher level of rectitude without fear or favour, affection or ill-will.
This is the common experience that the simplicity in the way of life is the condition to attend the peace of mind. The notion of the peaceful co-existence is dependent upon so many factors of life. The realization of privileges to an individual is the beginning of the desire. This may lead to bondage. Attraction and repulsion are rooted in all sense –objects. The pleasure, which is based on sense-enjoyment at the cost of other innocent sufferings, may never provide the peace in the life. Thus if I refuse to fight the righteous war in order to get rid over the prevailing maladies, I may be committing and thereby incur the sin In the process.
A lawyer owes a duty to be fair to his client, but also to the court as well as to the opposite party in the conduct of the case. Administration of justice is a stream, which has to be kept pure and clean. It has to be kept unpolluted. Administration of justice is not something, which concerns the Bench only. It concerns the Bar as well. The Bar is the principal ground for recruiting Judges. No one should be able to raise a finger about the conduct of a lawyer. While conducting the case he functions as an officer of the court.
The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other profession in that what the lawyers do affects not only an individual, but also the administration of justice, which is the foundation of the civilized society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior”. If the profession is to survive, the judicial system has to be vitalized. No service will be too small in making the system efficient, effective and credible”
. The extraordinary complexity of modern litigation requires him not merely to declare the rights to citizens. It also requires to mould the relief warranted under given facts and circumstances and often command the executive and other agencies to enforce and give effect to the order, writ or direction or prohibit them to do unconstitutional acts. In this ongoing complex of adjudicatory process, the role of the judge is not merely to interpret the law .It is also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality…. The society demands active judicial roles, which formerly were considered exceptional but now a routine. The Judge must act independently, if he is to perform the functions as expected of him and he must feel secure that such action of his will not lead to his own downfall”.
The just and social duty is cast upon the legal profession. This is possible by the conduct and action of the people associated with legal profession by obliterating the inequalities as uneducated and exploited mass of the people may get a helping hand. What is legally due is to serve the duty and it is not worthwhile for an Advocate to become the spokesman of the litigant irrespective of the fact whether his cause is meant for sponsoring the justice to the society at large. The conduct anticipated in this manner is befitting from his status by upholding the high and honorable profession. There are the high expectations from the advocate, which is fair, reasonable and according to law.
There is the gradual decay of the above noted standard and the participation in the legal process, which should have been conducted completely flawlessly, and foolproof, they are picking out the lapses by expressing unsavory criticism. The consistency is now been considered as no virtue and the obligation of judicial conscience, which was meant to correct the error is manifesting like uncontrolled epidemic. This is the reason why the legal profession is not been accepted as a noble profession.
The proceedings are dependent upon the remedies available under the law. Every act of statutory body that must have been exercised by keeping the purpose and objective meant for enshrines the statutory power. The authority should have been exercised by keeping the object of such power that is meant by the statute and not with other extraneous consideration, otherwise the fraud will be perpetuated and the faith and belief shall not be subjected to any judicial scrutiny. Thus an accountability is must whenever as wrong is corrected. Some time in such matter of adjudicating without any valid cause, the court unwittingly becomes party to the miscarriage of justice. The judiciary is an ultimate interpreter of the constitution, which is assigned with a duty of the delicate task ensuring that the action of the authorities vested with the statutory power may not breach or transgress its limit.
It is distressing that an unscrupulous litigant in order to circumvent the due administration of justice of the court seldom found by adopting a dubious recourse of ingenious methods. These includes the filing of fraudulent litigation to defeat the right of the other person and such tendency deserves to be curbed out by passing the appropriate orders to provide a check upon such unhealthy practice and also by issuing necessary directions including imposition of exemplary cost. This is required for strengthening the belief of the common man in the institution of the judiciary. Creation of such faith may result in reaching the excellence in the profession.
