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.
