There are three comments I wish to make about some of the reactions to my article 'The Need for Judicial Restraint' :
(1) Some say that no doubt making/ amending the law is the job of the legislature, not the judiciary, but since the legislature is not doing its job properly the judiciary has to do it. If this argument is accepted then it can also be said that since the judiciary is not doing its job properly (there is so much delay in deciding cases, a section of the judiciary has become corrupt, etc.), the legislature or executive should do its job of deciding cases.
(2) Section 8(4) of the Representation of the People Act, 1951 may be a bad law but that does not make it unconstitutional. Here I may relate a story. Sir Thomas More (1478-1535), who was the Lord Chancellor of England, was once taking a walk in London with his daughter Margaret and son-in-law Roper. They saw a man running, and Margaret said to Sir Thomas " Father get that man arrested". When Sir Thomas asked why, she replied "Because he is a bad man". "But which law has he violated ?", asked Sir Thomas. "He has violated the law of God", replied Margaret. "Then let God arrest him", said Sir Thomas, "I get people arrested only if they break the law made by Parliament".
There is a difference between law and morality, as the British jurists Bentham and Austin pointed out. Section 8(4) may be a bad law but nevertheless it is still a law.
3) Many people say that since several members of Parliament or State Legislative Assemblies have criminal backgrounds, no law will ever be made or implemented to clean the system.
To this my reply is that India is passing through a historical transition period from feudal society to modern society, and to my mind will last about another 15-20 years. It will take this long a period to clean the system and bring about an honest, just and modern social order. It can only be by peoples' struggles that such a social order can be created, not just by judicial decisions or making laws. One wishes that this transition would take place immediately and without any pain or turbulence, but unfortunately that is not how history functions.
Human beings have creativity. People have to use their creativity to create such a clean, just and modern social order in which all Indians get decent lives and the great social evils like poverty, unemployment, corruption, etc. are abolished. All patriotic Indians should help in this great historical challenge facing the nation.
(1) Some say that no doubt making/ amending the law is the job of the legislature, not the judiciary, but since the legislature is not doing its job properly the judiciary has to do it. If this argument is accepted then it can also be said that since the judiciary is not doing its job properly (there is so much delay in deciding cases, a section of the judiciary has become corrupt, etc.), the legislature or executive should do its job of deciding cases.
(2) Section 8(4) of the Representation of the People Act, 1951 may be a bad law but that does not make it unconstitutional. Here I may relate a story. Sir Thomas More (1478-1535), who was the Lord Chancellor of England, was once taking a walk in London with his daughter Margaret and son-in-law Roper. They saw a man running, and Margaret said to Sir Thomas " Father get that man arrested". When Sir Thomas asked why, she replied "Because he is a bad man". "But which law has he violated ?", asked Sir Thomas. "He has violated the law of God", replied Margaret. "Then let God arrest him", said Sir Thomas, "I get people arrested only if they break the law made by Parliament".
There is a difference between law and morality, as the British jurists Bentham and Austin pointed out. Section 8(4) may be a bad law but nevertheless it is still a law.
3) Many people say that since several members of Parliament or State Legislative Assemblies have criminal backgrounds, no law will ever be made or implemented to clean the system.
To this my reply is that India is passing through a historical transition period from feudal society to modern society, and to my mind will last about another 15-20 years. It will take this long a period to clean the system and bring about an honest, just and modern social order. It can only be by peoples' struggles that such a social order can be created, not just by judicial decisions or making laws. One wishes that this transition would take place immediately and without any pain or turbulence, but unfortunately that is not how history functions.
Human beings have creativity. People have to use their creativity to create such a clean, just and modern social order in which all Indians get decent lives and the great social evils like poverty, unemployment, corruption, etc. are abolished. All patriotic Indians should help in this great historical challenge facing the nation.
I think all Indian citizens must have the same rights and duties as per our constitution and in this case MPs seem to be more equal.
ReplyDeleteI agree with your arguments one AND TWO.Then again if a law is bad and , does one have to bear it, because for instance the constitution says it is fine?
ReplyDeleteAs for the transition that may be taking place in the society, do we have to bear with felons, thugs and thieves until the system is naturally cleansed? Do we have to vote them and keep them in legislatures at the tax cost to trample upon the country?
I think NO.
If one is convicted by a lwer court one must not contest in elections or hold offices until one is cleared by a higher judiciary. This is the safe way to aid the transition that may be taking place.
Let me ask if a judge is held guilty or even accused and brought to court can he or she continue to hold the office?
Are you an advocate?
DeleteThere was an accident with the car of a Metro. Magistrate. It was his fault. He filed a false case.
During cross examination he said that his vehicle was not seized. But he signed on the seizure memo and release papers. Technically this should be called as fabrication of documents. Since he knew that these documents will be part of the judicial proceedings. He is punishable with 7 years imprisonment.
He did not file a complaint before the police arrested me. He says that he does not remember when he filed the complaint.
The police officer who arrested me on his call mocked him with his colleagues saying that he does not know any thing about law. But still he filed the FIR since he was under pressure from MM.
There is talk of independence of legislature, executive and judiciary. I am unable to see independence in any activity. Rather they all seem to be hands in glove.
http://www.livelaw.in/judicial-legislation-boon-or-bane/
ReplyDeletePlease see this.
जस्टीस काटजू सर, इस समय आप जिस तरह से समाज को दिशा देने का कार्य कर रहे हैं वह इस भ्रम के माहौल को तोडने वाला है और बहुत बेहतर ठंग से स्थितियों का आकलन करने वाला है। आज के इस ब्लाग में आपने काफी हद तक सपष्ट किया है कि जनता के आंदोलन ही व्यवस्था की सफाई के लिए भूमिका निभायेंगे। क्योंकि आप की दृष्टि वैज्ञानिक है इसलिए आप समाज के बदलावों को समझते हुए आसानी से भविष्यवक्ता की तरह निष्कर्ष दे पाते हैं। हम आपके ब्लाग को जरूर पढते हैं और इन्हे अपने फेसबुक पेज पर भी जरूर शेयर करते हैं। हमारी गुजारिश है कि विधिक समुदाय को एकत्र करने के लिए किसी फोरम की स्थापना करके इन विचारों की वैज्ञानिकता को लोगों तक प्रसारित करने की दिशा में सामुहिक तौर पर कोई कार्य किया जा सके...धन्यावाद सर।
ReplyDeletebhai katju jab apne liye red lights ki judgment di thi tab khayal nahin aaya ki legislation judiciary ka kaam hai?
ReplyDeletejustice kabir ke baare mein bhi kuch bolo. sahab ne duffer behan ko judge banva dala aur aap chup bithe huei hain? neet ki judgment me karodon ka len den hua aur aap aankehin moond kar baithe hue hain? haan jahan kuch acha ho raha ho to aap apna bigul le kar shor machane lagte hain!
James,
Deletedo not rub too much. Katju's morale is down already that he will not get any political post. Jaanedo na, yeh bus ek aur cyberspace kharab karnewalaa hain.