The credibility of the judicial institution is founded upon the faith of the common man in its proper functioning. The faith would be eroded and the confidence destroyed if the officials deployed with statutory duties may start acting subjectively and not objectively. Society expects honesty and integrity and thus the official must be taught to act fairly, unbiased and impartially. The purpose of the court is to see that the society does not loose confidence and as such the court itself may not consider themselves that they are above the law. In appropriate cases even the court may find to pull down the shutters of adjudicatory jurisdiction before a party if his conduct is not subjected to be entertained against the so called grievances which is not genuine. The exercise of judicial discretion is founded on the well-recognized principles established by law. The menace of frivolous litigation may not be permitted to be hidden under the rigmarole of legal technicalities. The realities of the life have to be kept in mind while appreciating the evidence. The court is not obliged to make efforts to protect the guilty of polluting society and mankind. Thus in exercise of the constitutional power of the High court, the endeavor should have not been given for impairing the cause of justice by the court itself. The legal profession of an advocate is certainly having certain professional obligation, which are distinguishing from the business commitments. Thus if the court may not participate in the activities of providing justice at large, it is not permissible to get the injustice permitted by it by entertaining the frivolous litigation and to make them burden some to a common people.
Rectification of an order thus stems from the fundamental principal that justice is above all. It is exercised to remove the error and not for disturbing finality. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in administrative law as in public law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the court finds that the order was passed under a mistake it would not have exercised the jurisdiction. The erroneous assumption, which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid to recall an order.
The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice and as such no action can be permitted which may shake the very foundation itself. The rule of law is the foundation of a democratic society. The judiciary is the guardian of the rule of law and if the judiciary is to perform its duties and functions effectively and remain true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts has to be respected and protected at all costs. Secure that such action of his will not lead to his own downfall”.
Justice is a virtue, which transcends all barriers in the way of administration of justice. This is the acknowledged position of law that no party can be forced to suffer for the inaction or omission on the part of law enforcement agencies and whosoever he may be strong, every decision will be passed according to the procedure established by law. Thus the law has to bend before justice. No court can restore the broken heart of the justice and he should provide such protection, which is necessary for them like dutiful parents. The decision may not be repugnant to the normal concept and the basic unit of the society may not be allowed to be influenced by immorality. Thus the ultimate responsibility is by enunciating the foundation of a system on which administration of justice may get the public confidence in our judicial system.
Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion required to exercise has to be in accordance with law and set legal principles. Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by ant member thereof.
Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities that do not occasion failure of justice are not allowed defeating the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They can not be perverted to achieve the very opposite end. That would be a counter-productive exercise. Law is a living organism and its utility depends on its vitality and ability to serve as sustaining pillar of society. Contours of law in an evolving society must constantly keep changing as civilization and culture advances. The customs and mores must undergo change with the march of time. Justice to the individual is one of the highest interests of the democratic State. Judiciary can not protect the interests of the common man unless it would redefine the protections of the constitution and the common law. If law is to adapt itself to the needs of the changing society, it must be flexible and adaptable. Law is a social engineering and an instrument of social change evolved by a gradual and continuous process. History and customs, utility and the accepted standards of right conduct are the dorms which singly or is combination shall be the progress of law. Law is the manifestation of principles of justice, equity and good conscience. Rule of law should establish a uniform pattern for harmonious existence in a society where every individual would exercise his rights to his best advantage to achieve excellence, subject to protective discrimination. The best advantage of one person could be the worst disadvantage to another. Law steps ion to iron out such creases and ensures equality of protection to individuals as well as group liberties. Man’s status is a creature of substantive as well as procedural law to which legal incidents would attach. Justice, equality and fraternity are trinity for social and economic equality.
Law is the foundation on which the potential of the society stands. Law is an instrument for social change as also defender for social change.
