Democratic process for political representation

Contitutionalism-  ‘The very essence of Judicial Duty’

By professor and adv. Guru Balkrishna Pandipeddh

Bombay High Court

H G Wells : ‘Human History is in essence of history of Ideas’.(Bartlet Familiar Quotations , 720 (15th Edn. 1980)

Chief Justice Mr. John Marshall:

Power to determine  cnstitutionality  ‘is  of the judicial duty’ (Marbury v Madison, 1 Cranch, 137 , U. S.  1803)

To an American interested  in the development  of the Marshall  

How Indian courts need to appreciate, I write herebelow.

Constitutionalism means what is natural justice under Art.14 ; but when I see how Indian governments failed the test of constitutionalism so too the judicial courts.

Democracy is the rule by people for people to the people, so legislators alone determine cannot determine what is to be the law?

How, see IPC Sec 124 - sedition is totally misused in India when they hang some opposing forces’ merceneries like Afzl Guru, Ajmal Kasab, Memon..and so on ; even judiciary is too tainted when it allowed hanging of these men -  if you reason with how Mahatma Gandhi when he was charged under the same section 124, how he was let off - if British judges followed what UPA II  did in 2012 and 2013, naturally still indians would have been slaves.

In all democracies opposing voice is normal, those voices cannot be gagged was the view British judge took when he decided on MK Gandhi sedition case prosecution filed then; British government did not file any appeal but just released him is the note worthy thought like that of John Marshall, Marbury v Madison (1803).

Therefore it amounts to people in india really do not understand what is constitutionalism; that is again seen blatantlly when Lok sabha speaker suspended Md. Owai on MIM of Hyderabad, when he refused to say Bharat Mata Ki Jai, under Art.19 r/w Art 21 he has a fundamental right to hold his own personal opinion, he cannot be suspended or removed from Lok sabha as he still represents his constituency at Hyderabad.

If ‘creamy layer’ among backward classes demand ‘reservation’, they can as a shade of opinion; but another shade of opinion is there is no caste as such so reservations should be removed is an another view, nothing wrong, neither can gag the other;

In fact there are no castes, time immemorial in hindu mythology and scripttures, but just some division of labor ideas only, is held in Maha Bharat or Ramayan and Upanishads, as also DNA of 6 lac years found human race of Neanderthall persons assert all brlonged to one race only, that is anthroppology. When so how can governments with their scanty knowledge grant reservartions to people on their own without tacit referendumn bassed 60 or 70% of peoples’ views, that view is indeed tenable, the constitutional; courts should have questioned any government besides all succeeding governing agencies. If not judiciary fails in its obligations under Art 51A of the constitution of India.

Why a few are appointed as judges, why a few are advocates, why certain people are called petitioners, why a certain few are called defendants/respondents to get erudite views of the bench, by opresenting their arguments; after all the benches are expected to have impartial experts on their panel to be like Amicus Curies, to help them appreciate the issues rightly or reasonably.

Reasonableness is not  based on any empathy or sympathy but right reasoning quoting various shade of opinions of vatrious  earlier benches under ‘stare deco\is’ and ‘ratio decidenty’  or ‘obiter dicta’ etc. Without that. No judgement can be called a meaningfiul judgement.

If such judgement surface it is like questioning nature that how can the black holes collide ab]nd affect the people, a shiboleth indeed.

When we  declare some ultra vires to coinstitution if any statute is questioning the very validity of the constitution principles, like the schedle IX inserted in the the First constitutional  Amendment in India.

Judges shall do their consistent duties, might be small error are permissible but not himalayan blunders to out law the constitutional principles; just becasae some hon. SC gave the judgement cannot make the said ‘judgement’ as a divine ‘Oracle’; so it is obviously questionable;

Governmernts are run by ‘defacto’ law makers, not dejure citizens themselves; so obviously burden on law makers is indeed very huge and every law maker need to know.

(Part I)

It is a well known fact, the abuse/ misuse of due process of law for political or personal grudges by filing false cases is one of the greatest abuses/ misuses of the very purpose of Constitution and rule of law. Unless there are very stringent penalties for abuse/ misuse of due process of law especially by police, very little can be done to save this country from self destructing itself. PIL is needed for this urgently because politicians are not going to do anything, they have conflict of interest, when in power they abuse/ misuse due process of law as easy and safe weapon against their political opponents or for malafide and vengeful motives.