Plight of living Ghosts in India

(One Lal Bihari who was declared deceased in 1976 has tried his best by agitating his grievance before the revenue authority of District Azamgarh saying that I am here , I am alive but the reply came that according to land registry office you are dead by unruffled officials .Lal Bihari sought his arrest , tried to run for parliament , kidnapped the child and stolen the property , threaten murder , insulted judges through leaflets listing his complaints at legislatures of U.P State assembly and demanded widow's pension for his wife . Each time he was beaten up by police or rebuked for wasting officials time . Unable to make headway , Lal Bihari , the dead , sought the company of other ghost in Uttar Pradesh a dozen of these ghost demonstrated outside the U.P assembly to publicise their fate but nothing in last 18 years to get his life . Ultimately sue motto notice was taken by the High Court Allahabad which was highlighted in Times magazines and finally the matter has been refereed to National Human rights Commission by Allahabad High Court by its judgement dated 7.1.2000 in writ petition no 29806 of 1999 which is reported in Selected Allahabad Cases to which I am an Editor of the aforesaid journal .)

The Times Magazine , Asia Edition July 19th ,1999 published an article that "Bribe an official in eastern fringes of India's state of Uttar Pradesh and declare the owner of the Land dead and transfer his land to your name . Our constitution which is considered with its gospel to achieve and resolve through its processor of therapeutic justice to escalating Psychosomatic melodies and explosive rights without enforceable duties to its citizen is generating spiralling delinquencies as envisaged in an Article " Constitutional resurrections " published in view point of a newspaper on 3rd May 1998 by Yogesh Kumar Saxena practising at Allahabad High Court has something to express on this aspect as to why the quest of mankind is to grasp the fundamental truth , the tenacity without even the least touch of faith in reality which has diminished the entire surroundings and undergone a radical transformation to the point of extinction under our constitution . For further details, you may see the extract of the interview taken with Yogesh Kumar Saxena ,a constitutional Lawyer by Manisha Parikh for India World .co. in in Samchar .com with reference to a judgement in reference to Writ petition no 29806 of 1999 Association of Dead People and another Vs State of U.P decided on 7.1.2000 and published in (2000) 1 selected Allahabad Cases page 374 to which Mr. Saxena is an Editor .

Question: What do you think about the aforesaid verdict in which a living farmer who have been declared as deceased by unscrupulous people and he ( Shri Lal Bihari ) and he contested his case from 1976 to seek a declaration as to be still alive and whether our judiciary conferred with the power of judicial review under our constitution has been successful to deal with the plight of living dead ?

Answer :The constitution is supreme and all the three pillars functions under its strict supervision . the supremacy of the parliament and the power of the Hon'ble Constitutional Courts in India have gone through a consistent efforts for providing a harmonious construction to build up a foundation on which our country may survive . The doctrine of immunity from legislation against the enactment through legislation has undergone a great struggle whenever the Hon'ble Constitutional Court found the infringement of fundamental rights of the citizen . However on account of excessive burden and the need for securing the effective exercise of the judicial review by the Hon'ble Constitutional Courts even with regards to Administrative action , there is an unchecked flow of litigation for every invasion of the right under the garb of the infringement of the fundamental rights.

Question .Whether you speculate in this process any tough battle for securing the basic structure of our constitution with the doctrine of Supremacy of the parliament and how far it is important for the healthy growth of our welfare state .

Answer The rigours to demotion of judicial writ power by some of the constitutional amendments like 42nd Amendment has been declared ultra virus in Minerva Mills Case (1980) 3 S.CC 625 , Waman Rao case (1981) 2 S.C.C 362 and in L. Chandra Kumar case (1997 ) 3 S.C.C 261 reaffirming the majority verdict of the landmark judgement of Keshavananda Bharti case of 13 judge constitution bench of the Hon'ble Supreme Court . The jurisdiction conferred upon the Hon'ble constitutional Courts including the High Courts under Article 226 and Article 227 has been held as a part of the basic structure of the constitution. Thus not even the power of legislative enactment but also the power conferred under Article 368 to Amend the constitution may be subjected to judicial review by the Apex Court .

Question Whether you think that in this process the expression "Procedure established by Law " as enshrined in Article 21 has now been replaced by "due process of law" as evident in American Constitution ?

Answer: Article 14 has two concepts which is a unique feature in Indian constitution. Most of the constitutions of the world either speaks of "equality before the law" or the "equal protection of the laws". Both these concepts although appears to be the same are not actually the same . The equality before the law refers as to providing the equality before the substantive laws of the nation as illustrated in Article 15 to 18 and also under Article 38, 39, 39A, 41and 46 of the constitution . The connotation equal protection of law contemplates for minimising the inequalities and for eliminating the inequalities in status , facilities , opportunities , values of lives with social care towards educational and economic interest not only amongst citizen but also amongst the group of the citizens. This Article forbids class legislation except being founded on an intelligible differential and to have a rational relation to the object sought to be achieved by the statute in question . The test of classification must be rational . However by the efflux of time , Article 21 which is couched in negative language by the framers of our Constitution has undergone the major change by interpretation through its positive angle having the inhibition contained therein i.e. "life " as synonymous to "livelihood" by taking into consideration that by abrogation and subjugation of the means of the living there shall be no life . This was done to get the rid of the radical innovation providing an instrument of status quo upholding the traditions of Anglo-Saxon jurisprudence and resisting radical innovation in the use of judicial power to promote social change by the so called judicial activism . The other concepts such as "Rule of Law" , "Judicial restraint" , "Separation of power", supremacy of fundamental right s over directive principles and "Procedure established under Law" conveniently to avoid change whenever possible through the assistance of two concepts of Article 14 as whenever required delete it and whenever inevitable dilute it as far as practicable and thus the discretionary powers were exercised in the different manner by inviting the diversities in the opinion of the constitutional Courts while dealing with Quasi judicial actions .

