EKKENTROS FORUM
The Matter: Report of the proceedings of the discussion held on 15-1-08(Tuesday)
Venue: Residence of Dr.Babu Ravindran, Tellicherry
Coram: Eight members present. Prof. Mohanan Nair was out of station.
Subject: Human Rights
The report of the last discussion was accepted unanimously after a minor correction. After the Forum’s invocation the discussion on Human Rights was initiated by Sri. K.V.Kunhikrishnan. After an excellent and sumptuous dinner hosted by Mrs Radha Ravindran, and participated by Mrs.Kunhikrishnan, Mrs.Shakila Hay, Mrs. Khadija Abdulla, and Hema Bhaskaran, the meeting dispersed at 11 PM.
Sri.K.V.kunhikrishnan: When we talk of Human Rights we do not generally mean the rights that we expect each of us to have as human beings living in this world. Such a concept would mean all the very different notions about individual freedom and rights that each of us may have. What we mean about Human rights is only the Universal Declaration of Human Rights that was adopted by the U.N. General Assembly on 10th December 1948.
As we all know the United Nations came into being immediately after the IInd World War in 1945, as an attempt to stop the possibility of any further World Wars. In 1946 the UN appointed a commission to formulate the Human Rights that any citizen of the world could enjoy without restraint. The commission was appointed under the Economic and Social Council of the U.N. The U.N. had already affirmed its faith in Fundamental Human Rights in its charter, and the declaration of human rights was meant to pave the way for its implementation.
There are thirty articles in all in the declaration. The first twelve articles of the declaration stress equality and liberty to all without any discrimination, abolition of slavery, security and safety to life, recognition and honor, justice and equality before law, and natural justice. Art.13,14, and 15 refers to freedom of movement, asylum and freedom to change nationality. Right to marriage by mutual consent is assured by art.16, and art.17 preserves the right to property. Freedom of thought and expression are covered by art,s 18 and 19. There are also rights for assembly and elections, which are assured under articles 20 and 21. Other political rights like right to work, rest, leisure, standard of living, and freedom for self development are covered by articles 22 to 25. Separate provisions are there for education and culture in articles 26 and 27. The rest of the three articles 28, 29, & 30 are of a general nature to establish a set up to implement these provisions, imposing some limitations to the freedoms subject to the general purpose of the UN Charter, and to avoid misinterpretation of the provisions in the declarations.
We can thus see that the declarations are elaborate and rather exhaustive. But alas, the declaration does not have sufficient teeth to impose it on the nations of the world. It has no legal validity or backing unless each country incorporates the same in their constitutions. The declaration itself is recommendatory in nature and is a standard prescribed for such incorporation. For example, in our own constitution, which came later on in Nov 1949, most of the provisions are incorporated in the Fundamental Rights, but with modifications. Most of the nations violate the provisions of the declaration, in what are called ‘public interests’, by enacting special emergency laws. But although not strictly legal, the Declaration of Human Rights have powerful moral authority, which is very often used (or even misused) by superpowers as a stick to beat other nations with. And they themselves, like in the case of Guantnamo Bay, are sometimes caught violating human rights.
Prof. Sankarankutty: Violation of Human Rights is naturally a matter for condemnation. All the same, certain degree of cruelty becomes necessary to be practiced by those who defend the rights. The question is how do one deal with the terrorists? Normal mild approach would not do.
Prof. Richard Hay: And where is Human Rights in the matter of freedom of expression? Take the case of Taslima Nasreen. She was hunted out for writing a novel.
Prof. Sankarankutty: She criticized the clergy and the whole community turned against her, even in India. She has a right to express her views. In Hyderabad in India, she was physically manhandled. She is a Bangladeshi who was denied any Human Rights in her own country. She was to be safe in India, but that also turned out to be unsafe for her. It is a chain of Idea Vs Politics Vs Human Rights.
Dr. Thomas: There is a view that she is uncomfortable with herself like Kamala Surayya, and that is why both of them behave eccentrically.
