39. That 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 everyone 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. It 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. 40. That 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. It 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 and without even knowing, as to 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 an advocate, which is fair, reasonable, and according to law. 41. That 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 in foolproof manner. 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 now manifesting like uncontrolled epidemic. This was not the reason, why the legal profession has been accepted as a noble profession. The whims and fancies of the members of judiciary do certainly not control this, but it regulated from the professional ethics and under the Advocate Act read with Bar Council Act. An advocate is accountable to the litigants on whose behalf, he is expected to espouse the cause of litigants. 42. That the proceedings are dependent upon the remedies available under the law. Every act of statutory body, which must have been exercised by keeping the purpose and objective meant for enshrine the statutory power with the authority, should have been exercised by keeping the object of such power which 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. 43. That the dawn of independence has virtually came with confrontation of many problems for effective administration. The foremost and the prominent problem was rehabilitation of the refugees. There was no place for providing them the basic requirement of shelter and for that reason, the government provided the shelter home for them. The locality was not congenial for their adaptation. Thus the hostility amongst the people has started generating their side effects. The civilisation is the beginning of the governance to any nation. In absence of any co-ordination amongst the fellow citizens, the concept of social embodiment was virtually evasive. Thus there was neither any co-operation nor co-ordination amongst the citizens. The sole motto was to accumulate the resources for advancement and to enforce their hypothetical illusive superiority amongst the other inhabitant. Thus there was a complete absence of religious and spiritual concept in the society. 44. That no man can survive in isolation. There is a rule of give and take. The moment, one person is inclined to accept everything as a matter of his right, the person who is inclined to give him his extra potential, withdraw the basic offer. This become the end of social collaboration. No country is able to survive except by the will of the people. The bitterness amongst the people may ultimately lead to a crisis on psychological level. Thus the country required the coercive method for the enforcement of law and order situation. This was on account of partition of India. 45. That the citizens, “we the people” contemplating of the infringement of the indefeasible rights cannot be told for tolerating infraction or invasion of their rights anymore, which is guaranteed enough to relegate at the dawn of human rights jurisprudence promulgated by judicial activism to fight their own battle in the forum available to them under social action litigation. The Hon’ble Supreme Court has put an end to instrument of status upholding the traditions of Anglo Saxon jurisprudence and resisting radical innovation as honest in the use of judicial power to promote social justice. Nothing rankles more in human heart than in justice. Access to justice is basic human right on which is dependent other rights relating to equality. Justice has always been the first virtue of any civilised society. Life of law is a mean to serve the social purpose and felt necessity of people. Affirmative action promotes maximum well being for the society as a whole and strengthens forces of National integration. The purposeful role for more active creative in deciding it by the court of law is by not “what has been” but “what may be”. This is the role and purpose of law for the sovereign power of “we the people” as enumerated in our preamble constitution of India. 46. That there are virtually no individual fundamental rights except the right conferred under article 19 of the constitution of India, rest are the fundamental duties of the state, which are likely to be enforced for the protection of its citizen. By the gradual advancement of the judicial activism, the basic fundamental duties embodied in our constitution, have now been regarded as enforceable rights of the citizen without taking into consideration as to whether the person, who is coming forward for seeking the enforcement of such duties by the state, may actually deserve for such enforcement under an equitable discretionary jurisdiction of the constitutional courts in India. This is a basic flow in the process of judicial verdict. There is the need that the impact and implementation of the law, which is primarily concerned with a social science, may be able to achieve its objective the concept and the guarantees enshrined under article 14 having two connotation, i.e.. Equality before the law and the equal protection of the law are not the same phraseology, although they appears to serve a common objective to eradicate the social evils of inequalities and discrimination. 47. That Article 14 has a pervasive potency and a versatile quality, equilitarian in its soul, but allergic to discriminatory dictates. It is well known that equality is anti-thesis to arbitrariness. Since the license may not be given to a blind man to drive a car, how worthwhile it may be to give the similar license to a criminal to do every sort of atrocities being committed by indulging into the crime of the innocent people. There are inherent restrictions applicable for the enforcement of the individual personal right under article 19, which empowers the state to enforce reasonable restriction on the exercise of the right of the people in the interest of sovereignty, integrity of India security of the state, friendly relations with foreign state, public order, decency or morality etc. including the incitement to an offence pertaining to the reasonable restrictions regarding freedom of speech and expression, to assemble ,to form associations and freedom to reside and move freely throughout the territory of India. 