Question : Thus you mean to say that Article 21 of the constitution is not a fundamental right of the citizen as is being dealt with by the Hon'ble Supreme Court and has been included in the chapter of fundamental rights ?

Answer True , Article 21 has been included in the chapter of fundamental right under our constitution but the same is a fundamental duty of the government as to provide protection against depriving any person of his life or personal liberty . There is only one individual fundamental right of the citizen i.e Article 19 . Article 25 and 26 is a collective right to the freedom of conscience and right to profess , practise and propogate religion and also to manage religious affairs . Thus every fundamental duty casted upon the government which is providing the protection to the individual may be read with the reasonable restrictions as contemplated in sub articles (2)to (6) of Article 19 of our constitution thus the constitution has provided a "check and balance" over the power of the Hon'ble Courts and the duties casted upon the government . In this manner the Hon'ble Courts while interpreting these Articles of fundamental rights may dealt with the individual as to whether the right which implies the forbearance to perform the duty by the Government has got the qualification prescribed in the yard stick of the reasonable restrictions or the constitution with the galaxy of so called fundamental right may be ruled in respect of its governance by the political set-up having co-ordination with divisive forces to the oppression of the people at large which has not been done after independence.

Question: What was the need of introducing Article 51A when already there were fundamental duties of the Government ?

Answer: Every right implies the forbearance on the part of other to perform his duty as right and duty is co-related and co-existent. After independence our country has been ruled with governance through laissez faire and the citizens have miserably forgotten there duties under the spirit of availing an aspirant cherished freedom . Thus the chapter of unenforceable fundamental duties was introduced with effect from 3.1.1977 by 42nd amendment .

Question : Why there is a pendency of number of litigation before the Constitutional Courts in which the case of the living people who have been declared as dead people in the official records have not been dealt with in time .?

Answer The right of the people has been considered in the different dimension against every atrocities committed by the administration in discharge of their duty as the custodian of the public trust . The concept of public trust doctrine was developed by the Constitutional Courts to provide the safety to an individual as susceptible to abuse in discharge of the role by our Constitutional courts as a sentinel on quivive . The maxim of "ubi us ibi remedium" (where there is a right , there is a remedy ) was sparingly applied in respect of administrative action without considering as to whether the same is quasi judicial or not . The separation of power which was embodied to certain extent in our constitution and having its elasticity to provide pervasive potency and versatile quality has been diluted in absence of any accountability towards administrative action. Thus there was a flow of litigation before the constitutional Courts even in respect of violation of every right for which the administrative authority were responsible to exercise their power as the custodian of the public duty .Thus due to paucity of time , the genuine litigation was circumvented by unscrupulous litigation and there by suppressing the fundamental right of a bonafide citizen .

Question: Do you think that the present system can be rectified by enacting more legislation by the parliament or it may be left to the Constitutional Courts to eradicate the prevailing maladies ?

Answer There must be an accountability fixed with every officer and bureaucrats in the society regarding there abuse of power and judicial review which comprises the power of judicial superintendence over every sub-ordinate authority may be necessarily applied by the higher judiciary .There is a requirement of complete separation of power between three institutions on which our democratic set-up is dependent the adequate punishment be implemented in the deterrent and punitive manner as to create an example to the other wrong do-er specially under the circumstances when the integrity and the prosperity of the nation is involved. In case of malafide exercise of power not only the action which is done contrary to the object may be rectified but there may be a judicial scrutiny for recommending the departmental disciplinary proceeding against the official who has passed such order with extraneous considerations. There should be the limit over the privilege conferred with every public servant who is not only a custodian of the power but also owe the duties towards the citizens who are considered in our constitution as the sovereign of the sovereignty .

Question: What do you think to be the source of the power of judicial review ?

Answer :It may be traced to the classic enunciation of the principles laid down by the Chief Justice John Marshall of U.S Supreme Court in Marbury Vs Madison ( 1 Crunch : 2 L Ed 60 (1803 ) ) as the origin of this power is never attributed to one source alone . It has been laid down that the judiciary dealing with interpretation of Law is duty bound while expounding and interpreting the Law and to see as to whether the Law is repugnant to the settled norms of the constitutions otherwise the same be declared as void .In America where the Supreme Court has assumed extensive power of reviewing the legislative Acts while in our constitution this power is conferred by the expressed provision contained in Article 13 of the constitution of India . Thus the power of judicial review has now considered to be an integral part of our constitutional system .

Question: What do you think to be the role of the Advocates in the process of judicial discipline and thereby providing a check and balance over mis utilisation of the judicial and quasi judicial power by the public servant ?

Answer : In America the Lawyers may conduct the investigation in respect of the wrong committed with the people through their own investigation agencies and there is there is the power vested with every officer to deal with the mis use of power by any person without taking the accent from the higher elechon in the hierarchical set-up of superior authority in some of the European countries .However in India we have no such power to fix an accountability towards a public wrong by an Advocate and also by any honest official as there is a vicious circle in our Bureaucratic set-up where there is larger privilege and lesser responsibility. Thus we have become a silent spectator of the situation which is going to be the worst by the process of time . The apathy of the intellectual echoes back into a vacuum which has neither any ventilation for providing the fresh air to our people . Till such time when the intellectuals in the society may not be allowed to run the public administration nothing can be achieved in our nation.