Sri.Kunhikrishnan: That would be no excuse for denying freedom of expression. Now to continue, there are some mechanisms to implement the Human Rights. The covenant on Economics, Social and Cultural Rights, the Convention against Torture, the conventions for women’s and children’s rights and the Convention against Racial discrimination are some of them. Again, these are applicable to the member nations who have entered into the respective agreements. In so far as India is concerned it is a signatory to all major conventions. Although all cases relating to Human Rights are still dealt with under the common criminal law of the country, we have an effective monitoring system under the Human Rights Protection Act. Under this Act, there is a National Commission for Human Rights, and State Commissions in the States. The commission takes notice of human right violations and receives complaints, and proceeds to see that justice is done. One sessions court in each district is designated as Human Rights Court for giving speedy justice. The commission takes up cases suo motu when violations come to its notice.
In Law, if precisely worded, there is not much room for any free thinking. The provisions have to be strictly interpreted according to rules of interpretation. There are many books on principles of statutory interpretations, on jurisprudence, and on Natural justice. There are also binding decisions of the Supreme courts, which have the force of law. While passing comments and references in the course of a judgment, called ‘obiter dicta’, of the Apex Court are not Law. Substantial findings of the courts are as good as any enactment by parliament. But yet they are only interpretations. It would be foolish to criticize the judge, as the present day politicians often do, for a decision because he has no other alternative but to go strictly according to the principles of interpretation. If the politician cannot agree, he has the remedy to change the law, which is within his area of action. Thus in Law there is no scope for free thinking.
That is not the case with Natural Human Rights. Having been born in this world, has he not the basic rights to keep his life safe till nature takes it back, pursue happiness and avoid unhappiness, and have his minimum needs met? But naturally, others have also such rights which he has to recognize and concede. Therefore he must be prepared to compromise, and find a balance. That is what is called living in a society. Man is thus a social being.
Stretching the idea further, the question will arise whether only man has rights in this world? What about animal rights? They have also the right to live as comfortable as possible. Among themselves survival of the fittest is Nature’s rule. But vis-à-vis the humans it is the duty of man to recognize the rights of animals and to see that a balance is maintained by doing only the minimum harm to the animals in the course of pursuit of his own happiness. He should not have the attitude that all other beings are here on earth to satisfy the pleasure of Man as maintained by the captain of the ship on which Mahatma Gandhi traveled.
Sometimes one has to kill or destroy insects and animals, knowingly or unknowingly. This cannot be avoided. That is definitely part of nature. That is why perhaps the Puranic writers invented the system of giving ‘Moksha’ to their enemies whenever they needed to kill. There was nothing wrong in Rama killing Bali hiding behind a tree, because he was giving him Moksha!. So many instances of giving such Mokshas to Rakshasas and demons can be found in the Epics.
Ultimately one has to find his own balance among human rights, animal rights, insect rights, and Rakshasa (murderers, rapists, and the like) rights, to live properly in this world!
Saturday, January 19, 2008
limit of freedom3
EKKENTROS FORUM
The Matter: Report of the proceedings of the discussion held on 18-12-07(Tuesday)
Venue: Residence of Dr.Md.Abdulla, Marayakulath, Nittur P.O., Tellicherry
Coram: Eight members present. Prof. Mohanan Nair was out of station.
Subject: Limits of Freedom (Cont’d)
The report of the last discussion was accepted unanimously. After the Forum’s invocation the discussion on Limits of Freedom was cont’d by Dr. K.P.Thomas and Dr. Md Abdulla. After an excellent and sumptuous dinner hosted by Mrs Khadija Abdulla, the meeting dispersed at 11 PM.
