Our Democratic India is founded on Written Constitution and founding fathers and mothers established in the Constitution- both the ideals and the institutions & processes for achieving them.
In our vast, beautiful, geographical landscape of Independent INDIA, i.e. Bhaarat, the Constitution of INDIA, which came into existence on 26th January 1950, is the supreme & fundamental governing volume. It is nearly self contained as to broad principles of governance. It is mammoth, defining every bit of governance for the very accomplishment of security of life and of property to all Indians residing wherever in any corner of the world territory.
This epic governing volume makes a categorical announcement in the introductory passage that people of INDIA are the architect of this volume. The announcement assumes significance because by this announcement, the framers of our Constitution propose to acknowledge and give tribute to selfless sacrifice of every men & women who devoted their only life for the independence of INDIA.
The origin & the authority of the Indian legislatures, of the Indian govt, of the Indian judiciary and of the Indian bureaucracy flow from this peoples' governing volume. Every injunction of this governing volume represents the wishes and ambitions of our countless freedom fighters; and Indian law makers, Indian government, and the Indian judges discharge their responsibilities within four corners of injunctions in this governing volume. These State organs, while in every exercise of their discretionary powers, take inspiration and guidance from this governing volume.
And therefore, every bit of word, whether by guidance or by mandatory injunction, contained in this governing volume, can safely be taken as, will bring prosperity to people of India when adhered to it, in letter and spirit. The spirited adherence to the words of this governing volume is the first promise all men at State organs make to the people of India.
In India, the contemporary democratic set up and functional relationship between the State organs comprising the Legislature i.e. The MPs & MLAs, The Executives i.e. Govt which acts as an Agent between the People and its Representatives, and the Judiciary, the watch dog of the Rights of the People, is such that the People choose their Representatives and authorize them to make laws and authorize them to institute Government for administration of the Country.
And therefore the Representatives in turn make laws for the welfare of the people and appoint agent in the name of Govt to implement the laws made by them. The role of the Judiciary is to ensure that the laws made by the Legislatures are implemented by the Govt in letter and spirit.
Laws are made and passed by Legislatures which represents wishes of the people and the govt who acts on behalf of legislatures voluntarily takes oath and undertakes to fulfill the wishes of people as they administer laws and perhaps this is the premise why ministers and bureaucrats including the Judges are called Public Servants and Legislatures are not deemed as Public Servant ordinarily, except in cases of Corruption. Also, the Govts, ordinarily, are not a law making body but a law enforcing body. They are entitled to make laws only to the extent to further the objectives of laws made by our Legislatures.
Laws are not passed merely for being passed but for being implemented. The mere fact that an objective has been embodied in the Constitution or a law itself indicates that the Constituent Assembly and the relevant legislature wanted it to be achieved. The order embodied in the Constitution and various laws framed under it is the concern of every citizen as a breakdown of that order shell jeopardize our existence as a free and cohesive society and this injure every citizen. This stake in the order is sufficient to provide standing to a citizen to draw the attention of Courts to developments that endanger that order.
All Statutes or Laws so made and passed by Legislatures is to remedy the ill that has plagued the society. All Statutes comes into being with some policy and objective to be achieved. Every statutory provision in a Statute comes into being after due deliberation and every letter of the law is employed with great caution and care and with some purpose. It is settled that Legislation, both Statutory and Constitutional, are enacted from experience of evil.
Words and Provisions found in the Constitution of India or in the enacted laws are no trivial. They are found for their notoriety and expediency, to regulate human behavior and promote society welfare. And no separate set of reasons needed to seek spirited observance of the law, for its mere presence in the books of law calls for forceful observance of it.
It may be beyond one’s wisdom to anticipate nor it is necessary for one to outline the consequences that may occasion due to patent violation of a statutory provision, for the consequences have already been deliberated at the time of passing of the statutory provision. It is suffice if one merely seeks the bare observance of the letter of the law and the spirit inherent in the letter of the law. As everyone says that we live in a Rule of Law society. What we really mean by Rule of Law is that the Law which is established must be observed in all the circumstances except in cases where the Law itself is absurd and or arbitrary. Every letter of the Law must be observed with due respect, unless the same is declared by the competent court of Jurisdiction as manifestly arbitrary and or absurd.
It is of first importance to the Govts and its various instrumentalities to implement and administer the Laws so made by the Parliament and the State Legislatures. It is even not open to the Supreme Court and the High Courts to act or give judgments in deviation from established laws. However, the bare act of State or its instrumentality in contravention of established laws frustrates the foundation of Rule of Law society.
Moreover, Should I not invoke Promissory Estoppel of laws against all Public Servants including all Constitutional functionaries for they voluntarily took Oath of allegiance to Rule of Law. May I also say that every legal duty cast upon is a positive promise made to the people.