The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional schemes. There may not be any occasion to entertain misgivings about the role of judiciary in outstripping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set-up to which the policy is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective fields. When the misuse is within tolerable limits, no uproar is heard, no media publication is seen. But when the magnitude of misuse assumes a menacing proportion, outburst of various types becomes noticeable and then a scam surfaces. The Judges are participants in the living stream of national life, steering the law between the dangers of rigidity on the one and formlessness on the other hand in the seemless web of life. The great tides and currents which engulf the rest of the men do not turn aside in their course and pass the judges idly by law should sub serve social purpose. Judge must be a jurist endowed with the legislator’s wisdom, historian’s search for truth, prophet’s vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the constitution and the Act with its interpretative armory to articulate the felt necessities of the time. The judge must also bear in mind that social legislation is not a document for fastidious dialects but a means of ordering the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable of expanding freedom of the people and the legal order can, weighed with utmost equal care, be made to provide the underpinning of the highly inequitable social order. The power of judicial review must, therefore, be exercised with insight into social values to supplement the changing social needs. The Judge can not retain his earlier passive judicial role when he administers the law under the Constitution to give effect to the constitutional ideals.
Unique manifestation
Thy eyes are reflected;
In praise of greatness;
With unique manifestation;
The song of scripture;
Which sing by celestial;
And also by terrestrial;
By every human being;
To fathom the mystery;
But just to describe it;
Must first be nectar thy;
Life is a shylock; always it demands. The fullest usurer’s interests for each pleasure Gifts are not freely scattered by its hand. We made returns for every borrowed treasurer. Each talent, each achievement and every gain me necessitated some penalty to pay. All you bestow on causes or on men of love or hate of malice or devotion somehow and sometime shall be returned again. This was the lesson in my life. There is no waste toil, no lost emotion. The motto of the world is to give and take. It gives you favour out of sheer goodwill but unless a speedy recompense you make you will find yourself presented with its bill". "Competition is a struggle for existence because there is always be survival of the fittest". "Every Act and every inquiry and similarly every action and pursuit, given by him was thought to aim at some good, and for this reason, the good has rightly been declared, to be that, at which all things aim. But a certain difference is found among ends". For him "For best was he who knows all things himself good, he that hearkens when men counsel right. But he who neither knows, nor lays to heart another wisdom, is a useless night".
Seldom I feel that there was some thing wrong with me in association with other, but still I felt difficulty in expressing my resentments. This is difficult to express an opinion as to what is the correct approach; as to whether I should keep silent; or I should react over the situation. It was realised that the best way was to adopt an apathetically behavior toward every situation, but at the same time, I feel that I have lost my identity and in this situation I feel a lot of disturbances. From there I have started my interactions towards the behavior and other associated activities, which was directly or indirectly associated with my life.
Shri Shanti Swaroop Bhatnagar has now been departed from this worldly affair to the heavenly abode. He was the king maker and always reacts like lord Krishna to Arjun in solicits the advice to the lawyers. He was very affectionate personality and was always ready to provide guidance to every person associated in legal profession. He used to incite the individual to look into the provision and than only indulge in the discussions. He used to react like boil milk upon the legal discussions by imprudent Advocates. The moment the recipient may become able to understand the issues in discussions, he may become cool. He remained occupied with gatherings of Judges, Advocates and prominent personalities. He was like a guiding light in my life, a reminder that come what may everything is right. His precious advice, right guidance and farsightedness encouraged me through thick and thin moments of life. His stimulating pats on my back, even your harshness at times all only added to inspire me, making me trust you completely as a lifelong companion, which has been grown up special with him in each passing years.
The most prominent and remarkable feature in the personality of Shri Bhatnagar is the purity of the mind and inclination to convey his idea with due reluctance. Seldom the people think that they know something but when they start searching for it then they find that it is missing the manner to which they knew. This is the beginning of the legal profession. The greatest virtue in legal profession is to create and enjoy at the same moment. The people do not readily except the superiority of the other intelligent person and as such these people are always remain in controversy. The simple reason of the superiority of Sri Bhatnagar was lying in his brevity of thought and the discussion to the point on the subject. He was a great learner and a great scholar in his contemporary period. He never demanded the respect, but he used to command it from the heart of his associates. I have seen him with tears in his eyes before his clients when he was informed that the family of the client is passing through financial constraint. The pain was apparent and was being chafed again and again before it can heel by his guidance on number of the occasions in my life. I have seen him with tears in his eyes when he came to my residence along with his associates and other colleagues to take the dinner, a few days before his departure for the treatment of his eyes at Apollo Hospital in Delhi. The sentimental breakdown during dinner was in the remittance by remembering his mother who used to prepare the curry that was served to him by my wife during dinner at our residence. I met him last during my visit at his residence on the festival of Holi. He invited me so many times before his death during strike, but I could not spare time to meet him. I did not know that it would be the last meeting at his residence during Holi festival.