48. That by the constitution (first amendment) Act 1951, there have been further restrictions to practice any profession, or to carry on any occupation, trade or business for professional or technical qualification as well as carrying on any occupation, trade or business by the state and its instrumentality to the exclusion, complete or partial, of citizens. Thus the question arises as to whether there may not be a valid test of classification based on qualities or characteristics necessarily coupled with the object of legislation based on intelligible differential, which has certain nexus with the realities of the time to dealt with the law and order situation by providing necessary restriction over the unchecked liberty granted to the individual detrimental to its integrity and sovereignty for prohibition to avail the benefit of equality clause by taking the rescue for forbid classification. . There cannot be any enforceable fundamental right to an individual for indulging in anti national activities. Thus the verdict given by the Hon’ble Supreme Court in Minerva Mills Limited Vs Union of India 1980 (3) SCC 625 is required to be reviewed for effective enforcement of the duties caste upon the citizen by passing through the test of Form and Object and Pith and Substance to mould and replace by the test of Direct and Inevitable effect. 49. That the farmer of constitution has miserably forgotten the basic and elementary principles of jurisprudence and legal theory; that every night implies the forbearance on the part of others to perform his duty. Every right is correlated and coexistent with duty The preamble of our constitution was not having the boosting prospects to its citizen of our constitution was not having the boosting prospects to its citizens for resolving India as Sovereign democratic republic and for endeavour the unity of nation till 3rd January 1977. 50. That these fundamental duties ten in numbers touch almost all important aspects of National life of an individual life of an individual as well as nation. These are true Magna Carta by adopting an adhering to which in our life. We can achieve the objective of an egalitarian society, free from corruption, oppression, favoritism, and nepotism. Each of these duties, when decoded and dilated, will go to encompass, the various facet of human activity and behaviour; a remedy to most evils plaguing our society -an educational institution; a public undertaking etc. The present day crisis is the result of the phenomenon where tried to achieve right while forgetting corresponding duties as reciprocal to fundamental rights. We may get rid of the despotic and corrupt tendencies of authority in politics and administration having pressure groups ever hungry and lustful for privilege and power. 51. That the chapter of fundamental duties in part (IV A under article 51 A has been introduced by our constitution (Forty second amendment) Act, 1976(w.e.f 3.1.1977). The insertion of new Article 31 C i.e. saving of laws giving effect to certain directive principles, notwithstanding anything contained in the article 13, no law giving effect the policy of state towards securing the principles laid down in part IV shall be deemed to be void on the ground that it is in consistent with or takes away or abridge any of the right conferred under the Article 14 &19 of the constitution. The Supreme Court of Mineva Mills Ltd. Vs Union of India 1980 (3) S.C.C page 625 has laid down the same as unconstitutional holding that it virtually tears away the hearts of basic fundamental freedom without which a free democracy is impossible. This is a charter of class legislation.” The Article 31 D pertaining to saving of the law in respect of anti-national Activities has already been omitted by the constitution (Forty third amendment) Act 1977 w.e.f 13.4.1978. The other Article 39(f) providing Protection to children by giving them opportunities and facilities in healthy manner and in conditions of freedom & dignity and that childhood and youth are protected against moral and material abandonment has been inserted w.e.f. 3.1.1977. Equal justice and free legal aid for securing justice to economically weaker classes and other disable down trodden citizens under Article 39 A is on account of 42nd constitutional amendment. The participation of workers in the management of industries and protection and improvement of Environment and safeguarding of the forest in wild life under Article 43 A and 48 A respectively have also been inserted by virtue of 42nd constitutional amendment, Act, 1977. We could not achieve to cherish the goal enshrined under Article 44 providing uniform civil court for the citizens, Thus till the situation has not become alarming and the Govt. was not compelled to impose the emergency, the farmer of the constitution have neither given any heed for the insertion of the chapter of fundamental duties and directive policies for the uplift of the poor worker, children and other disabled person. It is certainly a matter of grade disappointment that till date these fundamental duties and directive principles of state policy have still not been enforce as that of the fundamental rights of the citizens, The country may be ruled down by functioning anarchy and oligarchy, but the prosperity, integrity and solidarity of the nation is impossible without the enforcement of the duties assigned to its citizens”.
Posted on: Sat, 13 Dec 2014 04:45:16 +0000
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