Dr.K.P.Thomas: As the subject has been already discussed in some detail I would like first to touch upon certain ‘microscopic’ aspects of the limits of freedom like the misuse of freedom on health and environment. From birth our freedom is limited to a culture of expectations. We may call it a parental culture. Only a genius can cut himself away from it and be a free thinker and a free activist. But again, such free thinkers will have to suffer the constraints of poor health, lack of finance, lack of family and social supports. Changes are taking place very fast at present. Limits of nations and boundaries of countries are almost disappearing in a changing world. Slavery has disappeared. Of course, in India there was no slavery as such.
Prof Sankarankutty: Whatever slavery was there was due to the mis-interpretation of Manu Smrithi.
Dr. Thomas: Actually freedom is now available to everybody. But it may be restricted privately or personally. Private restrictions and controls cannot be avoided. As said earlier, health and environment can take away one’s freedom. Hence I am inclined to say that absolute freedom is a mirage. We are relatively free if left with funds, good health, love, and an atmosphere of our liking, which however, does not impinge on other people and hurt them. This can be found in the teachings of all great masters, Jesus Christ, Buddha, Mohammed, Sankaracharya, and Sree Narayana Guru. But their followers misinterpreted and vitiated the teachings.
We cannot separate our present from our past or the impending future. I feel that in these current times we are relatively free in relation to choosing or practicing our profession, business, religion, political activism, and any other activity. With increasing literacy, I find that many people are liberated from ignorance and are reasonably knowledgeable in regard to their and other people’s freedom.
Freedom from disease is one aspect I am interested in, and it is an aspect dependant upon availability of nutrition and awareness of healthy living. Presently we are having global pollution, global warming and loss of our heritage of the nature’s wonders, conducive to the control of weather. And the result is loss of freedom to have clean air to breathe, good water to drink, and uncontaminated food to eat. All these are now curtailed by our own misdeeds.
The Superpowers were indulging in biological warfare in Vietnam and Cuba. In order to subjugate the second and third world countries, the super powers were, and still are, indulging in a manner of freedom that hurt and damage weaker countries in a large scale. As a result we are in constant fear of a denuded environment in which freedom may lose its meaning by the destruction of our very moorings and habitats as I had already mentioned.
We are all slaves of time and space, and therefore our freedom is very relative to these parameters. We are bound to the universal consciousness from which we have evolved through many a generation. We are bound by its inherent rhythm of alternating fear and hope, towards a better future and ultimate salvation.
Another situation is where the freedom is being restricted by economical and political maneuverings. To engage in transactions with dependable people with no hidden trappings elaborated, has always been a pleasure. But what is happening today is similar to the old ways of Zamindars who trapped the tenants by financial ‘help’ of advancing to enslave them. The present day financial banking institutions entrap their clients in debt by invoking hidden charges, and involved peculiar calculations not understood by the clients.
Eternal vigilance is necessary to keep ourselves free economically, politically, religiously, professionally and entrepreneurially. This is because one man’s loss is another man’s gain, and the principle of the survival of the fittest comes into play.
Individually, we are bound to the family and society by love and its demands. An element of enslavement does occur, but may be more pleasurable than otherwise. Detachment of the type practiced by the Rishis of the orient produced several streams of thoughts, philosophy and off shoots of religion.
When scientific revolution took place in the west, everything was put to test. Science started unfolding nature, and in its advancement, even the secrets of the human body got revealed. Different hormones controlled our bodies. Freedom is restricted to different organs and cell groups that are stimulated whenever there is need for better function. One interesting thing revealed by science is that there is a love hormone called Oxytocin that is responsible for the deep bonding of the mother and her child. Endorphines and Pheramones play important roles in our body functioning.
The theory of natural selection seems to have ultimately produced a superior race about 4000 years ago in the formation of Abraham-> Issac-> Jacob, and the twelve children of Jacob are the Jews or Israelites. They got enslaved in Egypt, and then in Babylonia, and then they were ruled over by the Roman Emperor. Later on they got spread in all countries, but got persecuted. Now they dominate Israel, which happens to be the leading financial lobby of N.America. The all time tragic holocaust story is kept alive by this Zionist lobby who dominate almost all profession in the world. One can say that they factually rule the world now. The other Aryan and Slav races come behind, and their cousin brothers, the Moslems are seen to be out and out prone to terrorize various governments. Thus it would appear that more than the nations it is the races that try for more freedom. The superior genetic frame will score over the lesser talented ones. Shall I at this level therefore define freedom as the chances to succeed in acquiring possessions? Non-Jews may have to play second fiddle. This seems to be how the world is destined according to the available holy texts.