With regard to Justice and injustice to an individual’s opinion assessments, we must consider the kind of action, it’s means and the justness for considering its effect and solution. Thus the justice is always represent in corresponding sense. I have seen him in association of some advocates who are ideologically antagonistic to his opinion, but from the very inception, a heterogeneous conglomeration of disparate and desperate interests designed mainly hedge against common enemy on both the constituents. There is no one having the perfection, but certainly some of the individuals may have risen to the heights, if they may start thinking in the perfect manner and convey the idea generated through such experiences with the same precision. This is very rare in the life of an individual to have the correct analysis of his perceptions with the desire, aptitude and knowledge in adequate representations.i Shanti Swaroop Bhatnagar was one of the senior Advocate, who has been assigned with the responsibility of representing the State Govt. as an Advocate-General in three consecutive terms with certain break due to political change in the State Govt. The responsibility of discharging the functioning by him as Advocate-General was not due to his political association with the ruling party, but it was on account of his merit, dedication, sincerity, and integrity in discharge of the duties. This was not a manifestation, but the real acknowledgement of the potential of a senior Advocate. There are the reflections of the memories in my mind, when I have seen him conducting the arguments from 1974 onwards. I have started practice after being enrolled as an Advocate in 1974. During the intervening period, since, I was involved in number of problems associated towards my responsibility of supervising 75 Acre agriculture land required to be cultivated, after converting to it’s potential from barren land to profitable agricultural land .The reason for looking after the said land was due to the sudden death of my father in the year of 1971,who died a premature death leaving behind my mother, my elder brother, myself and a younger sister. Since I could not continue my practice at Allahabad & I shifted to District Court due to family responsibilities, I could not see him conducting the argument at High Court for a long duration. This was in year of 1978, when I visited in his chamber for seeking guidance. I have visited in his chamber with a hope that I may get the adequate response, but the response I got was something beyond my expectations. It was initially to discourage me from joining the profession. He said that why a professional in the same profession will like to provide the potential to another rival in the same profession. Thus to rise up to the heights, what the individual may have attended after hard labour and dedications towards his profession, is the hard labour, dedication, sincerity and devotion to study the law. This reply has come forward with another complement that he may not be misunderstood for what he is expressing to myself regarding his inability to guide me. I immediately got the determination that now I will flight for rising up to the tower of success through my own efforts.
There were very few Advocates, who can speak such a bitter truth before junior colleagues for giving them a boosting response. To rise through struggle by his own efforts and the individual is not required to have the crutches of other person to provide the support to his body. This was a very valuable advice given Shri Bhatnagar, which has always provided me a lot of confidence and inclination for struggle. This has become the guidelines to provide a contribution in due discharge of the professional responsibility. This was on account of his personality traits having a remarkable combination of predominating characteristics of a prominent Saturn with a cusp of zodiac sign of Capricorn and Aquarius. These personality track fallow in its carving out through experience of adversities else they simply comes through cultivation of opinion and is being stimulated through notional ideology of Isolated doom and perform predominant role in it’s development. This is also a symbol of self-made man personality.
