Dear all ! recent trend in judicial pronouncements seems to provide legal protection to an act that is not forbiden by law. this can be seen in matrimonial disputes and disputes relating to liberty of an unmarried lady. An unmarried lady commits no offence even if she cohabits with a married man.In this situation man also does not commits adultry. moreso, the judiciary is ready to protect and ecourage the live in relations without marriage. Like this there may be many acts that are not expressly forbiden nither expressly permitted by law. In such cases this is high time to think as to - what criteria should be adopted by courts?
Well the query is no doubt a thought provoking matter.I am of the view that, Such a situation may be viewed from two angle. One that is personal and the other General, general in a sense that effect the public at large. When there is a vacum in law effecting the general public, Court can legislate to fill the vacum awaiting the Legislation, but in personal matter, one only has to see whether the law prohibit it in positive sense, if there is no prohibiion or forbidden by law one can not be punished, though it may be morally wroung.But the law is concerned with positive law not moral mores of the society.
I always insist that moral values should not be overlooked while implementing or interpreting the law. morality is more stable than law. prevalent western liberty movement has short life as it is self distructive.
To encourage a balenced approach, I have intoduced a term 'Vidhi-yoga' in the field of jurisprudence. Law and legal system has to take care of each and every aspect of social interest.
thanks dear assumi. vitually I had intoduced the concept of "Vidhi yoga" in 2004 throu moot court classes in allahabad university. it was highly appreciated by students as well as teachers of law. it is being accepted and supported by senior professors of jurisprudence in Allahabad university and BHU. propagation and application of this concept is one of the objectives of 'Socio-legal Sensitization Society' of which I am national coordinator.
Hallo Doctor. What is Vidhi Yoga and the lagal impediments of it.
About the querry may I enlighten you that the court made legislation when the law is blank and vaccum always tried to fill the lacuna of the social para meters. That is a process which the court is expected to do.
dear suresh ji ! Vidhiyoga can be translated as yoga of law or legal yoga . yoga keeps the body and mind fit and balenced. discipline is the first and foremost condition in practicing yoga. if law is taken in same manner , it will work for balenced development of society. more discussion to be continued in a separate thread.
now coming to your response to the present thread, i agree with your opinion that the court has power to fill the blanks in the ends of justice . but the question is what criteria should it adopt while making a judicial legislation regarding matters involving public policy or moral health of society? there is one more important thing to be noticed that a court decision , without application of legislative tools, is opinion of only one, two or a few members of judiciary . can it be compared to a law passed by legislature which considers opinions of so many institutions and debate of public representives on the floor of the house?
It is a tough task for the courts because, the court can punish the persons only for the violation of law in force. It can only adjudicate on the basis of the evidences available. Article 20(1) of the constitution says about expost facto law which deals about punishing a person only for the violation of the law in force at the time of cimmission of the offence and no person shall be punished for the acts that are not tabooed by the laws . Therefore, it is the duty of the legislature to bring in suitable amendments to prevent the commission of the acts that are polluting the society and the courts cannot be blamed.