Dr. Md. Abdulla: We have already discussed the ‘limits of freedom at length. We have covered the social, political, religious, mental, sexual etc.,etc. What I could make out from these discussions, in a nutshell, is that the ‘limits of freedom’ varies from person to person, at different occasions and situations, in different religions and beliefs, in different social and economic groups, and in different political systems and parties. We are therefore unable to arrive at a satisfactory conclusion of what exactly are the limits of freedom. In contrast, the Right of Freedom assured by the constitution of the country is more relevant, and if observed and followed by every individual in its true spirit, that would be more practicable. .
My discussion shall therefore be basing on ‘the rights of freedom’ based on the Indian constitution, the largest and most detailed of all the written constitutions of the world.
Personal liberty (freedom) is the most important of all fundamental rights. The six freedoms under the constitution guaranteed to the citizens are,
1. Freedom of speech and expression,
2. Freedom of assembly,
3. Freedom of association,
4. Freedom of movement,
5. Freedom to reside and settle,
6. Freedom of profession, occupation, trade or business.
These six freedoms are, however, not absolute. Absolute individual rights (Freedom) cannot be guaranteed by any modern state. An organized society is the pre-condition of civil liberties. There cannot be any right which is injurious to the community as a whole. If people were given complete and absolute liberty without any social control, the result would be complete chaos and ruin. Liberty (freedom) has to be limited in order to be effectively possessed. For liberty (freedom) of one should not offend the liberty (freedom) of another.
Man as a rational being desires to do many things. But in a civil society, his desires have to be controlled, regulated, and reconciled with the exercise of similar desires of other individuals. Each of the above rights as guaranteed is therefore, restricted by the constitution itself, by conferring upon the state the power to impose, by law, reasonable restrictions as may be necessary on the larger interest of the community.
Reasonable restriction means that any restriction imposed on a person in the enjoyment of his rights should not be arbitrary or of excessive nature beyond what is required in the interest of the public. Reasonable here would imply intelligent care and deliberation that reason dictates which strikes a proper balance.
We are all aware of the fact that as per the constitution the system to safeguard the ‘Right of Freedom’ is the judiciary and its apex body is the Supreme Court of India. Of late we have been experiencing instances of what is called ‘Judicial Activism’.
Alladi Krishnasway Iyyangar, one of the founding fathers of our constitution rightly observed that, the doctrine of judicial independence is not raised to a dogma so as to enable the judiciary to function as a kind of super legislature or super executive. The judiciary, as much as the legislature and the executive, is dependant for its proper functioning upon the co-operation of the other two.
The forthright observation of the Supreme Court bench comprising of Justice A.K.Mathur and Justice Markhanday Khatju on the theme of judicial activism, that “judges must know their limits and must not run the government” reflects the welcome realization on the dangers of runaway judicial activism.
The emergency declared in 1975 and its aftermath brought about a sea change in the attitude of the government towards the judiciary, and the Supreme Court in particular. It is only due to the lessons learned from the emergency that a restrained and subdued Government that came back to power in Feb 1980 decided that it was no more prudent and wise to continue any confrontation with the judiciary.
Judges are not too eager to run the government. They have reluctantly done so when elected legislature failed to discharge their duties, or the executive did not act responsibly. The Supreme Court took Suo Motu action on the tragedy in Ervadi, Tamil Nadu, where 28 mentally ill chained inmates died in a fire. Can we call it judicial overreach? Again, what about the cases in which the legislature issued privilege notices against media persons for expressing their views? Are actions in these cases judicial overreach? Of course there has been certain amount of overreach in some judicial matters. But by and large, it is true that but for the timely intervention by the courts, democracy, secularism and freedom of expression would have been endangered.