There were so many cases, which were argued by Shri Shanti Swaroop Bhatnagar prior to his elevation as an Advocate-General of U.P. I have never missed any opportunity to learn through his potentials to conduct the arguments, whenever I could have been able to listen his arguments .The arguments conducted by Shri Bhatnagar have conveyed the original idea and the strict and correct interpretation of the statutory provisions. It was in the year of 1991, that I got an opportunity to become associated with Shri Bhatnagar for engaging him as a Senior Counsel and from there I have learnt the technique of presentation of the arguments. Even after giving such valuable advice, Shri Bhatnagar had declined to argue in the matter. I could have only realised the standard, which is required for conducting the arguments, but none of the Senior Advocates have provided such a fruitful guidance, which has been given to me by Shri Shanti Swaroop Bhatnagar during my short association with him. I was subsequently informed by him that he has provided the self restrained in conducting the argument, as he wanted to provide me the encouragement and simultaneously wanted to find out my drawbacks tn conducting the arguments. I was subsequently inform by him that he has given me the certificate of approval towards my drafting and presentation of arguments. After the death of his junior Sri Amrish Kumar Sharma and his paralytic stock and the recovery thereof, I came in the close association with Shri Bhatnagar. He was always inclined to guide me, but he used to advice not to indulge in discussion with other advocates on such issues.
This was during the period of his becoming as an Advocate-General that once upon a time I visited in his chamber for showing my resentment and protest against the functioning of High Court. It was his advise to leave the profession and to become a social worker or a politician, who can speak in public against the wrong committed by the superior authorities, else you accept that they have been considered to be the custodians of the public office, trust and confidence in Public life. I again returned from his office with a slight disappointment. There was a discomfiture at my heart by realising my inability as I found to have chained my hand inside the chilling cage in which the projection of the light is coming from the back side and I am seeing the reflection of my image on the front side .This was the sole occasion when, I have lastly visited in the office of Advocate -General during the tenure of Shri Bhatnagar .He was not only at the heights of success in the profession, but became so popular amongst the Advocates ,Judges , the entire staff whosoever being associated with him in his chamber, he had suffered a great set back .Who ever came in association with such a personality that he has risen to the tower of success.
The temperament of Shri Bhatnagar has also changed by the age factor, but the opinion expressed by him, rather the words conveyed through him, have become so valuable that the same have provided me the foundations for my existence in the profession. I have remembered each and every advice with great receptive trend, even when it was conveyed to me with some versatile temperament. The orientation of the advise has been equipped with the great confidence as it was never conveyed without making any references from where it was originated in the constitution.
I have seldom realised, that, whenever I used to criticise the provision of the constitution inviting the unprecedented litigation before High Court. Shri Bhatnagar was used to react in the same manner by conveying his protest that in case if he possessed a paperweight, he could have thrown it for hitting on my body. This was simply due to the reason that without even learning to the provisions I had started giving my opinion after joining the profession, which was intolerable to him. This is the incident in the previous years, when I first visited Allahabad High Court as an Advocate and started gossiping with such a senior Advocate .The cultivation of moral foundations is called our cultural heritage.
On 2nd August 2000 he wrote an article in daily newspaper titled as ‘Those were the days’- the last English Chief Justice Orby H. Mootham. There was a pain realised by Sri Bhatnagar by comparing the administration of justice from the present time and the past period. His reminiscences of about 50 years, right from the period of the English judges to the present scenario. It has been said that those judges were mature, modest and commanded the respect by their very entry in the courtroom. There gesture of kindness to the lawyers and courteous dialogues used to blush out of their modesty even if their faces looked red and they were scared in the moment. They entered the courtroom right at 10.00 A.M. never before or a second afterwards. The chief justice was so cordial, warm and affectionate that this was the etiquette of high constitutional functionaries. The unusual dissent conduct with a strange warmth decency of Chief Justice Mootham was continued to remember by Sri Bhatnagar till his heavenly abode from this world.