Moreover, in my firm view, every Public Servant invariably speak letter of the law meaning that as soon as he assumes charge of that designated public office, he deemed to have said & promised all what is written on the statutes. Like for example, Instead of stating the letter of the law, Can I have the liberty of stating- “The Chief Justice of Bombay High Court has promised and emphatically said, “Tell us if you face any misbehavior or any difficulty in getting Justice at Lower Courts or Tribunal, I have, under Article 227 of Constitution of India, unqualified Power of superintendence over all courts and tribunals throughout the territories in relation to which I exercises jurisdiction. I will do the needful.” The Chief Justice further exhorts and reiterates that Section 14 of General Clauses Act 1897 empowers me to exercise my powers from time to time as occasions requires.
I would also like to say that the failure of the Public officials or their illegal acts of omissions and negligence should actually be read as their positive decision Like for eg., the govt has decided that childrens should continue to beg; people may continue to live on footpath; the corrupts should continue to have all substantial legal protection against prosecution for corruption.
This Hon'ble Court may appreciate that, while presiding & dwelling upon and adjudicating a case before it, the injunctions and mandate embodied in the Constitution of India is of first importance to them, for Judges themselves owe their origin, derive their authority and discharge their powers and responsibilities within ambit of this Constitution. The injunctions & mandate incorporated in the laws & legislation made and passed by competent Parliament and State Legislature, the off-spring of Constitution itself, therefore becomes of immediate importance to the Judges while presiding & dwelling upon and adjudicating a case before it, for it entails the cherished Rule of law society.
The question sometimes occasion, " Do Sovereign Indian Govt can take refuge in paucity of money as defense in their inability to perform Statutory duties so entrusted." The Answer is NO.
In this regard, the Observation and Judgment by Legendary Hon.Justice Krishna Iyer in Ratlam Municipality case is, though unfortunately not trend setting, nevertheless is inspiring. The Hon Court, taking Judicial notice of magnitude of Corruption in State Administration, Said, "The Criminal Procedure Code (as in the instant case) operates against Statutory bodies and Others regardless of the Cash in their coffers even as human rights under part Three of the Constitution have to be respected by the State regardless of Budgetary provisions.
The Court continued - Likewise, Sec 133 of the said Act has no saving clause when the Municipal council is penniless. Otherwise a profligate Statutory body or pachydermic Govt. Agency may legally defy duties under the Law by urging in self defense a self created bankruptcy or perverted expenditure budget. That cannot be."
Also, the existence of legislative pronouncement duly gazetted by the appropriate Government also pre-supposes that appropriate government is equipped to carry out the injunctions and mandate of the legislative pronouncement.
I also recall the repeated affirmations by the Courts (e.g. in K.R. Shenoy vs Udipi Municipality, op cit, or Ratlam Municipality vs Vardichand and others, op cit.) that it is the duty of Courts to ensure that public bodies and public officials perform their statutory duties and that citizens have a right to move the Courts to ensure compliance by officials. "The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile. ... The Courts thus have a direct interest in ensuring that the objectives are realized and citizens have the right as well as duty to approach the Courts to ensure that everything necessary is done to see that the objectives so embodied are achieved.
What is not Rule Of Law ?
To illustrate I need to borrow the wisdom of Dr Upendra Baxi, one of the finest Indian Legal mind.
(1) As an Authority of Public Power, I have this and that power. I exercise it in this or that manner because I so wish. The only good reason which I exercise my power this or that manner is that I wish to exercise it in this or that manner.
(2) As an Authority of Public Power- I may so act as to favour some and disfavour others;
(3) As an Authority of Public Power- I may so act as to give an impression that I am acting within my powers but in reality I may be acting outside it;
(4) As an Authority of Public Power- I may decide by myself what your rights and liabilities are without giving you any chance to be heard, Or I may make your opportunity to be heard a meaningless ritual;
(5) As an Authority of Public Power- I may decide but declines to let you know the reasons or grounds of my decisions or provide reasons without being reasonable;
(6) As an Authority of Public Power- I may use my power to help you only if I am gratified in cash or in kind;
(7) As an Authority of Public Power- I may choose to use my power only after a good deal of delay and inconvenience to people;
(8) As an Authority of Public Power- I may just refuse to exercise the powers I have regardless of my legal obligation to act and regardless of social impact of my inaction;
In modern democracies, wide powers vest with Legislators, Judges and with Administrators, with Govt, and with Bureaucrats. Each group, if it so wishes, may act quite fancy, in any or all the ways thus far specified hereinbefore.
In many respects, we now live in a society that is only formally democratic, as the great mass of citizens has minimal say on the major public issues of the day, and such issues are scarcely debated at all in any meaningful sense in the electoral arena and where life decisions are taken in closed chambers of Ministers & Bureaucrats.
"To oppose or challenge the illegal acts & omissions of government does not mean you are against the country or the people that the government supposedly represents. Such opposition should be called what it really is: democracy, or democratic dissent, or having a critical perspective about what our leaders are doing. Either we have the right to democratic dissent and criticism of these acts & omissions or we all lie down and let the leader do what is best, while we follow uncritically, and obey whatever he commands. That's just what the Germans did with Hitler, and look where he got them.
Sandeep Jalan (B Com, LLB)
Janhit Manch, Kuber Bhuvan, Bajaj Road, Vile Parle West, Mumbai- 400056.
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