Judges, in their over enthusiasm, are sometimes playing to the gallery in allowing petitions on subjects that have no relevance to the constitutional schemes. Speaker of the Lok Sabha, Somnath Chatterji and former Chief Justice of India, J.S.Verma have expressed concern over the tendency of courts to stray outside their proper constitutional domain. Invariably the judges find some legal basis for their orders through an expansive reading of some rights, usually through right to life (Article21 of the constitution), and the right of equality (Art.14), or through detailed orders on the presumed duty of the executive. Such dangers of ‘unbounded judicial creativity’ are well recognized.
The people are forced to approach the judiciary when other remedies are not available. Public interest litigation pleas have proved to be a strong and potent weapon in the hands of the courts to unearth many a scam and corruption case in public life.
In spite of the exalted position the judiciary enjoys, like all other institutions it is made up of people, and people cannot be infallible. While there is a check on the legislature through the elections every five years, the mechanism to rein in an errant judge is rather dismal in our country.
Art.21 of the Constitution declares while laying down the fundamental rights, that no person shall be deprived of his life or personal liberty (freedom) except according to the procedure established by Law. The Supreme Court breathed life into these words by expanding the meaning of the words ‘right to life and freedom’ as not mere animal existence, but as life with human dignity with all faculties intact and the basic right to freedom.
The Matter: Report of the proceedings of the discussion held on 18-12-07(Tuesday)
Venue: Residence of Dr.Md.Abdulla, Marayakulath, Nittur P.O., Tellicherry
Coram: Eight members present. Prof. Mohanan Nair was out of station.
Subject: Limits of Freedom (Cont’d)
The report of the last discussion was accepted unanimously. After the Forum’s invocation the discussion on Limits of Freedom was cont’d by Dr. K.P.Thomas and Dr. Md Abdulla. After an excellent and sumptuous dinner hosted by Mrs Khadija Abdulla, the meeting dispersed at 11 PM.
Dr.K.P.Thomas: As the subject has been already discussed in some detail I would like first to touch upon certain ‘microscopic’ aspects of the limits of freedom like the misuse of freedom on health and environment. From birth our freedom is limited to a culture of expectations. We may call it a parental culture. Only a genius can cut himself away from it and be a free thinker and a free activist. But again, such free thinkers will have to suffer the constraints of poor health, lack of finance, lack of family and social supports. Changes are taking place very fast at present. Limits of nations and boundaries of countries are almost disappearing in a changing world. Slavery has disappeared. Of course, in India there was no slavery as such.
Prof Sankarankutty: Whatever slavery was there was due to the mis-interpretation of Manu Smrithi.
Dr. Thomas: Actually freedom is now available to everybody. But it may be restricted privately or personally. Private restrictions and controls cannot be avoided. As said earlier, health and environment can take away one’s freedom. Hence I am inclined to say that absolute freedom is a mirage. We are relatively free if left with funds, good health, love, and an atmosphere of our liking, which however, does not impinge on other people and hurt them. This can be found in the teachings of all great masters, Jesus Christ, Buddha, Mohammed, Sankaracharya, and Sree Narayana Guru. But their followers misinterpreted and vitiated the teachings.
We cannot separate our present from our past or the impending future. I feel that in these current times we are relatively free in relation to choosing or practicing our profession, business, religion, political activism, and any other activity. With increasing literacy, I find that many people are liberated from ignorance and are reasonably knowledgeable in regard to their and other people’s freedom.
Freedom from disease is one aspect I am interested in, and it is an aspect dependant upon availability of nutrition and awareness of healthy living. Presently we are having global pollution, global warming and loss of our heritage of the nature’s wonders, conducive to the control of weather. And the result is loss of freedom to have clean air to breathe, good water to drink, and uncontaminated food to eat. All these are now curtailed by our own misdeeds.