The second article published on 9th August 2000. ‘When Chief justice Mootham apologised to a litigant’. Chief justice Mootham entered the court smilingly, but became tense and pointed out to the Bench Secretary for the impropriety of behaviour of a litigant, a gentle man who was sitting in the fifth or sixth row wearing a head-gear. The gentleman has removed his cap. The moment the functioning started, the chief justice regained his usual pleased posture, but the irritation was again visible, when he saw the gentleman recapped his head. However, when the orderly went towards the gentleman he voluntarily removed his cap. This was perhaps by reflexes that he wore the cap once again. The chief justice stopped functioning and asked the court officer to act upon and thereafter the gentleman was asked to leave the courtroom. It was per by chance that Sri Bhatnagar went to chief justice’s chamber to make a mention. Justice Gyanendra Kumar was present in chief justice chamber. The chief justice in a most inimitable style asked, whether he (Sri Bhatnagar) had seen the gentleman, who despite been told not to wear the cap, defied the advice of the bench secretary. The chief justice has also said that the gentleman looked a dissent person, but he wandered why he repeatedly wore his cap soon after removing it. Was it by the defiance to authority of the Court?
Justice Gyanendra Kumar, a very pleasant conversationalist, intervened. He said "Chief Justice", your lordship in the English society, take off a hat to show courtesy, but we in this country wear a cap to show our respect. Thus the gentleman was only trying to repeat his gesture of respect. The chief justice perhaps never knew it otherwise this was not causing irritation to him. The tall person, the chief justice broke into laugher and asked the bench secretary to trace and bring the gentleman in his chamber. Perhaps the gentleman was still out side the chief justice chamber. As soon as he entered, the chief justice expressed regret to him and pleaded his ignorance that the cap is worn to show respect. Soon, the gentleman after being happy from the reprimand made by the chief justice was again called to request him to be in the courtroom soon after the lunch. Justice Gyanendra Kumar was curious as to why the chief justice was insisting to have the gentleman in court. On being inquired the chief justice Mootham observed:- " He has been reprimanded in court by me and therefore he deserves an apology from chief justice in the court itself. Later the chief justice apologised in court itself. This has been never seen or heard by any judge about such gesture even to a lawyer when there is no good ground for reprimand." HOW CAN SUCH A JUDGE, THOUGH HE RETIRED IN 1961 CAN GO OUT OF MEMORY OF THOSE WHO HAVE SEEN HIM WORKING IN COURT AND OUTSIDE". The last glimpse of chief justice Mootham was seen at his farewell dinner when he rose to shake hands with each one of Advocates participating in the dinner. When he came to Sri Bhatnagar and his friend Sri Asif Ansari, some one said that he was a leader of a political party. The chief justice said that he refuses to take notice of the political affiliations of lawyers or their complexion and after this chief justice burst in laughter and shook left hand with Asif and gave right one to Sri Bhatnagar. Sri Bhatnagar continued to live with such memories and they remain fresh in his mind despite 40 years have passed in the building of the same court, which Sri Bhatnagar has last saw him.
The third article published on 31st August, 2000 was about Justice Raghubar Dayal, Sri Bhatnagar has written that he open his submissions by using a phrase from the privy council’s judgement without referring to it. He said that the learned District Judge has carved out an new case for which no place was found in pleading! Justice Raghubar Dayal did not open the file and remarked - if counsel have learned to use this kind of language so early in life, he would land himself in disaster. Sri Bhatnagar immediately apolised. He said that he has escaped his lordship wrath and will have a chance before another judge, but justice Dayal said to him that he might present in the courtroom at 10.00 A.M. as this case will be taken as part heard case. Justice Dayal was tensed and his earlier day’s annoyance was apparent. Sri Bhatnagar said that he was relying Privy Council judgement where the judicial committee has used the same language. He said that he was conscious that he did not know English to well, yet he use such word, which were used by Privy Council. Justice Dayal admitted the appeal, but refuse to exercise discretion for staying the decree for demolition. He has written that his indiscreet use of language cause lost to his client. The house of the client was demolished but Sri Bhatnagar has written that he has repented this incident through out his life as to find out where he was wrong. Justice Raghubar Dayal, who retired in 1960 as the judge of Supreme Court, still had the great respect from Sri Bhatnagar, as he never committed such mistake through out his life.
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