The Superpowers were indulging in biological warfare in Vietnam and Cuba. In order to subjugate the second and third world countries, the super powers were, and still are, indulging in a manner of freedom that hurt and damage weaker countries in a large scale. As a result we are in constant fear of a denuded environment in which freedom may lose its meaning by the destruction of our very moorings and habitats as I had already mentioned.
We are all slaves of time and space, and therefore our freedom is very relative to these parameters. We are bound to the universal consciousness from which we have evolved through many a generation. We are bound by its inherent rhythm of alternating fear and hope, towards a better future and ultimate salvation.
Another situation is where the freedom is being restricted by economical and political maneuverings. To engage in transactions with dependable people with no hidden trappings elaborated, has always been a pleasure. But what is happening today is similar to the old ways of Zamindars who trapped the tenants by financial ‘help’ of advancing to enslave them. The present day financial banking institutions entrap their clients in debt by invoking hidden charges, and involved peculiar calculations not understood by the clients.
Eternal vigilance is necessary to keep ourselves free economically, politically, religiously, professionally and entrepreneurially. This is because one man’s loss is another man’s gain, and the principle of the survival of the fittest comes into play.
Individually, we are bound to the family and society by love and its demands. An element of enslavement does occur, but may be more pleasurable than otherwise. Detachment of the type practiced by the Rishis of the orient produced several streams of thoughts, philosophy and off shoots of religion.
When scientific revolution took place in the west, everything was put to test. Science started unfolding nature, and in its advancement, even the secrets of the human body got revealed. Different hormones controlled our bodies. Freedom is restricted to different organs and cell groups that are stimulated whenever there is need for better function. One interesting thing revealed by science is that there is a love hormone called Oxytocin that is responsible for the deep bonding of the mother and her child. Endorphines and Pheramones play important roles in our body functioning.
The theory of natural selection seems to have ultimately produced a superior race about 4000 years ago in the formation of Abraham-> Issac-> Jacob, and the twelve children of Jacob are the Jews or Israelites. They got enslaved in Egypt, and then in Babylonia, and then they were ruled over by the Roman Emperor. Later on they got spread in all countries, but got persecuted. Now they dominate Israel, which happens to be the leading financial lobby of N.America. The all time tragic holocaust story is kept alive by this Zionist lobby who dominate almost all profession in the world. One can say that they factually rule the world now. The other Aryan and Slav races come behind, and their cousin brothers, the Moslems are seen to be out and out prone to terrorize various governments. Thus it would appear that more than the nations it is the races that try for more freedom. The superior genetic frame will score over the lesser talented ones. Shall I at this level therefore define freedom as the chances to succeed in acquiring possessions? Non-Jews may have to play second fiddle. This seems to be how the world is destined according to the available holy texts.
Dr. Md. Abdulla: We have already discussed the ‘limits of freedom at length. We have covered the social, political, religious, mental, sexual etc.,etc. What I could make out from these discussions, in a nutshell, is that the ‘limits of freedom’ varies from person to person, at different occasions and situations, in different religions and beliefs, in different social and economic groups, and in different political systems and parties. We are therefore unable to arrive at a satisfactory conclusion of what exactly are the limits of freedom. In contrast, the Right of Freedom assured by the constitution of the country is more relevant, and if observed and followed by every individual in its true spirit, that would be more practicable. .
My discussion shall therefore be basing on ‘the rights of freedom’ based on the Indian constitution, the largest and most detailed of all the written constitutions of the world.
Personal liberty (freedom) is the most important of all fundamental rights. The six freedoms under the constitution guaranteed to the citizens are,
1. Freedom of speech and expression,
2. Freedom of assembly,
3. Freedom of association,
4. Freedom of movement,
5. Freedom to reside and settle,
6. Freedom of profession, occupation, trade or business.
These six freedoms are, however, not absolute. Absolute individual rights (Freedom) cannot be guaranteed by any modern state. An organized society is the pre-condition of civil liberties. There cannot be any right which is injurious to the community as a whole. If people were given complete and absolute liberty without any social control, the result would be complete chaos and ruin. Liberty (freedom) has to be limited in order to be effectively possessed. For liberty (freedom) of one should not offend the liberty (freedom) of another.
Man as a rational being desires to do many things. But in a civil society, his desires have to be controlled, regulated, and reconciled with the exercise of similar desires of other individuals. Each of the above rights as guaranteed is therefore, restricted by the constitution itself, by conferring upon the state the power to impose, by law, reasonable restrictions as may be necessary on the larger interest of the community.
Reasonable restriction means that any restriction imposed on a person in the enjoyment of his rights should not be arbitrary or of excessive nature beyond what is required in the interest of the public. Reasonable here would imply intelligent care and deliberation that reason dictates which strikes a proper balance.
We are all aware of the fact that as per the constitution the system to safeguard the ‘Right of Freedom’ is the judiciary and its apex body is the Supreme Court of India. Of late we have been experiencing instances of what is called ‘Judicial Activism’.
Alladi Krishnasway Iyyangar, one of the founding fathers of our constitution rightly observed that, the doctrine of judicial independence is not raised to a dogma so as to enable the judiciary to function as a kind of super legislature or super executive. The judiciary, as much as the legislature and the executive, is dependant for its proper functioning upon the co-operation of the other two.
The forthright observation of the Supreme Court bench comprising of Justice A.K.Mathur and Justice Markhanday Khatju on the theme of judicial activism, that “judges must know their limits and must not run the government” reflects the welcome realization on the dangers of runaway judicial activism.
The emergency declared in 1975 and its aftermath brought about a sea change in the attitude of the government towards the judiciary, and the Supreme Court in particular. It is only due to the lessons learned from the emergency that a restrained and subdued Government that came back to power in Feb 1980 decided that it was no more prudent and wise to continue any confrontation with the judiciary.
Judges are not too eager to run the government. They have reluctantly done so when elected legislature failed to discharge their duties, or the executive did not act responsibly. The Supreme Court took Suo Motu action on the tragedy in Ervadi, Tamil Nadu, where 28 mentally ill chained inmates died in a fire. Can we call it judicial overreach? Again, what about the cases in which the legislature issued privilege notices against media persons for expressing their views? Are actions in these cases judicial overreach? Of course there has been certain amount of overreach in some judicial matters. But by and large, it is true that but for the timely intervention by the courts, democracy, secularism and freedom of expression would have been endangered.
Judges, in their over enthusiasm, are sometimes playing to the gallery in allowing petitions on subjects that have no relevance to the constitutional schemes. Speaker of the Lok Sabha, Somnath Chatterji and former Chief Justice of India, J.S.Verma have expressed concern over the tendency of courts to stray outside their proper constitutional domain. Invariably the judges find some legal basis for their orders through an expansive reading of some rights, usually through right to life (Article21 of the constitution), and the right of equality (Art.14), or through detailed orders on the presumed duty of the executive. Such dangers of ‘unbounded judicial creativity’ are well recognized.
The people are forced to approach the judiciary when other remedies are not available. Public interest litigation pleas have proved to be a strong and potent weapon in the hands of the courts to unearth many a scam and corruption case in public life.
In spite of the exalted position the judiciary enjoys, like all other institutions it is made up of people, and people cannot be infallible. While there is a check on the legislature through the elections every five years, the mechanism to rein in an errant judge is rather dismal in our country.
Art.21 of the Constitution declares while laying down the fundamental rights, that no person shall be deprived of his life or personal liberty (freedom) except according to the procedure established by Law. The Supreme Court breathed life into these words by expanding the meaning of the words ‘right to life and freedom’ as not mere animal existence, but as life with human dignity with all faculties intact and the basic right to freedom.
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